Hi' ssct • / ins (Snrnell 3jaui ^rljnnl Cibrarjj Cornell University Library KF8868.1.A13 1875 A collection of forms of practice and pi 3 1924 020 633 453 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020633453 A COLLECTION OF FORMS PRACTICE AND PLEADING IN ACTIONS, WHETHER FOE LEGAL OE EQUITABLE RELIEF, AND IN SPECIAL PEOCEEDINGS; PBEPABED WITH KEFERENCE TO THE c CODJE OF r»ROOEIDTJIlE OF AMD AOAITED TO THE PBE3EHT PRACTICE IN THE eTATBS OIT OHIO, INDIANA, IOWA, WISCONSIN, MINNESOTA, CALIFORNIA, OREGON, MISSOURI, KENTUCKY, AND ALABAMA, AND THE ISLAND OF NEWFOUNDLA| WITH COPIOUS NOTES AND ATJTHI BY BENJAMIN YATJGHAN ^BOTT AND — "''" AUSTIN ABBOTT. VOLUME I. NEW YORK: BAKEE, YOOEHIS & CO., PUBLISHEES, 66 NASSAU STREET. 1875. /^^^ J S^ as Kntflred Recording to Act of CouEfross, in the year 1864, By benjamin VAUGHAN and AUSTIN ABBOTT, ia till) ('lBrk'6 Office of the District Court of the United States for the Southern Dlstnct of New York. PREFACE, The object of this work is to present to the American prac- titioner a well-selected and ample collection, of forms of Prac- tice and Pleading in civil procedure, with especial reference to the changes in practice introduced in many of the States by the Code of Procedure, or Practice Acts. We have been encouraged to undertake this work by the success of our Forms vf Pleadings in Actions under the Code of Procedure^ published in 1858. That work not only lias enjoyed a considerable circulation, but has been referred to with approbation, and its forms and its arrangement largely copied, in several subsequent publications. In the present volumes we have extended the work to include forms of Practice, so as to present in one series the whole pro- cedure of actions. The chajjter of Pleadings is based upon the former work; but the number of forms in this chapter alone is here about trebled ; and each form has been remodelled so as to make every improvement which intermediate decisions and the present more settled state of practice appeared to sanction. Numerous forms of proceedings, both before and after plead- ing, are now added, pursuing that general arrangement which the most useful works of the kind show to be convenient. In those respects in which the Codes of several States differ, these forms pursue the requirements of that of the State of New York ; but these respects are mostly technical details, in which the usage of his own State is familiar to every prac- titioner. In regard to substance, we believe that these forms will be found generally safe guide§ in practice wherever the distinction between forms of action, and the distinction between actions at law and bills in equity, have been abrogated. IV PREFACE. For the materials of this work we have preferred to rely chiefly upon actual precedents, which have been prepared for practical use, and subjected to the tests of actual litigation. Such material needs much revision to adapt it to general utility, but is obviously the best foundation for a collection like the present. For this we have had ample resources, both' in the accumulations of a considerable practice, and in the course of reporting cases of practice for a number of years, and also in the kindness of members of the profession in this city and elsewhere. In addition to these, such of the standard Keports as seemed most valuable for this purpose have been examined, to enrich these pages with what has the express sanction of judicial opinion. Many such forms in the Reports, which would too rarely be of use to afi'ord them space here, are referred to in notes, in connection with kindred forms in the text. In addition to these chief resources, we desire to acknowledge much indebtedness to the labors of others, and particularly to Bullen and Leake's Precedents of Pleading (Lond., 1860) ; Chitty's Forms of Practical Proceedings (9th ed,, Lond., 1862); McCall's Forms (New York, 1858) ; Nash's Pleading and Practice under the Ohio Code (Cincinnati, 1859) ; Swan's Pleading and Precedents under the Ohio Code (Cincinnati, 1861); Yan Santvoord's Equity Practice (Albany, 1862); Tillinghast and Shearman's Practice (Vol. I., New York, 1861); Equity Draftsman (4th Am. ed., Phil., 1861) ; Whittaker's Pr. (3d ed.. New York, 1863) ; Perkins' Pleading and Practice under the Code of Indiana (Indianapolis, 1859) ; Hoffman's Provisional Remedies (New York, 1862); and many other collections or treatises of less recent date. In affidavits, as well as in pleadings, the method of stating each distinct portion of the subject in a separate paragraph has been pursued, in conformity to the English practice. This method, though not required with us, has great convenience, particularly in a manual for the draftsman, because it calls attention, separately, to each material element jn the cause of action or the grounds of motion. In regard to the modes of statement employed in pleadings, PEEFACE. V affidavits, &c., it is to be observed that the practice does not establish invariable formulas, and therefore a precise uniform- ity of phraseology has not been studied. The practitioner will generally find the authorities relied on for sustaining each form indicated in the foot-notes, as well as brief statements of what may be serviceable in adapting the form to varying cases. Some of the forms, without doubt, may be made more concise without rendering them actually defective. But it is not the function of this work to attempt to improve the practice, but to present its best existing methods. It has been our endeavor not to put into the practitioner's hands such forms as would invite question, and would escape condemnation only by being intelligently defended ; but rather to give such as would rarely be questioned. Simplicity and conciseness we have diligently sought authority for; but have not ventured to go beyond authority in introducing those qualities. Benjamin Yattghan Aiiboit. Austin Abbott. New Toek. April, 1864. In this edition (1873) changes made in the rules of the Supreme Court of New York, in the revision of 1810, are noted in their appropriate places, with a reference in each to the rule as numbered in 1870. Citations of those rules which have undergone no change have not been altered. CONTENTS. VOLUME ONE. BOOK I.-A.OTIONS. CHAPTER I. Common Captions and Conclusions. No. Off Form. Paob Caption frf a preliminary petition to the court 1 3 Caption of a preliminary petition to a judge 3 3 Caption of a paper in a proceeding pending, not an action 3 3 Caption of a paper other than an order of court, in an action 4 3 Caption of an order of the court, in an action 5 3 Commencement and end of affidavit Aetiole IV. — BuildiTig Contracts. On a special contract, modified by parol ; with claim for extra work . 873 385 Article V. — Charter-parties. Ship-owner against charterer ; for freight 378 388 The same, a sliorter form 374 389 The same, against assignee of cargo 375 389 For not loading 370 289 For demurrage 377 290 Charterer against owner, for abandoning the voyage 878 390 Aeticle YI. — Guaranties. Against sureties for payment of rent 379 291 Against principal and sureties, in contract for work and services . . . 380 393 On an agreement to be answerable for the price of goods sold to a third person 381 393 On a guaranty of a precedent debt 383 294 Against the guarantor of a mortgage, to recover deficiency after foreclosure 383 395 Article VII. — Insurance. I. Fire policies. By the insured 384 297 The same, where the insurance was a renewal 385 398 The same, where the plaintiff purchased the property after the insurance 386 398 The same, correcting an alleged mistake 387 299 By the assignee of the insured, on an agreement to insure, policy never having been delivered 388 300 II. Life policies. ^ By executor 389 303 By wife, partner, or creditor, insured 390 303 By the atsignee in trust for the wife of the insured 391 304 CONTENTS. xix « III MAKINE POLICIES. OfFoiut. Pack On a valued policy on ship or cargo ■ 392 305 The same, on an open policy 393 307 Upon freight 394 308 Averment of loss by collision 395 308 Averment of waiver of a condition 396 308 For a partial loss and contribution to general average 397 309 Article VIII. — Leases. Lessor against lessee 398 310 The same, for a deficiency after a re-entry by the lessor 399 310 Lessor against assignee of lessee 400 311 Lessor against the executors of the lessee 401 312 Grantee of reversion, against lessee 403 313 Assignee of rent, against lessee 403 314 Heir of reversioner, against the lessee 404 314 Assignee of the devisee of the reversion and rent, against an assignee of part of the premises 405 314 Akticle IX. — Notes not Negotiable. On a note payable in case tlie profits of the maker's business exceed a certain sum 406 315 On a note payable in chattels 407 816 , Article X. — Subscription-papers. By a corporation, on a stock subscription 408 318 The same, a sliorter form 409 321 On a subscription to the expenses of a public object 410 323 Article XI. — Under talcing s. Short form, v^here the undertaking recites the facts 411 333 On an undertaking for costs and damages' on an attachment 413 334 On an undertaking given to obtain discharge of an attachment 413 335 On an undertaking for costs and damages on an arrest 414 326 On an undertaking of bail 415 327 On an undertaking given in proceedings of claim and delivery, to se- cure the return of the property 416 328 On an undertaking for costs of appeal 417 330 On an imdertaking given on obtaining an injunction 418 331 Section" XIII. — Complaints in Actions on Judgments. Generalform 419 333 The same, by an assignee 420 333 On a foreign judgment of a court of general jurisdiction 421 334 On a foreign judgment of a justice's court, or other inferior tribunal. 423 335 Section XIV. — Complaints in Actions for Unliquidated Damages for Breaches of Contracts. Article I. — Covenants 340 II. — Employment 352 III. — Indemnity 303 \X CONTENTS, No. OF Form, tagb IV. — Promise of marbiagb 869 V. — Sales op personal property 371 VI. — Sales of real property 378 VII. — Warranties 384 Article I. — Covenants. On a covenant against incumbrances on real property 423 840 The same, wliere the conveyance was expressed to be subject to a specified incumbrance 424 342 .On a covenant for quiet enjoyment 425 342 On a covenant of seizin, or of power to convey 426 343 On a covenant of warranty ; — for failure of title 427 344 The same ; — for deficiency in quantity .' 428 34.j On a grantee's covenant to build 429 846 On a covenant against nuisances ; the covenant being in a deed exe- cuted only by the grantor 430 346 On a continuing covenant to maiuiain a fence . . .' 431 347 Against tenant, for breach of covenant to keep premises in repair . . . 432 348 Against landlord, for breach of covenant to keep premises in repair, with special damage 433 849 Against landlord, for breach of covenant for quiet possession 434 350 Against landlord, for breach of agreement to complete demised prem- ises well 435 351 Article II. — Employment. By an employee, "discharged, or prevented from fulfilling his contract 436 852 By an employer, for employee's refusal to serve 437 353 By apprentice against master 438 354 By the master against the father of apprentice 439 354 For breach of contract to manufacture goods 440 355 For goods made at defendant's request, and not accepted 441 356 On a promise to manufacture wool into satinets 442 356 Against printer for not fulfilling agreement to print, and for injury to the stereotype plates 443 357 Against a builder for not completing his work; -with special damage by loss of rent 444 357 Against the same, for not well finishing a building 445 359 Against an attorney, for negligence in prosecution of a suit 446 359 Against the same, for negligent defence 447 360 Against the same, for negligence in examining a title 448 360 Against a pliysician for mal-treatment 449 361 Agaiiist a sm-geon, for the same 450 363 Article III. — Indemnity. Surety against principal, on a promise to indemnify him against lia- bility as surety : 451 363 Sub-tenant against his immediate lessor 452 364 By retiring partner, on the promise of the remaining partner to in- demnify him against damage - 453 365 The same, against sureties in partner's bond to indemnify against liability 454 366 Upon defendant's promise to indemnify plaintiff, if he would defend an action brought against him for money which the defendant claimed 455 368 CONTENTS. xxi Aeticlb IV> — Promise of Marriage. No. OF Form. p-\ge For refusal 456 369 Marriage with another 457 370 Article V. — Sales of Personal Property. Against seller, for not delivering 458 371 Allegation of part-payment, where there was no memorandum of the contract ' 459 373 Against seller of stock, for not delivering 460 373 Against buyer, for refusing to receive and pay for goods 461 374 The same, the contract having been made by broker 463 375 Against the same, for not delivering note for goods bought 4-63 375 For deficiency after resale by auction 464 376 For breach of contract to redeliv£r goods, or pay for them in a reason- able time 465 877 For breach of promise by purchaser of good- will, not to carry on rival trade 466 377 AnTiCLE VI. — Sales of Peal Property. Puichaser against vendor 467 378 The same, both for damages for not fulfilling agreement to convey, and for redelivery of securities for purchase-money 4G8 379 Averment of defendant's rescission, as an excuse for plaintiff's non- performance 469 381 Against purchaser, for not fulfilling agreement to purchase 470 381 Against the same, for deficiency on resale 471 383 Averment of false representations by the defendant, which prevented the plaintiflFfrcm fulfilling 473 383 By vendor, against the executor of the purchaser 473 383 Article VII. — Warranties. On a warranty of the soundness of a horse 474 884 On a warranty of the genuineness of a note 475 386 On a warrantv of a note which proved to be usurious by the law of another State 476 886 On a warranty of the amount due on a judgment assigned 477 393 On a warranty of title of chattels sold 478 394 Section XV. — Complaints in Actions against Agents, Bailees, &c.,for Unliquidated Damages. I. Agents. For not using diligence to sell goods 479 397 For carelessly selling to an insolvent 480 397 For selling for a worthless bill 481 397 For breach of instructions as to sale 483 398 Against an auctioneer, for selling below the seller's limit 483 899 Against the same, for selling on credit 484 399 Against an auctioneer or agent, for not accounting 485 399 For not properly stowing a pargo, whereby plaintiff's freight was diminished 486 400 Against a bank, for neglecting to present a note lodged with it for collection • 487 400 The same, for not giving due notice of non-payment 488 401 xxil CONTENTS. II. Bailees, in general. or fobw. paoe Against a receiptor 489 401 Against bailee, for not taking care of and returning goods . . . 490 402 Against a watchmaker, for not using due care and skill in re- pairing 491 402 The same, for not returning the watch 493 403 For negligence in loading a cargo 493 403 For immoderately driving a horse 494 404 For driving on a different journey from that agreed 495 404 Against the hirer of furniture, &o., for not taking care of the same 49C 404 III. Carriers. Against a common carrier, for loss of goods 497 405 For the same, for breach of the carrier's duty 498 40G Against common or private carrier, on a special contract, — for loss of goods .' 499 407 Against the same, — for failure to deliver at the time agreed, with special damage 500 408 Against carrier by water, — for not regarding notjce to keep dry 501 409 Averment of loss in unloading 502 410 Against common carrier, — for failure to deliver in a reasona^ ble time, with special damage 503 411 Against common carrier of passengers, by steamboat, — for in- juries to the person 504 412 The same, against a railroad company 505 413 The same, against the proprietor of a stage-coach 506 414 For loss of baggage 507 415 IV. Innkeepers. For loss of trunk, or contents 508 415 Against proprietor of bathing-house, for loss of pocket-book . . 509 4115 V. Pledgees. For loss of pledge 510 417 For injury to pledge 511 418 VI. Warehousemen. .For loss of goods 513 418 For injury to goods 513 419 For refusal to deliver 514 419 For not forwarding goods according to agreement 515 430 Section XVI. — Complaints in Actions against Sheriffs. For neglecting to return execution 516 431 For neglecting to levy 517 423 For neglecting to pay over moneys collected on execution 518 433 For a false return 519 434 For an escape. Common form 520 425 For an escape from custody upon an order of arrest 531 436 For escape from execution, or attachment for non-payment of costs ; seeking to recover the amount of the debt, &c., as in an action of debt, under the statute 533 427 Upon sheriff's liability as bail, under the Code of Procedure 523 428 Section XVII. — Complaints in Actions for Deceit. For fraudulently obtaining goods on credit 524 43] For fraudulently obtaining credit for another person 535 431 For fraudulently selling a tract of land for more than it was 526 433 ■ For.fraudulently misrepresenting value of good-will of business sold. 537 433 Against seller of chattels, for fraudulently representing them to be his property 528 434 CONTENTS. xxiii N'o. or i'OllM. TAGB The same, for fraudulently delivering smaller quantity than agreed for , 539 435 For fraudulently misrepresenting value of stock in a corporation, agreed to be taken in payment for services 530 435 Against the directors of an insurance company, to hold them person- ally liable on a policy, on the ground of their false representations of the amount of capital, which induced plaintiff to insure 531 436 Section' XVIII. — Complaints in Actions for Negligence. For keeping a mischievous dog, by which plaintiff was bitten 582 443 For keeping a dog accustomed to bite sheep and other animals 533 444 For keeping open a dangerous hatchway, through which plaintiff fell 534 446 Against a municipal corporation for neglect of an excavation in the streets 5^5 446 Against a person who had contracted to lay down gas-pipes in a . street, for leaving the street in an insecure state, whereby plain- tiff's horse was injured 536 447 For laying rubbish in the street, whereby the plaintiff was thrown out of his carriage 537 447 For flowing water from roof on plaintiff's premises 538 448 For carelessly kindling a fire on defendant's land, whereby plaintiff's property was burned '. 539 448 For undermining plaintiffs land -. 540 449 The same, where plaintiff is the reversioner 541 449 The same, where the plaintiff's buildings were undermined 543 449 For negligence of mill-owners, whereby plaintiff's land was over- flowed 543 450 Against the city of New York, to recover damages to fruit-trees, done by negligence of public servants 544 451 Against owner of vehicle negligently driven by servant against plain- tiff's vehicle, — showing damage to person and property 545 453 Against railroad company, for coUisiou with plaintiff's vehicle at a crossing 546 453 Against the same, for killing cattle 547 454 By a servant of railroad company, injured by defective machinery. . . 548 454 yEOTioN XIX. — Complaints in Actions for Injuries Respecting Personal Property. For conversion (Trover) 549 457 The same, by assignee after conversion 550 458 The same, by an administrator 551 459 By seller against fraudulent buyer of goods ;— for damages for the conversion 553 459 For conversion of a promissory note 553 459 For conversion of a bond ; by assignee after conversion 554 461 For unlawfully taking and carrying away plaintiff's goods (Tres- pass) f 555 463 The same, the plaintiff having regained possession before suit brought 556 4C2 For seizing a vessel 557 463 By mortgagee of chattels, against sheriff, for selling them on execu- tion against a third person 558 463 For malicious injury 559 465 The same, claiming increased damages under the statute 560 46.1 Against city or county for damages done by mob or riot 561 466 For chasing plaintiff's cattle » 563 467 For shooting plaintiff's dog 563 467 For goods received contrary to statute , 564 46 1 XXIV CONTENTS. Section XX. — Complaints in Actions for Injuries Respecting Real Property. No I. Trespasses. or t'oun. vun Trespass to land 565 469 The same. Another form 566 4&9 The same, for cutting and converting timber 567 470 The same, for removing fence 568 470 The same, vehere the new fence was not put on the line 569 470 For entering plaintiff's house, and injuring it and his goods . 570 471 For treble damages for injuring trees 571 471 For treble damages for forcible entry or detainer 572 473 II. Nuisances. For diverting water from plaintiff's mill- 573 473 For erecting a dam below, causing backwater 574 473 Against erector of a dam which is a nuisance, — seeking its abatement, and damages 575 474 The same, where the land has been transferred 576 475 Special damage to plaintiff's land 577 475 Against the erector of a slaughter-house which is a nuisance, — seeking damages 578 475 The same, against a continuer 579 476 For an injunction against nuisance, and for damages 580 476 For obstructing a" private way 581 476 III. Waste. By lessor, for damages for waste 583 477 The same, by devisee 583 478 The same, by heirs against doweress and her husband 584 478 By purchaser at sheriff's sale, for waste committed before con- veyance ._ 585 479 The same, by redemptioner 586 479 For forfeiture and eviction, on account of waste 587 480 Lessor against lessee, for injunction and damages 588 480 Seotion XXI. — Complaints in Actions for Injuries Respecting the Person. I. ASSAUI.T AND BATTERY, AND FALSE IMPEISONMENT. For assault and battery , 589 483 For the same, short form .' 590 484 For the same, committed by married woman 591 484 ^For assault and battery, and false imprisonment 592 484 The same, a fuller form 593 484 For false imprisonment 594 ' 484 II. Malicious prosecution On a criminal charge 595 485 The same, for obtaining an indictment, on which a nolle prosequi was afterwards entered 596 486 The same, for arrest in a civil action 597 488 III Libel. General form, where the words are libellous on their face. . . . 598 489 The same, for libel relating to business or profession 599 491 The same, by merchants, partners , 600 491 The same, where the libel was published in defendant's news- paper 601 493 Where the words are not libellous on their face ; charge of crime .- G03 493 The same ; charge of dishonesty, &c., in business 608 493 For libel by signs 604 498 CONTENTS. XXV rV. SlANDKK. of Foem. Paob Where the words are actionable in themselvea COS 499 For slander respecting plaintiff's trade, with special dam- age 606 501 For slander of title 607 503 V. Other violations op personal rights. For enticing away plaintiff's wife 608 504 For criminal conversation with plaintiff's wife 609 504 For seduction 610 505 For seduction of plaintiff's daughter or servant 611 505 Against the oflBcers of an election, for refusing plaintiff 's vote 612 506 Sbotion XXII. — Complaints in Aetions for the Recovery of the Possession of Specific Personal Property {Replevin). For goods wrongfully taken from plaintiff's possession ; — against the wrongdoer 613 508 For goods wrongfully taken from possession of plaintiff's lessee or bailee ; — against the wrongdoer 614 510 For goods wrongfully taken from possession of plaintiff's assignor ; — against the wrongdoer 615 51 1 Wrongful detention of goods 616 511 Against one having derived possession innocently 617 , 511 By seller against a fraudulent buyer of goods 618 512 Against a fraudulent buyer and his transferee 619 512 Section XXIII. — Complaints in Actions to recover Possession of Real Pfiup- erty {Ejectment). General form 620 514 Where the plaintiff was once in possession 621 515 By owner of undivided interest 622 517 By widow, for dower .' 028 517 The same, another form 024 517 By widow and heirs G25 518 Another form, setting forth plaintiff's title by deed 626 518 Setting forth title by devise 637 519 Setting forth title by descent 628 519 Section XXIV. — Complaints in Aetions Given iy Statute. ' I. Mechanics' lien. By contractor, for building materials 629 523 By sub-contractor, against owner and contractor, for labor . . . 630 534 Allegation of fraudulent lien 631 525 II. iNDrvllDUAL liability OF COKPORATORS. Against stockholder 632 526 Against trustees, for neglect to file report 633 529 Against the trustees of a dissolved corporation 634 530 Averment of indebtedness beyond capital 635 531 Averment where debt is a j udgment for costs 636 531 Against director of insurance company, on the ground of un- lawful dividends and transfers of assets 637 532 ill Bl CREDITOR OF DECEASED PERSON. Against next of kin 638 533 Against legatee 639 533 Against heir 640 534 Against devisees 641 536 Ac&,inst heir or devisee, where he has aliened the land 643 530 XX vi CONTENTS. No. OF Form, nam IV. By PBRSOU^Ui KEPRESENTATrVB OF DECEASED PEESON, FOB WHONG OH NEGLIGENCE CAUSING DEATH. Against railroad company 643 536 Against owner of warehouse, the walls of which fell 644 538 V. For PENALTIES. General form 645 589 For selling liquors without a license ; alleging both sales in small quantity, and sales to drink on the premises 646 540 For selling liquors on Sunday or election day 647 541 By wife or husband against dealer in intoxicating liquors, for illegally selling to plaintiffs husband or wife 648 541 Aga,inst a witness, for disobeying subpoena 049 542 For violation of ordinance of Board of Supervisors 650 543 ISeotion XXV. — Complaints in Actions for Injunctions ; and Interpleader. To restrain infringement of trade-mark ; and for damages 651 546 The same, in case of a periodical publication 652 548 By purchaser of physician's good-will, to enjoin his continuing the practice 653 549 To enjoin late partner from continuing business after dissolution . . . 654 550 For inj unction and damages upon breach of convenant by purchaser of a secret process of manufacture, not to disclose the same 655 551 By the People of the State and individual property owners ; — to re- strain municipal corporation from illegal act 656 558 To enjoin a municipal corporation from, giving a deed of lands sold for non-payment of an illegal assessment for local improve- ments , 657 564 To restrain negotiation of bill or note 658 566 Against maker and indorser of note ; — to reach collateral securities held by indorser 659 566 Interpleader 660 567 Section XXVI. — Complaints in Creditors' Suits. Commencement of complaint by plaintiff suing also for others 661 569 Complaint upon a justice's judgment 662 570 Against debtor, to reach demands due him from third persons 663 571 To set aside an assignment which is void on its face 664 574 Against the judgmenl^debtor, his assignee, and a pretended creditor named in the assignment ; — to set aside a general assignment, for fraud extrinsic to the instrument 665 575 Against debtors who transferred their assets to a third person for his note, and assigned the note for benefit of creditors ; — seek- ing to set aside the transaction as fraudulent, and for a re- ceiver 666 577 Against debtor and his tnnstee, to reach the trust-fund or its income. 667 579 By an assignee of a judgment, against the judgment-debtor and his mortgagee of personal property, and an assignee to whom, by a fraudulent agreement between them, the debtor's property, including the mortgaged property, had been transferred 668 580 Against judgment-debtor, and one to whom he fraudulently confessed judgment ; — to set aside the judgment and a sale thereunder 669 583 Section XXVII. — Complaints in Actions to Relieve against Fraud or Mis- take. To annul a contract, for fraud 670 ,^35 To reform a conveyance by correcting mistake in boundary ' 671 586 CONTENTS. xxvii No. , OF Form, pacb To remove a mortgage wliich is a doud upon title 673 587 For rescission of a contract and repayment of advances, on the ground of mistake 673 587 To correct an account stated 674 588 Section XXVIII. — Complaints in Actions for Specific Performance^ or to enforce Vendor^s Lien. I Specific pbbfoemancb. Vendor against purchaser .- 675 590 Purchaser against vendor ; — claiming interest on purchase- money wliich has lain idle, and deduction for deficiency and for outstanding incumbrance 676 591 On an exchange, the parties having taken possession 677 594 By creditor, for performance of agreement to give a chattel- mortgage 678 695 n. Vendor's lien. By vendor against purchaser, and his grantee and judgment- creditors, — to enforce lien for purchase-money 679 595 Section XXIX. — Complaints in Actions for Foreclosure. Mortgagee against mortgagor and junior incumhrancers ; — to foreclose upon default in interest clause, adding claim for insurance pre; mium paid by mortgagee, and for outstanding judgment 680 597 Assignee of mortgagee, against mortgagor, — mortgagee who on as- signing guaranteed payment, — grantee of equity of redemption, who assumed the mortgage, — and junior incumbrancers 681 600 Allegation of inadequacy of secmity, and demand for receiver of rents and profits , 683 601 Mortgagee in possession, against parties entitled to redeem ; — seeking an accounting and payment, or strict foreclosm'e 683 601 Short form, on a note and mortgage 684 603 Section XXX. — Complaints in Actions to Redeem Mortgaged Premises. By mortgagor against mortgagee 685 604 By lessee 686 605 Section XXXI. — ComplainU in Actions for Partition ; for Admeasurement of Bower ; and to compel Determination of Claims to Real Property. For partition. General form 687 606 Tlie same, setting forth sources of title 688 608 E'or admeasurement of dower 689 609 To compel the determination of claims to real property 690 610 Skotion XXXn.— Complaints in Actions for Dissolution of Partnerships and Corporations. To dissolve a partnership 691 611 The same ; on account of defendant's misappropriation of funds 693 613 By administrator of deceased partner, against the survivor 693 614 By a creditor, to dissolve a corporation 694 616 The same, ftgainst an insolvent banking association ._. 695 617 By the attorney-general, to dissolve a corporation for exercising a franchise not conferred by law 696 618 XXVUl CONTENTS. Seution XXXIII. — Complaints in Actions for Usurping Office. No. ov Form. piGn For an elective oflace 697 C19 For an office not elective 698 620 Section XXXIV. — Complaints in Actions for Divorce. For divorce, on the ground of adultery 699 6S1 For limited divorce, on the groimd of cruel and inhuman treatment. 700 624 Allegation of wilf^il absence 701 625 Allegation of drunkenness 703 626 Allegation of imprisonment 703 626 For divorce on account of nonage 704 626 On the ground of lunacy 705 637 On the ground of fraud by husband 706 627 The same, by wife 707 628 On the ground of physical incapacity 708 038 ABBOTTS' FOMS OF PRACTICE AND PLEADING. BOOK I. ACTIONS. CHAPTER I. COMMON CAPTIONS AND CONCLUSIONS. I [Oeetain captions and conclusions of papers, of constant occurrence, but which are generally familiar to practitioners, and easily remembered by the clerk, we give here, so that such matters may occupy less space in the following pages. The words [Title of the eauie\ or \Title of the mat- ter\, [ Venue], [At a special term, &c.% occurring at the head of any form in subsequent chapters, indicate jthat the paper may properly be entitled accordingly. All papers must be fairly and legibly written, and indorsed with the title of the cause. All papers exceeding two hundred words in length should be folioed, which is done by underscoring the first word, and every hundredth word thereafter, and numbering them by figures opposite in the margin, (a) In original papers, such as affidavits, petitions, and orders, all erasures or interlineations ought to be noted at the end, before the subscriptions.] 1. Caption of a preliminary petition to the court p. 2 3. Caption of a preliminary petition to a judge 2 3. Caption of a paper in a proceeding pending, not an action 2 4. Caption of a paper other than an order of court, in an action 8 5. Caption of an order of court, in an action 8 6. Commencement and end of affidavit 4 7. Jurat, where the deponent is a lunatic 6 8. Jurat, where the deponent is blind, or illiterate 6 9. Jurat, where the deponent is a foreigner C 10. Authentication of an affidavit taken without the State 7 11. Verification of petition 8 (a) Rule 20. 1 ABBOTTS' FORMS. Captions of Petitions. 1. Caption of a Preliminary Petition to the Court. (J) To the Supreme Court of the State of New York [or other court, giving itsfuIZ official designation']. . The petition of , of the city of , shows. 2. Caption of a Preliminary Petition to a Judge. To Hon. James Kent, one of the justices of the Supreme Court of the State of New York \or other court or magistrate, as above]. The petition of [cfec, as above]. 3. Caption of a Paper in a Proceeding Pending, Not an Action, (c) Supreme Court, county of ' In the matter of the application of A. B., an infant \or other descriptiori]. The petition of [&c., or other introduction appropriate to the character of the paper 7] (b) As to the cases in wMch a paper ■which is relied on in support. of the should be without title, see note f, jurisdiction of the court of the subject. infra. matter, or to give notice to the adverse (c) A paper which is merely a con- party of the court in which he is im- "tinuance of proceedings pending may pleaded. be more briefly entitled than one COMMON CAPTIONS AND CONCLUSIONS, Captions of Orders. 4. Caption of a Paper other than an Order of Court, in an Action. \_Name of court and county.] [Names of the plaintiffs^] {d) Plaintiffs, against l^ames of the defendants,] Defendants. 5. Caption of an Order of Court, in an Action, {e) At a special [or, general] terra of the Superior Court of the city of New York, held at the City Hall of said city, on the 8th day ot May, 1858. Present — Hon. John Duee, Justice. [JVames of plaintiffs,] against [Names of defendants ] («?) In the summons and in the com- ■>laint, and in other documents in which the names of all parties are material, such as notice of pendency of action, judgment, &c., they should aU be enu- merated in the title of the cause. In papers in the common intermediate proceedings in the cause, it is enough to say A. B. and others, against C. D. and others, naming, however, enough of each side to identify the cause and distinguish it from any other in which the same parties may be <^ncerned. White V. Hess, 8 Paige, 544. If there are two suits in which the parties are identical, the papers should be dis- tinguished by adding in the blank space at the right hand of the title, No. I., No. II., respectively; and it will be found very important for the convenience of the practitioner to make the same mark distinctly, under the title, upon the indorsement of each paper. (e) The title of an order made at chambers is to be as form No. 4 ; and the date should be added at the foot of the order, where also the judge will subscribe it with a direction to enter it, if it be an order which should be entered. The error of obtaining, a chamber order at special term, and en- titling it accordingly, does not afl'ect the validity of the order, if the judge ABBOTTS' FOKMS. AffldaTitB. 6. Commencement and End of Affidavit. [^Title, i&c, as above.] {f) [City and] county of , ss. {g) John Doe, of , [and, if there are two deponents, Rich- ard E,oe(A) of , severally] (^) being duly sworn, saya [each for himself] [j) that he is an agent of the plaintiffs [w other description of the deponent.] (Jc) [Statement of facts.] (l) John Doe, {m) KiCHARD Roe, his + mark, {n) Sworn [or, affii'med] before me, (o) this day of 186 ,{p) John Stiles, Com'r of Deeds, {q) Bigned it. Matter of Knickerbocker Bank, 19 Bari., 603 ; Caldwell's Case, 13 Aibotts' Pr., 405 ; S. C, 35 Barb., 444. In the first judicial district also, — where motions except for a new trial on the merits may be made out of court, — the fact that an order which elsewhere must be made by the court, is made as a chamber order, does not invalidate it. Disbrow v. Folger, 5 Aibotts' Pr., 53. In the case of an order by the court, unless it is entered in the minutes at the time the decision is made, the judge subscribes a, direction to the clerk to enter. An order made upon an application not in an action, varies from Form 5 in having the words, " In the matter of the application of A. B., &c.," in the place of the names of the parties. (/) An affidavit taken when there is no proceeding pending must not be entitled, — e. g., an affidavit on which to move for a mandamus. Haight i). Turner, 3 Johns., 371 ; People ■». "Tioga C. P., 1 We-nd., 391 ; People b. Dike^ man, 7 How. Pr., 134. Compare Whit- ney «. Warner, 3 Gow., 499 ; Nichols !). Cowles, 3 Id., 345 ; Folger v. Hoog- land, 5 Johns., 335 ; Matter of Bronson, 13 Id., 460. So of an affidavit before actual commencement of replevin. Milliken «. Selye, 3 Den., 54 ; Stacy «. Farnham, 3 How. Pr., 36. Under the Code it has been held that a superfluous title in an affidavit may be disregarded as not affecting the ' substantial rights of the party. Pindar V. Black, 4 Id., 95. (g) The omission of the venue from an affidavit is deemed fatal. Lane «. Morse, 6 How. Pr., 394 ; Cook «. Staats, 18 Barb., 407. But the contrary was held in Chancery. Parker «. Baker, 8 Paige, 43S ; Barnard v. Darling, 1 Barb. Oh., 2:8. (h) The names of all the deponents should be mentioned. Anonymous, 3 Ghit. B., 19 ; S. C, 18 Mig. Com. L. S., 385. (i) It has been held that an affidavit made by several should show that the deponents were severally sworn. Par- doe «. Territt, 5 Jf. & G., 391 ; S. C, 44 Shig. Oom. L. B., 159. (J) 'That this is the proper form where several depose, see Kincaid v. Kipp, 1 Bwr, 693 ; S. C, 11 N. T. Leg. Obs., 313. (A) Where the description or resi- dence of the deponent is material to COMMON CAPTIONS AND CONCLUSIONS. Conclusion of Affidavits. the affidavit, it is not enough to state it as a mere addition to Ms name, but it should be alleged directly as above. Exp. Bank of Monroe, 7 HiU, 177 ; Cunningham ®. Goelet, 4 Den., 71 ; Staples ». Fairchild, 3 N. T. (3 Comat.), 41 ; Payne v. Young, 8 JV. T. (4 Seld.), 158. Compare People ■». Ransom, 3 iV". Y. (2 Gomst), 490. But it is not usually necessary for a party or attorney on the record to allege that he is such. (f) Pacts, and not inference and argu- ment, are to be alleged ; but belief is often material. Whether an allega- tion of a material fact, not positively made, but on information and belief, is sufficient, depends on the nature of the case. Particular instances -wiil be found noticed in the following pages, as they arise. (m) An affidavit should be subscribed by the deponent. This vras the prac- tice in Chancery. 1 Newl. Ch. Pr., 165 ; Hathway v. Scott, 11 Paige, 178. And of late years, before as well as since the Code was enacted, this has been the practice in all the courts. The earlier cases of Haff «. Spicer, 3 Cai., 190 ; S. C, Col. & C. Cos., 495 ; Jack- son ®. Virgil, 3 Johns., 540, must be re- garded as overruled. But where an affidavit is required upon an apphcar tion to a magistrate, a subscription by the deponent is not necessary if the affidavit is taken down in writing by the magistrate to whom the applica^ tion is made, and the oath adminis- tered by him. Millius v. Shafer, 3 Den.. 60. See, also, Shelton v. Berry, 19 Tex.. 154. In the case of an affidavit made for the purposes of a motion, the omission of the subscription from the copy served may be disregarded, for on the motion the opposite party will have opportunity to see the original. Gra^ ham V. McCoun, 5 Sow. Pr., 353; Barker v. Cook, 16 Abbotts' Pr., 84. (n) The j utat should be special (Form 8)wherethedeponentisamarksman. 1 Tidd'sPr., 495 ; 3 Moult. Ch. Pr., 551. The usual jurat is sufficient where the deponent is of peculiar religious belief, so that the common form of oath is not used. Fryatt v. Lindo, 3 Edw., 239. Although some stress was laid in this case, which was a peculiar one, on the force of the word " duly" in the jurat, which is not commonly inserted, yet in an ordinary case a certificate that deponent was sworn, certainly imports that the ceremony of the oath was a valid and not a void one. (o) The omission of the words " be- fore me" in the jurat was held a fatal defect in Regina v. Bloxham, Q. B. S,., 528 ; S. C, 51 Eng. Com. L. B., 526. (p) The jurat should state the day on which it was sworn. Doe v. Roe, 1 Chit. B., 228 ; S. C, 18 Eng. Com. L. B., 69. But the omission is not fatal, where it is shown, when the objection is raised, that it was sworn in ■ due season for its purpose. Schoolcraft t. Thompson 7 How. Pr., 446. The venue sufficiently shows the place where the affidavit was taken. Belden «. Devoe, 13 Wend., 323, 235, and note. Manufacturers & Mechan- ics' Bank i). Cowden, 3 HUl, 461 ; 1 Tidd's Pr., 496. And if it thereby ap- pears that the affidavit was taken at a place beyond that where the officer was authorized to act. it will not be re- ceived by the court. Davis v. Rich, 3 How. Pr., 86 ; Sandland v. Adams, Id., 127 ; Snyder v. Omstead, Id., IPl. (y) The jurat must be subscribed by the officer with his official addition. Ladow B. Groom, 1 Den., 429 ; Jackson V. Stiles, 3 Cai., 128 ; S. C, Col. & G. Cos., 468 ; though, the contrary was held, as to the addition, in Hunter v. Le Conte, 6 Cow., 738, ABBOTTS' FORMS. Jurats. 7. Jurat, where the Deponent is a Lunatic, (t*) worn before me, this day of 186 , I having first examined the deponent, a lunatic, as to the state of his mind, and he appearing to me to be now of sound mind, capa- ble of understanding, and actu- ally understanding, the nature and contents hereof. John Stilks, Com'r of Deeds. 8. Jurat, where the Deponent is Blind, (s) or Illiterate. (<) Sworn before me, this day of 186 , the same having been in my presence [or, by me] read to the depo- nent, he being blind [or, illiter- ate], and he appearing to me to . understand the same. [Signature as above."] 9. Jurat, where the Deponent is a Foreigner, {f) Sworn before me, this day of 186 , I having first sworn M. N., an interpreter, to interpret truly the same to the deponent, who is a foreign- er not understanding the lan- guage, and he having so in- terpreted the same to deponent. {Signature as above.'] (r) Matter of Christie, 5 Paige, 2i3i ; (a) Matter of Christie, 5 Paige, 243. Matter of Cross, 3 GJi. Sent, 3. (t) 1 Tidd's Pr., 495. COMMON CAPTIONS AND CONCLUSIONS. Foreign Affidavit. 10. Authentication of Affidavit taken Abroad, iv) State of Ohio, ) Warren connty, j On this nineteenth day of December, a. d. 1854, personally appeared at Lebanon, in said county oi{v) "Warren, before me, J. C. D., judge of the Probate Court within and for said county, the above-named petitioner, W. M., who being by me duly sworn, on oath deposes and says ; that the foregoing petition, signed by him, is true of his own knowledge, except as to the matters therein stated upon information and belief, and as to those matters he believes it to be true. [Signature.^ Sworn, subscribed, and taken be- fore me at Lebanon, on the 19th day of December, 1854. J. C. D., Probate Judge. The State of Ohio, ) Warren county, ) I, H. W., clerk of the Prob'ate Court within and for said county, do hereby certify that J. C. D., before whom the above affidavit was taken, is a member [being sole judge] of the Pro- bate Court [or other title'], which is a court of said State [or, of the United States], existing pursuant to the laws thereof, in and for said county [or other district], and that he is duly qualified and commissioned as such [and that said affidavit before him taken and acknowledged is in due form of law], and that the subscription to the same is his genuine signature. Witness my hand, and the seal of said court, at [l. s.] Lebanon, this 20th day of December, a. d. 1854. M. W., Clerk Prob. Ct. State of Ohio, ) , Warren county, ) I, J. C. D., judge of the Probate Court in and for said county, hereby certify, that M. W., whose certificate is attached (m) Regulated by 2 Bev. Stat., 896. the venue, but it is well to insert it in («) The place might be inferred from the body'of a certificate made abroad. ABBOTTS' FORMS. Verifications. above, is clerk of said court, duly commissioned and qualified as such, and that his certificate and attestation above is authen- tic, and in due form of law. Witness my hand at Lebanon, this December 20, A.i5. 1854. J. C. D., Probate Judge. The preceding form is supported by Kogers v. McLean, li ABotts' Pr., UO. 11 . Verification of Petition, (w) [ Yenue, and introduction, as in Form 6.] {x) . That he has read [or, heard read] the foregoing petition sub- scribed by him, and knows the contents thereof; and that the same is [or, where such papers are annexed, and that the same and the accounts and inventories hereunto annexed are] true of his own knowledge, except as to the matters therein stated on information and belief and as to those matters he believes it [or, them] to be true. [Signature^ [Jurat.'] (w) All petitions to the court should (a:) The verification, being under- be verified. Anonymous, Hopk., 103. written at the foot of the petition, Verifications of pleadings being sub- needs no new title of the cause or nro- ject to peculiar rules, are treated in ceeding. the chapter of PlbW-Diugs. DEMANDS, NOTICES, AND SECURITIES, BEFORE SUIT. Analysis of Chapter. CHAPTEE n. DEMANDS, (a) NOTICES, AND SECURITIES, BEFORE SUIT. 12. Notice to quit, where right of re-entry is reserved for non-payment of rent, in default of goods whereon to distrain p. 10 13. Notice to quit, where there is a tenancy at will or by sufferance 10 14. Affidavit to claim presented to executors or administrators 11 15. Offer to refer the same 13 16. Agreement to refer 13 17. Approval of the surrogate, to be indorsed 13 18. Order of reference thereon 13 19. Bond to executor, &c., before suing for a legacy, or distributive share ... 13 20. Acknowledgment and justification 15 31. Approval to be indorsed 16 23. Bond to be given sheriff before suing upon things in action, &c., taken on an attachment under the Revised Statutes 16 33. Proof of execution 17 34. Notice of justification 17 35. Justification 18 26. Undertaking to be given sheriff before suing on things in action taken by him on attacliment under the Code 18 37. Security for costs on the part of a foreign corporation plaintiff 19 38. Notice of filing thereof 30 29. Security for costs to be given before suing in officer's name, for statute penalty 20 30. Justification of the sureties 20 31. Notice of judgment before suing on undertaking given on appeal 31 (a) A demand made after the com- to have been received by the sheriff, mencement of the action, where de- Walters «. Sykes, 32 Wend., 656. And mand is necessary, is not sufficient to where this is done, a demand made support the action. after the actual delivery, but before the Under the Code of Procedure the time so fixed arrives, may perhaps be .service of t"he summons is deemed the good. Badger •». Finney, 15 Mass., 359. commencement of the action as to the Where a special deputy was appointed defendant on whom it is served, except to serve the writ, a demand made after- for the purposes of the Statute of Limi- wards, but before the delivery of the tations. Code of Pro., %n7. At com- writ to the special deputy, was held mon law the delivery of the writ to the sufficient. Boughton v. Bruce, 30 Wend.. sheriff was deemed the commencement 334. of the action. Pierce v. Van Dyke, 6 Hill, 613. But a delivery of process might Against the city of New York, de- be qualified by a written direction fix- mand before suit is required by statute ing a time at which it should be deemed in all cases. Laws 0/IS6O, 645, ch. 379. 10 ABBOTTS' FORMS. Notices to Quit. 12. Notice to Quit, where right of re-entry is reserved for Non- payment of Rent, in default of goods whereon to distrain, (i) To Y. Z. Take notice that I intend to re-enter on the land [describing it] demised by , to , and of a part [or, the •whole] of which you have possession, unless the arrears of rent now due thereon shall be paid within fifteen days after the service of this notice. [Signature.] [Date.] 13. Notice to Quit, where there is a Tenancy at Will or hy Sufferance, (c) To Y. Z. {d) Take notice that I hereby terminate your tenancy at will, or by sutferance, of [describing the lajid], and require you to re- move therefrom on or before the day of , 186 .{e) [Signature.] [Date.] A provision for the same purpose in tlie charter of Buffalo, that no action or pro- ceeding could be maintained for the col- lection of any demand or claim unless it had been audited, was held not to apply to actions for liquidated damages for a tort. Howell v. City of Buffalo, 15 N. T., 512. Compare, in the case of Brook- lyn, Hart V. City of Brooklyn, 36 Barb., 226. (6) This form is supported by Van Bensselaer v. Snyder, 9 Barb., 302 ; affirmed, 13 N. Y. (3 Kern.), 299. See the act of 1846, abolishing dis- tress for rent. Laws of 1846, 369, ch. 274, § 3 ; Mayor, &c,, of N. Y. «. Campbell, 18 Barb., 156; Keeler v. Davis, 5 Duer, 507. Under a lease reserving a right to re-enter in case of non-payment, if it appears on the face of the complaint that there was no sufficiency of goods whereon to distrain, the above notice to quit, required by the act of 1846, is not necessary. Rogers «. Lynds, 14 Wend., 172 ; Mayor, &c., of N. T. ■». Campbell, 18 Barb., 156. Though the common-law mode of re entry is not taken away by the act ol 1846, an entry pursuant to that act does not require the formalities, as to demand, of a common-law entry. The statute notice as above, is enough. Van Rensselaer i>. Snyder, 9 Barb., 302; affirmed, 13 N. Y. (3 Eern), 299 ; Van Rensselaer v. Smith, 27 Barb., 104. A landlord may bring ejectment for recovery of possession of the deniised premises when a half year's rent or more is in arrear, and no sufficient dis- tress can be found on the premises ; and the service of a declaration in such action of ejectment is a sufficient de- mand. 2 Bev. Stat., 506, § 30. See, also. Van Rensselaer v. BaU, 19 JT. Y., 100 ; affirming S. C, 27 Barb., 104. (c) See 1 Bev. Stat., 745, § 7. DEMANDS, NOTICES, AND SECURITIES, BEFORE SUIT. 11 Demands against Executors, &c. li. Affidavit t-0 Claim presented to Executors or Adminis- trators, {f) [ Yenue.l A. B., being duly sworn, says, that the foregoing claim againbt the estate of M. IST. deceased, is justly due and owing to this deponent [w, to the firm of A. B., C. D., and E. F. above named, of whom this deponent is one] ; that no payments have been made thereon [except, &c., if any], and that there are no [other] offsets against the same, to the knowledge or belief of this deponent. \_Signature.] {Jurat.] (d) The notice is to be addressed to the immediate lessor who pays the an- nual rent, without reference to his servant or suh-tenant who may be in possession. Jackson v. Baker, 10 Johns., 270. (e) The notice must fix a time for the defendant to quit. Wright «. Mosher, 16 How. Pr., 454. The time of one month given by the notice must have reference to the end of a month com- puted from the commencement of the tenancy. Thus, where the tenancy from month to month commenced on the first day of the month, a notice to quit, if intended for May, shoxild be served on or before the first of April. Anderson v. Prindle, 23 Wend , 616. (/) A claim against the estate of a decedent should be presented to the representative with an ofler to refer it, if disputed, before bringing an action. If the plaintifi' would entitle himself to recover any costs in such action. 3 Bev. Stat., 90, § 41. This provision, however, we consider is not applicable to the case of an action which was originally commenced against the de- ceased, and which upon his death the plaintiffs merely continued against the representatives. Leman ■». Wood, 16 How. Pr., 385; Benedict v. Caffe, 3 Bu^r, 669 ; S. C, 13 N. T. Leg. Obs., 202 ; Marsh v. Benson, 11 Abbotts' Pr., 248. To the contrary, however, wag McCanu v. Bradley, 15 How. Pr., 7!). It is not settled whether it is applicable to demands of a purely equitable na- ture. Torks V. Peck, 9 Id.. 201 ; Fran- cisco i>. Fitch, 35 Barb., 130 ; Sands V. Craft, 10 Abbotts' Pr., 216. The statute is not applicable to claims in favor of the estate made by the ex- ecutor or administrator against others, except to allow them to be interposed strictly in the way of set-oflT. Akely v Akely, 17 How. Pr., 31. The demand may be presented before any notice to creditors has been given. Johnson i\ Corbett, 11 Paige, 265 ; Rus- sell 1). Lane, 1 Barb., 519. It may be presented by letter, or in any other way which deals fairly with the executor and the interests he rep- resents ; and the claimant need not pro- duce vouchers in support of tlie de- mandj nor an affidavit, unless requested. Gansevoort v. Nelson, 6 HiU, 389 ; Bus- sell V. Lane, 1 Barb., 519. But it is the better practice where the executor has advertised for claims to be presented, to produce the voucher and affidavit in the first instance, for it is usual to re- quire it. After a demand upon executors or administrators, and an offer to refer the claim, a reasonable time must be given them to consider it. Buckhout v- 12 ABBOTTS' FORMS. Reference of Claim against Executors, &c. 15. Offer to refer Claim against Executors, c&o. (g) To Y. Z., executor [or, administrator] of the estate of M. W. I hereby offer to refer the foregoing claim to one or three referees, to be approved by the surrogate, to hear and deter- mine the same, according to the statute. [Signature.] [Date.] 16. Agreement to refer Claim against Executors and Adminis- trators. "Whereas A. B., has presented a claim to Y. Z., executor of the will [or, administrator of the estate, or, administrator with the will annexed] of M. N., late of the city of New York, deceased, which claim he states as follows: [setting forth the cause of action as it would he stated in a complaint.'] (A) And whereas said executor [or, administrator] doubts the justness of such claim ; It is now agreed between A. B., and said executor [or, ad ministrator], to refer (^) the matter in controversy to K. S. ol , T. U. of , and V. W. of , as referees [or, to R. S. of , as sole referee], {]) to hear and determine the matter according to the statute. [Date.] [Signatv/res.] Hunt, 16 How. Pr., 407 ; Knapp v. Cur- place, upon the reference, of pleadings tiss, 6 HUl, 386. in an action, and must state the cause in case there has been an advertise- of action sufficiently for this purpose, ment for claims under the statute, and Woodin v. Bagley, 13 Wend., 452. It the representative rejects the claim, the is held, hovcever, that the defences Buit must be brought within six months -which the administrator relies on need after the demand. Flagg «. Ruden, 1 not be set up in the agreement to refer. Bradf., 192. Tracy v. Suidam, 80 Barb., 110. {g) It is not essential that the offer (i) An agreement "to submit," &c., to refer be in writing ; it is good by to the " award" of others, was held not parol. Lanning v. Swarts, 9 Eow. Pr., a reference under the statute. Akely 434. But it must be distinct and un- «. Akely, 17 How. Pr., 21. ambiguous. Stephenson v. Clark, 12 (j) The reference may be to three Id., 283. referees, or to one. Laws of 1859. (A) The agreement to refer takes the 569, ch. 261. DEMANDS, NOTICES, AND SECURITIES, BEFORE SUIT. 13 Reference of Claim against Executors, &c. 17. Approval of the Surrogate, to be indorsed. The surrogate of the county of hereby approves of the persons named as referees in the within agreement. [Date.] [Signature.'] Surrogate. 18. Order of Reference of Claim against Estate. Qi) [Title of the cause.] Upon the foregoing agreement between A. B. and Y. Z., ex- ecutor of the will [or, administrator of the estate, or, adminis- trator with the will annexed] of M. N., to refer the matter in controversy between them in respect to the estate of the said M. N., and upon the approval by the surrogate of the referee [or, referees] therein named. Oedered, that the matter in controversy set forth in that agreement be referred to [designating the referees approved hy the surrogate] to hear and determine the same. [Date.] [Signature.] Clerk of the county of 19. Bond to Executor, c&c, before Suing for a Legacy, or Dis- tributive Share. {I) Know all men by these pi-esents, that we, A. B., of the town of , in the county of , and State of New York, as principal, and C. D. and E. F., both of the town (k) This order should be entered in for they are to be conducted as such the office of the clerk of the Supreme 3 Bev. Stat., 89, § 37. Court in the county in which the party {I) The statute requires a bond to resides. 3 Bev. Stat., 88, § 36 ; as be presented, and a reasonable de- amended by Laws of 1859, 569, ch. mand made, before bringing suit ; and 361. If the agreement to refer is not if the demand is refused, the bond filed, and an order of reference entered, must be filed with the clerk of the the court does not become possessed of court in which the action is to be the cause. Comstock v. Olmstead, 6 brought, before the action can be Sow. Pr., 77. regularly commenced. 2 Bcv. Stat., The proceedings thereafter should 114, §§ 9, 10. If the claimant is a properly be entitled as if in an action, minor, the guardian, or guardian ad 14 ABBOTTS' FORMS. Security before Suit against Executor. of , in the county of , and State aforesaid, as sureties, are held and firmly bound unto Y. Z., executor of the will [or, administrator of the estate, or, administrator with the will annexed, of the estate] of M. IST., deceased, in tlie penal sum of [double the amount of the legacy or share'], to be paid to the said Y. Z., as such executor, or to his successors or assigns ; for which payment well and truly to be made, we bind our- selves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the day of , one thousand eight hundred and Whereas by the said will of the said M. N"., deceased, a legacy of dollars, is directed to be paid to the said A. B. [here state the time when the legacy is directed to he paid], And whei'eas, letters, testamentary upon said will [or, letters of administration with the will annexed] were granted by the surrogate of the county of , to the said Y. Z., on the day of , one thousand eight hundred and , being more than one year preceding this date: [Or if the claimant is one qf the next of Mn, insert instead of the preceding paragraph; — Whereas the said A. B. is one of the next of kin of the said M. N., and entitled to share in the distribution of the estate.] And whereas as said A. B. demands payment of the said legacy [or, payment of the said distributive share], and if such executor [or, administrator, or, administrator with the will an- nexed] should refuse to pay the legacy [or, said share], intends to bring an action in the court of , against said Y. Z., as such executor [or, administrator, or, administrator with the will annexed], to recover payment thereof. Now, THEKEFOEE, THE coNiiiTioN of this obligation is such, that if, in ease any debts owing by the testator [or, intestate] shall hereafter be recovered or duly made to appear, for the pay- ment of which, there shall be no assets, other than the said' legacy [or, share], the said A. B. shall refund the said legacy litem, must also file a bond before the an executor or administrator, to re- commencement of the action. Id., cover a specific legacy, tlie leave of the § 11. surrogate is necessary. 2 Mev. Stat., To maintain an action on the hand of 90, § 45. DEMANDS. NOTICES, AND SECURITIES, BEFORE SUIT. 15 Security to Executors, &c., before Suit. [or, share], in case the same sliall be paid to him by Y. Z., oi- be recovered by him in snch action, or shall refund such ratable part or proportion thereof, with the other legatees or representa- tives of the deceased, as may be necessary for the payment of the said debts, and the costs and charges incurred by a re- covery against such executor [or, administrator] in any suit there- for [and if the bond be given by a legatee, add, and also if, in case no sufficient assets shall remain after the payment of said legacy to pay any other legacy which may be due, the said A. B. shall refund such ratable part or proportion of the legacy which shall be paid to him by Y. Z. after such demand, or be recovered by him in such action , with the other legatees or other representatives of the deceased, as may be necessary for the payment of the proportional part of such other legacy] ; — then this obligation to be void ; otherwise to remain in full force and virtue. [Signatures and seals.] In presence of [Signature of witness.] 20. Acknowledgment and Justification, {m) [ Venue.] On this day of 18 , before me J. P., a commissioner of deeds, in and for said county, personally appeared A. B., C. D., and E. F., to me known to be the per sons described in, and who executed the foregoing bond [or, A. B., 0. D., and E. E., togetiier with G. H., residing in , who is to me personally known, who being duly sworn by me, said that he knew A. B., C. D., and E. F., to be the persons described in, and who executed the foregoing bond, which is to me satisfactory evidence thereof], and the said A. B., C. D., and E. F., severally personally acknowledged that they executed the same. And the said C. D., of , merchant, and E. F., of , builder, being duly severally sworn, say each foi himself that he is a householder, worth double the amount of (m) AH bonds given in legal pro- and any oflacer approving of sureties ceedings are required by Rule 6 to be must require justification, acknowledged or proved like deeds, 16 ABBOTTS' FORMS. Securities to Sheriffs, before Suit. the foregoing bond, exclusive of property exempt from execu- tion, and over and above all demands and liabilities. J. P., Com'r of Deeds. 21. Apjproval to le indorsed on the foregoing Bond. I hereby approve of the sufficiency of the sureties in the ■\vithin bond. [Signature ly a judge of the court.'] 22. Bond to he given Sheriff before Suing upon Things in Action, c&c, taken on an Attachment under the Bevised Statutes, {n) Know all men by these presents, that we, A. B, of , 0. D., of, , and E. F., of are held and firmly bound unto M. K., sheriff of the coun- ty of , in the sum of five hundred dollars, to be paid to the said M. IS"., his executors, administrators, or as- signs, for which payment, well and truly to be made, we jointly and severally bind ourselves, our heirs, executors, and adminis- trators, firmly by these presents. Sealed with our seals, this day of , in the year "Whereas, the said sheriff, under an attachment duly issued by , at the suit of A. B. against W. X., a foreign corporation [or, an absconding, concealed, or non-resident debtor], has seized certain things in action of such corporation [or, debtor], namely, two promissory notes [describing them, or otherwise stating what suit is necessary to gain possession of the property of the debtor, or to collect his assets.] And whereas said A. B. is about to commence an action thei'eon in his own name. , Now, THEREFORE, the Condition of this obligation is such, that if the said A. B. shall well and truly indemnify, and save harmless the said sheriff, M. N., and his deputies, and the per- sons acting under his or their authority, and each and every of (n) Laws 26. Undertaking to he given Sheriff before Suing on Things in Action taken hy him on Attachment under the Code, (q) "Whereas, M. N., the sheriff of the county of , by virtue of an attachment issued out of the Court of , against the property of W. X., in an action against him by A. B., and delivered to said M. IS"., as sheriff, for execution, has seized certain evidences of debt of said defendant, to wit : [describe them] ; and whereas, A. B. is about to bring an action [or, to cause an action to be brought under his direction] in the Court of , upon said evidences of debt. Now THEEEFORE, wc [the Said A. B. and] 0. D., of , printer, and E. F., of , merchant, do hereby, pursuant to the statute, undertake that A. B. [the plaintiff], will indem- nify the said sheriff from all damages, costs, and expenses on account thereof, not exceeding [a sum equal to two hundred and fifty dollars for each action to be brought^ [Signatures.] [Acknowledgment, or proof, and Justification, as in the pre- ceding forms.] (q) Code of Pro., % 2S8. Mr. Justice real party in interest. Soffm. Prov. Hoflinan suggests that the action may Hem., 453. be in the name of the plaintiff as the DEMANDS, NOTICES, AND SECURITIES, BEFORE SUIT. 19 Foreign Corporations. 27. Security for Costs on the Part of a Foreign Corporation Plaintiff, (f) Know all men by these presents, that we, A. B. and C. D. [designating their residence and additions'], are lield and firmly bound unto Y. Z., in the sura of two liundred and fifty dollars, («) to be paid to the said Y. Z., his executors, administrators, or assigns : For which payment, well and truly to be made, we jointly ftnd severally bind ourselves, our heirs, executors, and administrators, firmly by these presents. Sealed with our seals, and dated the day of , 186 . "Whereas, the A. Company, a foreign corporation created by the laws of , is about to commence an action in the court of , against Y. Z., to recover \_here hidicate hriefly the nature of the cause of action.] Thb coNDrrioN of this obligation is such, that if the said A. Company or their successors, shall, on demand, pay to the said Y. Z., his executors, administrators, or assigns, all such costs as may be awarded to the said Y. Z., in such action, then this obligation to be void, else to remain in full force. Sealed and delivered [Signatures and seals.] in presence of [Subscribing witnesses.] [Acknowledgment or proof . {t) See Forms 20 or 23.] (r) This is required by 3 Bev. Stat, («) The penalty is fixed at $350, in 457 8 1. analogy to section 20 of tlie same atat- The irregularity of omitting to file ute, and according to section 4 of the security for costs in an action by a for- statute relative to security for costs in p.ign corporation may be cured by filing other cases. 3 Bev. Stat, 620. it after a motion to dismiss the proceed- (t) It is not unusual to add a justifi- ino-s. Bank of Micliigan v. Jessup, 19 cation, but this is not essential, for the Wend, 1. 'It is cured also by recover- defendants may except, and require ing judgment against the defendant, a new justification notwithstanding. Merchants' Bank v. Mills, 3 E. B. Washbume v. Langley, IC AWoM Smith, 210 ; and see Hartford Quarry Pr., 3f)9. Co. V. Pendleton, 4 Abbotts' Pr., 460. 20 ABBOTTS' FORMS. Security for Costs. 28. Notice of filing of Bond. \ Title of cause.] To , defendant's [attorney]. Sir. Please to take notice, that security for costs, of which the foregoing [or, within] is a copy, lias been duly executed, and filed in this cause, with the clerk of this court at [Date.] [Signature.] 29. Security for Costs to he given hefore Suing in Officer'' s Name for Statute Penalty, (u) "Whereas, A. B. is about to bring an action against T. Z.. in the name of [designating the officers] under and in pursuance of section , of the act entitled , passed on the day of [or, of section , of article , of title , of chapter , of pai't , of the Revised Statutes, entitled ]. Now THEREFOKE, A. B. aforesaid, an.l C D. and E. F. [desig- nating their residence and additions], hereby covenant and agree to and with [such office?], that A. B., shall pay all costs on the part of the defendant, as well as on- the part of the plain- tiffs, if said A. B., shall fail to recover judgment; and that [naming the persons executing the obligation] shall and will in- viemnif}' and save harmless the said plaintiffs of and from all such costs as aforesaid. [Signature and seals.] [Date.] [Aclcnowledgment or proof . See Forms 20 and 23.] 80. Justification of the Sureties. 0. D. and E. F., two of the persons named in, and who exe- cuted the foregoing obligation, being duly and severallv sworn, (u) This form, wMcli must be varied obligors, but one of tbem must be thp according to tbe statute wiich requires person wlio prosecutes, and that at such security, is supported by Tliayer least two of the obligors must justify E. Lewis, 4 Ben., 269 ; and Walley ■». in the sum of $500 each. Thi; bond Leonard, 2 How. Pr., 282 ; in the for- should, in general, be filed ; and notice mer of whjch cases it was held that it given, which may be as in Form 28. would be suflScient if there were two DEMANDS, NOTICES, AND SECURITIES, BEFORE SUIT. 21 Security for Costs. Notice of Judgment. each for himself, saj's that he is a resident of the town of , and a householder [or, freeholder], and Avorth more than dollars, over and above all debts, and ex- clusive of property exempt by law from execution. [Jurat.'] [Signatures.] 31. Notice of Judgment iefore Suing on Undertaking given on Appeal, {v) [Give usual notice to the adverse party of entry of order or judgment of affirmance, for which, see chapter o/" Appeals.] ^■B) In general, in an action on an no action lies upon any undertak undertaking in the usual form, wliich ing, given under that section of the does not in terms call for notice to the Code of Procedure on appeal in the sureties of aiBrmance, nor for demand Supreme Court, or New York Superior of payment, it is not necessary to aver Court, or Common Pleas, from a single or prove notice or demand. Heebner judge to the court at general term, V. Townsend, 8 AbioM Pr., 234. The until ten days after service of notice on plaintifls are not bound to exhaust the the adverse party of the entry of the remedy on the judgment before bring- order or judgment affirming the judg- ing an action on an undertaking, given ment appealed from, before its recovery, for its payment if it This applies to vmdertakings given should be recovered. Nickerson v. before the statute ; but it does not ap- Chatterton, 7 Col., 568. But by sec- ply to special security required by the tion 348 of the Code of Procedure, as court. Rice «. Whitlock, 10 AWottif amended by the Laws of 1863, oh. 460, Pr., 335. 22 ABBOTTS' FORMS. Authority to bring Ejectment. CHAPTER III. ATTORNEY'S AUTHORITT. [It is proper, though not necessary, for an attorney to require written authority to commence an action, {a) The court will not in general inquire into his authority, although it be challenged by the defendant ; (b) but in the case of an action to recover lands, or ejectment, (c) and in all actions in justices' courts, he may be required to prove his authority.] 32. Request to commence ejectmeijt p. 22 33. Attorney's affidavit thereto 23 34. Notice of the same 33 35. Acknowledgment to be indorsed on authority to sue in justice's court. 23 32. Request to commence Ejectment, (d) I hereby request [o?-, if the suit has been already commenced, Jiereby recognize the authority of] C. D., of , as, my attorney, to bring an action in the courts of the State of New York, in my name, to recover possession of [here designate real property in question], with full power to prosecute the same. [Date.] [Signattcre.] (e) (a) Bogardus v. Livingston, 7 Abbotts' (d) The defendant may require the Pr., 428 ; Howard v. Howard, 11 Sow. production of the attorney's authority, Pr., 80 ; 2 Sev. Stat., 351, § 26. and stay proceedings meanwhile. 2B&)>. (6). The Ninety-nine Plaintiffs v. Van- Stat., JOS ; Howard «. Howard, 11 How. derbilt, 1 Abbotts' Pr., 143 ; RepubUc Pr., 80. The defendant's application of Mexico !!. Arrangois, 5 Duer,- 643 ; wiU be dismissed with costs if it ap- affirming S. C, 1 Abbotts' Pr., 437 ; pears that he was served vidth the at- Commissioners of Excise v. Purdy, 13 tomey's affidavit of his authority as Id., 434:. Compare State «. Tighlman, above. The form of the writing is not 6 Clarke (Iowa), 496. at aU material. (c) Leave to sue for the possession of («) A mere general agent for taking lands, in the name of the People, is to possession and managing land is not be obtained from the attorney-general, empowered by such agency to give the on giving security for costs. 1 Bev. attorney authority to sue. Howard v. Stat, 180, §§ 10. 11. Howard, 11 Eow. Pr., 80. ATTORNEY'S AUTHORITY. 23 Proof of. Acknowledgment of Power 33. Attorney's Affidavit thereto. \Title of cause.l [ Venue.] C- D., of , attorney-at-law, being duly sworn, says that he has written authority from A. B., the plaintiff in this action, to bring snch action, of which authority the above is a copy [or, which authority is contained in a letter from the plaintiff, an extract from which is hereto annexed] ; that the said writing was duly signed and delivered [or, sent by mail] to this deponent by the plaintiff [or, by M. N., an agent of the plaintiff, duly authorized thereto, as appears by a letter of the plaintiff to said M. N. hereto annexed.] [Signature.] [Jurat.] 34:. Notice of the Same. (/) [Title of the cause.] To Y. Z., the defendant above named. Sir : — Take notice that the within is a copy of the affidavit of the. plaintiff's attorney herein, showing his authority to bring this action. [Signature.] [Date.] 35. Acknowledgment to be Indorsed on Authority to sue in Justice's Court, {g) [ Venue.] On this day of , 18, , before me per sonally came A. B. [and C. D.], to me known to be the persons (/) It is well to serve such notice competent testimony, unless admitted and autliority voluntarily, where it is by the opposite party. 2 Rev. Stat, supposed that the defendant might 333, §§ 44, 45. It is held, however, that seek delay by moving for a production the omission to object at the trial to of it. " the authority of one appearing as at- (g) In a justice's court a party au- torney, is an admission of his authority thorized to appear by attorney may within the meaning of the statute. aiDpoint any person to act as such at- Ackerman v. Finch, 15 Wend., 653 ; torney ; but the authority of the at- and in Treadwell v. Bruder (3 E. J), tomey, which may be either written Smith, 596), it was held, that the ob- or verbal, must in all cases be proved, jection that the avithority of the tither by the attorney himself or other agent to appear was not shown, is no 24 ABBOTTS' FOEMS. Acknowledgment of Power. described in, and who executed tlie within [or, above, or, an nexed] power of attorney [or other written authority to suel, and acknowledged [each for himself] that he executed the same. [Signature of officer.] (A) ground for a nonsuit after the plain- tifF's case is proved ; for a production of tlie authority should be demanded at the time of tlie appearance. (7t) Any written authority to appear by attorney in a justice's court may be acknowledged before any judge of the County Courts, justice of the peace, or commissioner of deeds ; but the ofScer shall not take the same unless he shall know the person making it ; and the certificate of such acknowledgment shall state that the officer knows such person. Laws of 1831, 356; ch. 287. LEAVE OF COUKT TO SUE. 25 Analysis of Chapter. OHAPTEE IV. LEAVE OP COURT TO SUE. I. Leavb for actions by or against receivers or other trustees. 36. Petition by a receiver, or other trustee, for leave to sue p. 26 37. Order giving receiver leave to sue 27 88. Petition of committee of lunatic, &c., for leave to sue 28 39. Petition for leave to sue a receiver or other trustee 29 II. For actions by or against lunatics, &c. 40. Petition for leave to sue a lunatic, &c 30 41. Order for leave to sue a lunatic, &o 31 ni. For action in nature of quo warranto. 43. Application hy attorney-general for leave to sue to annul a charter 33 IV. To SUE IN FORMA PAUPERIS. 43. Petition for leave to prosecute as a poor person 33 44. Certificate of counsel 34 4.5. Order giving leave to prosecute as a poor person 34 46. Order denying leave to prosecute as a poor person 35 47. Order for reference of petition for leave to prosecute as a poor person 35 V. Leave for infant to bring partition suit. 48. Petition of infant or guardian 35 4D. Verification of foregoing petition 88 50. Consent of proposed guardian 39 51. Proof of signatures 39 53. Another form, hy acknowledgment 39 53 Order of reference. 89 54. Report of referee 40 55. Order granting leave, and appointing guardian 41 VI. Leave to sue on a bond given as condition of a favor granted BY THE COURT. 56. Affidavit of applicant 43 57. Order that the bond be delivered up to be sued 43 Vn. Leave to sub on bond of sheriff or other officer. 58. Application for leave to sue on sherrBrs bond for vsrrongful levy 44 59. The same in case of neglect to pay over money on execution. . . 45 60. Order granting leave to sue on official bond 46 Vm. Leave to sue on administration bond. 61. Application to the surrogaie 46 63. Order directing an administration bond to be prosecuted 47 IX. Leave to sue on a judgment. 63. AflSdavit of applicant 48 64 Notice of motion ■ ■ • ^^ 65. Order granting leave to sue on a judgment 50 26 ABBOTTS' FORMS. Leave for Receiver to sue. I. Leave for Actions bt or against Receivees oe othke Tkustkhs. 36. Petition hy a, Receiver, or other Trustee, for leave to sue. (a) \ Title of the action or other proceeding in which the petitioner was appointed.'] To' the Supreme Coui-t of the State of New J York \or other court whose officer he is]. The petition of A. B, respectfully shows : I. That on the ' day of 18 , at , upon application made by O. P., a judgment-creditor of M. N., in pro- ceedings supplementary to execution upon his judgment, the pe- titioner was, by an order duly made by Hon. , one of the justices of the court [or, county judge for the county of ], duly appointed receiver of the property of M.N. (b) II. \_State briefly the cause, or causes, of action, as they would he stated in a concise complaint.'] III. That the petitioner is informed and believes that there is due thereupon from said Y. Z. [the intended defendant], to the estate [or, fund] of which the petitioner is receiver, the sum of , [or other relief]. TV. That the petitioner has demanded payment of said Y. Z. [the intended defendant], but he refuses to pay the same. Or, if it is a case of special relief of a nature to require ds- mand, has requested the said Y. Z. to desist from such griev- ances [or, to deliver said property], but he refuses so to do. (a) By the former practice, one reason was, that the sanction of the court was why a receiver was required to obtain desirable in order to shield him from a leave before suing at law was, that he personal liability for costs, in case Ms must sue in the name of others, and suit was unsuccessful. This reason is the court would require him to indem- still operative. See Gode of Pro., § 317, nify such nominal plaintiffs. Green ». Phelps i>. Cole, 3 Code R., 157 ; Smith Winter, 1 Johns. Ch., 60. Under the D. Woodruff, 6 Abbotts' Pr., 65 ; Mur. Code of Procedure, § 111, and the ray v. Hendrickson, Id., 96. - But a Laws of 1832, 509, ch. 295 ; and Laws special application is necessa'ry ti 0/1845, 91, ch. 113, a receiver may sue charge him with the costs. Marsh «. in his own name i see, also, Laws of Hussey, 4 Bosw., 614. And he is some- 1858, 506, ch. 314) ; and even the real times required to give the defendant party in interest is not necessarily security for costs, liable for the costs. Wheeler D.Wright, (6) For an allegation suited to the 14 Abbotts' Pr., 353 ; McHarg i). Don- case of a receiver appointed pending Qelly, 27 Barb., 100. Another reason an action see Form No. 39, infra. LEAVE OF COURT TO SUE. 27 Actions by Eeceivers. 'V. That the petitioner, upon diligent inquiry, is informed and believes that said Y. Z. is solvent, and the demand is collectible from him by means of an action [or, believes that the said chat- tels are now in the possession of said T. Z., and may be recov- ered by proceedings of claim and delivery [replevin], or, other- wise show that an action would he successful]. Wherefore your petitioner asks leave to bring an action, as such receiver, in this court [or other appropriate tribunal] against said Y. Z., to recover said debt [or other relief]. \Date. 1 [Signature.] [ Verification.] 37. Order giving Receiver leave to sue. [Title of the cause or matter.] [At a special term, cfec.J On reading and filing the petition of A. B., the receiver in this suit [or, matter], asking for leave to bring an action for a debt amounting to , due from Y. Z., of , [and if the action is to he brought in the. name of a third per- son, (c) add, and of proof of service of a copy of said petition, and of notice of motion thereon upon said C. D., in wliose name the proposed action is to be brought; and the said C. D. not appearing to oppose] ; and this court deeming such petition to contain sufficient evidence to authorize such action ; — on motion ofQ. R., of counsel for the said receiver: Ordkeed, that the said A. 13., as such receiver, is hereby authorized and directed to commence and prosecute an action in one of the courts of record of the State of New York, and in such form as counsel may advise, against the said Y. Z., to recover the said debt of , [and if the action is to he brought in the name of a third person, and security for costs is required, add, and that such action be brought and prosecuted in the name of the said C. D. as plaintiff. But the said receiver is first to execute a bond, as such receiver, to the said C. D., therein binding the estate and effects committed to his trust as receiver, by way of indemnity to the said C. D., against the damages, costs, and charges which may, by possibility, accrue to the said 0. D. as (f) In such case it is proper to give of the application. This form is from tlie proposed nominal jplaintiff notice Eduards on Receiver s,l^Q. 2S ~ ABBOTTS' FORMS. Leave for Actions by Committee. nominal plaintifi", or to his estate or effects, by nonsuit, damages, motion, costs, or otherwise, in or on account of such action or the verdict therein. The said bond being first approved, in amount and form, by S. 0., Esquire, as referee, residing in the city of New York [or, by a justice of this court], and the said bond being also filed, but without any report being necessary from the said referee, before such action is commenced. And this court does not deem it necessary that any particular sum in the receiver's hands should be expressly set apart or paid into court merely to meet the possibility of damages, costs and charges falling on the nominal plaintiff in such action]. 38. Petition of Committee of Lunatio, (&c.,for Leave to sue. {d) To the Supreme Court [or, to the County Court of the county of ], of the State of .ISTew York. The petition of A. B. respectfully shows : I. That on the day of , 18 , at , upon proceedings duly instituted in 'this court [in and for the county of ], and by an inquisition then taken and re- turned, M. N. was found and adjudged to be an idiot [or, a lu- natic, or, a person of unsound mind, or, to be incapable of con- ducting his own affairs, in consequence of habitual drunkenness]. II. [Here state tlie cause of action on which the petitioner de- sires to sue, as it would he stated in a concise complaint.'] III. That the petitioner is informed and believes that there is now due thereupon from said Y. Z. [the intended defendant], to the said M. JST. [the lunatic], the sum of dollars. IV. That the petitioner has demanded payment of said Y. Z., but he refuses to pay the same. ■ Y. That the petitioner, upon diligent inquiry, is informed and believes that Y. Z. is solvent [or, that said mortgage is collectf- ble in whole or in part], and that the action is necessary to en- force the same, and protect the rights of said M. N. Wherefore your petitioner asks leave to bring an action as such committee [continue as in Form 36]. (d) As to wlien the action should be maker, 24 Wend., 85 ; Lane v Scher- in a lunatic's name, and not in that of merhorn, 1 HUl, 97 ; McKUlip v. Mo- his committee, see Petrie -o. Shoe- Killip, 8 Barb., 553. LEAVE OF COURT TO SUE. 29 Petition for Suit against Receiver. 39. Petition for Leave to sue a Receiver, or other Trustee. To the Supreme Court of the State of ]!^e\v York [or, other court whose officer the receiver is'\. The petition of A. B. shows : I. That on the day of ' , 18 , at , in an action then pending in the Court of , wherein M. N. was plaintiif and 0. P. was defendant, upon an apphca- tion made by M. N., Y. Z. was, by an order tlien duly made by said court [or, by Hon. , a judge of said court], ap- pointed receiver of [here designate the fund or estate']. II. [State hriefiy the cause of action so far as it concerns the receiver, as would be done in a concise complainf]. III. That said receiver now has the possession of said prop- erty [or, claims some interest in said mortgaged premises, or, otherwise show the necessity of joining him as a party].. IV. That the petitioner has demanded of him that he deliver the said property [or other redress, where a demand is proper], but he refuses to do so. Y. That your petitioner has fully and fairly stated the case to O. P., his counsel, who resides at , in the and that he has a good, substantial, and meritorious cause of action thereupon against said receiver [or, a good, substantial, and meritorious cause of action thereupon, and that said re- ceiver is a necessary or proper party-defendant to his action thereupon], as he is advised by his said counsel after such state- ment, and verily believes. Wherefore your petitioner asks that the said receiver may be ordered to pay the amount so due, with the costs of this ap- plication, or that the petitioner have leave to bring an action ao-ainst him to recover the same [or, if he is to he joined inci- dentally to relief sought against others, asks that he may have leave to join said receiver as defendant in an action to be brought by him against W. X., upon the foregoing facts] ; and for such other and further relief as may be just. [Date.] [Signature.] [ Yerification.] 30 ABBOTTS' FORMS. Petition of Creditor of Lunatic. II. Leave for Actions by or against Lunatics, etc. 40. Petition for Leave to sue a Lunatio, <&e. To the Supreme Court of the State of I^ew York. Xhe petition of A. B. shows: I. That on the day of 18 , upon pro- ceedings duly instituted in this court, in and for the county of , [or, instituted in tlie County Court of ], and by an inquisition then taken and returned, Y. Z. of , ■was found and adjudged to be an idiot [or, a lunatic, or, a per- son of unsound mind, or, to be incapable of conducting his own affairs in consequence of habitual drunkenness] ; and thereupon M. IST., of , was, by an order of said court duly made on the day of , 18 , at , ap- pointed the committee of said Y. Z. II. That on the day of j 18 , and, as the petitioner is informed and believes, before said Y. Z. became a lunatic, he became indebted to the petitioner [here state grounds of indebtedness, annexing and referring to a copy of the instru- ment, if any, on which it isfounded\ [Or, if the cltim is for a tort. — II. That on the day of 5 18 , the said Y. Z. assaulted and beat [here state the cause of action as in a cmicise complaint, sJiowing moreover that actual damage was sustained hy the petitioner}. [Or, if the demand is upon an executed contract, Wbade in ignorance of the lunacy of the defendant. — II. That on 1>he day of , 18 , the petitioner was employed by said Y. Z., and rendered services, and furnished materials in the building of a house for said Y. Z., upon his farm at , [or other consideration received hy the lunatic'] ; and that the petitionei', without any knowledge of the lunacy [or, idiocy] of Y. Z., and in good faith, rendered such services, and furnished snch materials, an account of which is hereto annexed ; and that Y. Z. is now justly indebted to the petitioner thereon in the sum of .] III. That the petitioner has presented this demand to said M. N., the committee of Y. Z., for payment out of the estate of Y. Z., but that said committee refuses to pay the same, IV. That the petitioner has fully and fairly stated the case LEAVE OF COURT TO SUE. 31 Action against Lunatic. in this' matter to O. P., his counsel, who resides at , in the ; and that he has a good, substantial, and meri- torious canse of action thereupon, as he is advised bj his said counsel, after such statement made as aforesaid, and verily be- lieves to be true. "Wherefore your petitioner asks that the said committee may be ordered to pay the amount (e) so due, with the costs of this application, or that the ;getitioner have leave to bring an action ao-ainst T. Z. to recover the same; and for such other and further relief as may be just. [C>r, where the lunatic is made a party, incidentally to relief sought chiefly against others. Wherefore, your petitioner asks that he may have leave to join the lunatic as a defendant in the action to be brought by the petitioner thereupon, and for such other and further relief as may be just.J [Signature.] [Date.] [ Veriflcation.] 41. Order f 01'' Leave to sue a Lunatic, (&e. In the Matter of the petition of A. B. At a special term of the Supreme Court, held in and for the county of , [or, at a term of the County Court of the county of , held] at the, &c., on, &c. Present, Hon. Justice \or, Judge]. On reading and filing the petition of A. B., dated on, &c., for an order that M. K, the committee of the person and estate of T. ZL, pay the demands therein set forth, or that the petitioner (e) It is generally the preferable ing an action to be brought. Williams coTirse to dispose of the petition by a v. Estate of Cameron, 26 Barb., 172 ; reference of the claim, without direct- Hall v. Taylor, 8 How. Pr., 438. 32 ABBOTTS' FORMS. Leave to Sue to Annul Charter. liave leave to briiipUcat{on.] That "W. X., one of the co-tenants of the petitioner [or, of said infant] assumes to control and manage Hie property and collect the rents, and that unhappy diiferenees have arisen between him, and 0. P., and the petitioner, in respect to his conduct of the same, and of his accounting for the proceeds, which ditferences are to the great prejudice of the rights of the petitioner [or, of said infant], and he has been unable to avoid or to reconcile the same with due regard to said j'ights. VIII. [ Where the hurdens of the property are a ground of the amplication.'] That said property consists of a lot of ground in the city of , which has recently been assessed by the Corporation of the city, in the sum of dollars, for beueiit arising from a local improvement in said city ; and that no damages have been awarded to him for the same [or, that the award of damages for the same is only dollars], and that said assessment for benefit, has not been paid ; and your petitioner [or, said infant] has not the means of paying his share thereof; and the land is so situated, and of such small area, that a part cannot be set off and sold to satisfy the charge. [Or, VTTT. That the taxes and assessments for the years and have not been paid ; and the taxes and assessments for the year , were paid by the co-tenants of the petitioner [or, .of said infant], who demand repayment of his share; and that the land is liable to be sold for the taxes and assessments still unpaid, and it is so situated, and of such small area, that a part cannot be set off and sold for payment of the charge.] IX. That the interests of your petitioner, as he is informed and believes [or, of said infant, as the petitioner is informed and believes], require a partition [or, a sale] of the premises. X. That W. X., one of the co-tenants above named, refuses to unite with the others in a sale of the premises [or, has left this State, and his place of residence is unknown to the peti- tioner, and cannot after diligent inquiry be ascertained; or, 38 ABBOTTS' FORMS. Petition for Leave to bring Partition. that all the other co-tenants above named are infants, under the geof 21 years]. XI. That the petitioner has applied to each of the other co- tenants above named [except TJ. V., who is an infant ; or, who has left' this State, and whose residence the petitioner can- not ascertain], to induce some of them to purchase the share oi your petitioner [or, of said infant], but they all decline to do so. (p) Wherefore your petitioner asks that the court authorize pro- ceedings to be instituted on his behalf [or, on behalf of such in- fant, or, would authorize the petitioner — or, said infant — to unite with C D., in instituting proceedings], (q) for the division and partition of said real estate, and for a sale thereof, in ease it appears that such partition cannot be made without great pre- judice to the owners ; (r) [and that , who is a com- petent and responsible person, may be appointed as the guar- dian, or next friend, of said infant, to conduct such proceedings on his behalf.] I3ig7iaiure.'] [Date.] [Signature of witness, if the petition is to he proved in- stead of aoTcnowledged.'] 49. Verification offoregoing Petition. [ Venue.] A. B. [the infant, or if he is under fourteen, the guardian], being duly sworn, says, that he has read [or, heard read] the foregoing petition subscribed by him, and knows the con- tents thereof; and that the same is true of his own knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true. [Juratr\^ [Signature.] (p) The application should show that Clark, 14 Abbotts' Pr., 299 ; S. C, 21 the interest of the infants cannot be Sow. Pr., 479. sold for their full value without a parti- (r) Where the action is to be brought tion. Matter of Marsac, 15 Sow. Pr., in the Supreme Court, it will be most 883. convenient to unite in the petition for (g) Leave should be sought where leave to sue this request for, the ap- the infant joins with others, as well as pointment of a guardian c when he. is sole plaintiff. Clark i). chapterof Guakdian ad liTz^.m, ("n/ra LEAVE OP COURT TO SUE. 39 Partition by Infant. 50. Coiisent of Proposed Guardian. I hereby consent to become the guardian ad litem of A. B., in the above action. ' {Signature.] IDate.] 61. Proof of Signatures, (s) L Venue.] On this day of , 18 , before me personally came the above-named , to me personally known to be the person whose name is subscribed to the above petition as wit- ness thereto, who, being by me sworn, did say, that he resides in 5 and that t)n he saw said [petitioner and guardian], to him personally known to be, the petitioner de- scribed in the foregoing petition, and the proposed guardian therein named, sign the petition and consent respectively. [Signature of officer.} 52. Another Form, iy Acknowledgment, {t) [ Venue.} On this day of , 18 , before me ap- peared , to me personally known to be the infant, and the proposed guardian, described in, and who executed, the foregoing petition and consent, and severally acknowledged that they respectively executed the same. [Signature of officer.] 63. Order of Reference. Supreme Court, County of In the matter of the petition of A. B., an infant [by his guar- \ [At a special term, c&c.J dian]. («) 'The signatures should be proved. if) For another form of acknowledg- The omission of such proof from the ment by the guardian, and' proof by his record does not, however, aiffect the oath to the signature of the infant. Validity of the proceedings. Varian v. together with proof of his responsibU- Stevens, 3 Buer, 685. ity, see Form No. 70 infra. ' 40 ABBOTTS' FOEMS. Referee's Report on Petition for Leave to sue. On reading and filing the annexed verified petition of A. B., an infant [or, of G. H., guardian of A. B., an infant], and on motion of Q. R., his attorney : {u) Okdeked, that it be referred to R. S., counsellor-at-law, oi , to inquire into the matters set forth in the petition, and report the facts to the court, with his opinion thereon. 54. Seport of Referee. {Title of the matter.] To the Supreme Court of the State of JSTew York. The undersigned, referee, to whom, it was referred by the order of this court, made at , on the day of ,18 , to inquire into the matters set forth in the pe- tition herein, and report the facts to the court with my opinion thereon, respectfully Report: I. That I have been attended on said examination by of , [and' by the witnesses whose affidavits are hereto annexed]. II. That after due examination and inquiry I find that the facts stated in the petition are substantially true. III. That the petitioner [or, said A. B.] is an infant of the age of , and is a tenant in common [or, joint-tenant] with said T. Z. [here set forth concisely the estate, and the title of the parties]. lY. That the petitioner [or, said A. B.] is in need of an in- come from the value of his share in said property, for his main- tenance [and education] ; but that the condition of the property is such, that without its sale [or, partition] it will not produce such income [or, otherwise state concisely the ground for a par- tition, setting out the circumstances]. Y. State in the same way that the sale cannot he had without such proceeding, {v) YI. Upon these facts, I am of opinion that the interests of the (u) The ifeference may be ex parte, to be brought must be stated in his re- 3 Van Santv. Pr., 9. port. It is not enough to state his ■ («) The facts which the referee relies opinion. Matter of Marsac, 15 IIow. oil as making it proper to allow a suit Pr., 383. LEAVE OF COURT TO SUE. 41 In Partition by Infant. infant in the premises require that an action should be brought for a partition and sale [or, for a partition] of said estate. VII. [If the appointment of a guardian " o.d litem)'' was also sought and rcf crimed, add, I farther report that G. H., who was proposed as guardian ad litem, for said infant, is a responsible person [and is the general guardian of the infant], and is fully competent to understand and protect the rights of the infant, and has no interest adverse to that of the infant, and is not connected in business with the attorney or counsel , of the adverse party ; and that he is of sufficient ability to an- swer to the infant for any damage which may be sustained by his negligence or misconduct in the defence or prosecution of the suit, and is a suitable and proper pei-son to be appointed.] All of which is respectfully submitted. [Signature.] [Date.] 55. Order granting Leave, and appointing Guardian. [Title of the cause.] , [At a special term, c&c] On reading and filing the report of E. S., referee appointed by the order of court, made in this matter on the day of , 18 , which report bears date on the day of , 18 ; and it having been made satisfactorily to appear thereby that the interests of such infant require a par- tition or sale; [and that G. H. is a competent and responsible person to be appointed guardian] : Oedkeed, that said report be confirmed, and that the court hereby authorize proceedings to be instituted by action in this court [or, in the Court of J, on behalf of such in- fant, [or, authorize said infant to unite with in an action] for a division and partition of such real estate, and for a sale thereof, if it shall appear that such partition cannot be made without great prejudice to the owners. [If the petition was also for the appointment of a guardian ad litem, add, on his executing to the People of this State, and duly acknowledging and filing a bond in the penalty of dollars [to le fixed hy the court], and with [one or more sureties, as the court may direct] to be approved by a justice of this court, conditioned for the faithful discharge of the trust com- 42 ABBOTTS' FORMS. Leave to sue on Bond in Court. mitted to such guardian, and to render a just and true account ■of his guardianship, in all courts and places when thereunto required. [Bond of guardian, and approval, as in forms in chapter of Guardians ad litem.] VI. Leave to sue on a Bond given as Condition of a Favoe GEANTICD BT THE CoUET. (w)) 56. Affidavit of Applicant. [Title of the cause in which the bond was given.} T, Z., one of the defendants in this action, being duly sworn, says : I. That heretofore the defendants in this action moved tl\e court for a stay of proceedings in this action until a decision of an appeal from a judgment against them herein, which was then pending in the Court of Appeals ; upon which motion the court [or, Hon. , a judge of ], on the day of , at , duly made an order that all proceedings in this action should be stayed until the decision of said appeal, unless the plaintiff, A. B., should, within days, execute a bond with two sureties to the defendants, con- ditioned to make restitution to this deponent of any money (m) Wliere a bond js conditioned that out the leave of the court, and if the the party vfill pay, &c., when the court plaintiff sues upon it without the should order it, an order to pay is authority of the court, the remedy for necessary. Carpenter v. Aeby, Hoffm., such irregularity is hy motion to set 311. The order should be made on aside the proceedings. Higgins «. Allen, notice to the party, but maybe made 6Sbw.Pr., 30 ; and see Harris B.Hardy, without notice to, the sureties ; and an 3 Hill, 393. This rule, however, was order made at special term is an order disapproved iuN. Y. Central Ins. Co. c. ol ■' the court" for this purpose. Dicker- Safford, 10 How. Pr., 844, where it was son V. Cook, 3 Buer, 324. In Harris v. held in respect to an undertaking given Hardy, 3 Hill, 393, it was said that an under the Code of Procedure, that as order will be granted directing the soon as a party has a right of action on sureties to pay the money into court, such an undertaking filed, he may sue or, in default tliereof, that a suit be upon it without leave of court ; it being brought upon the bond (citing 1 Meriv., his property, although he has no right 49,51; 3 Wadd. 67*. Pr., 330). A bond to remove it from the files without placed on file cannot be removed with- leave. LEAVE OF COURT TO SUE. 43 Action on Bond in Court. which should be collected by proceedings in this action, in case the judgment appealed from as aforesaid should be reversed. II. That on or about the day of , the plaintiff executed a bond with C. D. and E. F., as his sureties, according to the requirement of the said order, and filed the same with the clerk of this court, and gave notice thereof to this defendant, {x) III. That thei-eupon he proceeded on said judgment, and col- lected from this defendant by execution thereon, the sum of dollars. lY. That thereafter, and on or about the day of , the judgment so appealed from was duly reversed on said appeal by the Court of Appeals ; but that court did not make or order any restitution of the property or rights lost to this deponent by the erroneous judgment. V. That the plaintiff and his sureties have not made restitu- tion of the money so collected by him, but the plaintiff has refused to do so although duly requested. [Signatm'e.] [Jurat.'] \ Notice to the jplaintiff of the motion.] 57. Order that the Bond he delivered up to ie Sued. [Title of cause.] [At a special term, x&c] On reading and filing the afiidavit of Y. Z., hereto annexed, and proof of service of notice of this application, and on motion of Q. R., his counsel : Obdeeed [that the plaintiff or his sureties pay the amount thereof into court within days after service of a copy of this order, and on proof of their default], that the bond ot A. B., C. D., and E, F., mentioned in said affidavit, be deliv- ered by the clerk to Y. Z., for prosecution. (x) A bond required to be given as a with tlie clerk, and giving notice to the condition of a favor, granted by the party. Bice i). Whitlock, ■ 15 Abbotts' court is properly delivered by fUing it Pi:, 419. M ABBOTTS' FORMS. Actions on OfBcial Bonds. YII. Leave to sue on Bond of Sheeiff oe othee Officer. 58. Application for Leave to sue on Sherlff^s Bond {y) for Wrongful Levy, To the Supreme Court of the State of iSTew York. The petition of A. B. shows : I. That T. Z. is sheriff of the county of , in this State. II. That upon entering upon his office \or other tirne, accord- ing to the fact] he executed with "W". and X., his sureties, a joint and several bond to the People of this State, conditioned that he should well and faithfully perform and execute his office of sheriff without fraud, deceit, or oppression ; a certified copy of which bond is hereto annexed. III. That on the day of , 18 , an attachment was duly issued at the suit of one M. against the property of one O., as an absconding, concealed, and non-resi- dent debtor, and was duly delivered to Y. Z., as such sheriff, to be executed. lY. That Y. Z., by virtue of that attachment claimed to seize, and did seize, the property of this applicant. V. That this applicant claimed it again from the said sheriff, who thereupon summoned a jury to try the claim ; and the jury, upon an inquisition, duly found that the same belonged to this applicant. YI. That thereupon the attaching creditor M. indemnified Y. Z. for the detention thereof, whereby he was required as such sheriff to detain the same, and he did so detain it, to the lamage of this applicant dollars. YII. That this applicant sued Y. Z., the sheriff', for so seizing and detaining his goods, and recovered judgment against him for the sum of dollars, on which execution has been issued and returned wholly unsatisfied, and that as the appli- es) Leave to sue upon the official People v. Scliuyler, 4 N. Y. (4 Oomst), bonds of sheriflfs, surrogates^ the clerk ' 173. As to leave to sue a bond given, ol the city and county of New York, hy sherifiF to he released from attach- and marshals of cities, is required by 3 ment, see People n. Acker, 30 Wend liev. Stat., 476. This form is based on 613. LEAVE OF COURT TO SUE. 45 SheriflF's Bonds. cant is informed, and believes, Y. Z. is insolvent and unable to respond in danaages. (s) Wherefore the applicant asks leave to prosecute the bond of the sheriff in this court, to recover his damages in the premises, and for such other or further order as may be just. [I)ate.] [Signature.] [ Yerijlcation.] 59. The Same in Case of Neglect to pay over Money on . Execution. [Allege oflcial character and hond, as in the preceding form.] III. That on the day of ? 18 , an exe- cution was duly issued against the property [or, the person] of one M., and in favor of this applicant upon a judgment for the sum of dollars, tlieretofore duly recovered by this applicant against said M., in the Coiirt of , which execution was by this applicant directed and delivered to T. Z., as such sheriff, to be executed. TV. That as the applicant is informed and believes, Y. Z., as such sheriff, collected and received thereupon to the use of this applicant, the sum of dollars, besides his fees and poundage. V. That although more than sixty days have elapsed after the delivery of said execution to Y. Z., and that the petitioner did on the day of , at , demand of him that he pay over the same, he has, in violation of his duty, wholly failed to do so. [a) Wherefore the applicant asks leave to prosecute the bond of the sheriff in this court, to recover his damages in the premises, and for such other or further order as may be just. [Date.] [Signature.] (z) In the exercise of the discretion not essential. Exp. Chester, 5 Mil, conferred hy the statute, the court will 555. require the applicant to show by aifl- {a) On an application for leave t-^ davit or otherwise, that the sheriff is sue the hond of a sheriff for neglect to individually unable to respond in dam- pay over money, a demand upon tlie ages. Anderson v. Hitchcock, 2 Wend., slieriff must be alleged. Ehinelandei 299. But a recovery against him is i). Mather, 5 Wend., 102. 46 ABBOTTS' FORMS. Leave to sue Official Bonds. 60. Order granting Leave to sue on Official Bond. Supreme CoTirt of the State of New York. [At a special term, <&e.] In the matter of the application of A. B. On reading and filing the annexed "petition of A. B., dated on the day of , 18 , and a certified copy of the official bond of Y. Z., and on motion of Q. K., counsel for the applicant, Oedeeed, that A. B. be authorized to prosecute Y. Z., and W. and X. as sureties, in this court, in the name of the People of this State, stating in the process, pleadings, and proceedings, required in such action. That the same is brought on the rela- tion of the applicant. VIII. Leave to sue on Admi^tistkatiou Bond. (5) 61. Application to the Surrogate. To the Surrogate of county. The petition of A. B. of shows, I. That he is a creditor of M. IST., late of , deceased, and has a valid claim against his estate, and that upon his pe- tition as such creditor [or, otherwise'], the surrogate of , on or about the day of , 18 , at , made a decree requiring that Y. Z., (c) to whom letters of adminis- tration [with the will annexed] [or, letters testamentary] upon (b) As to the distinction between tlie For tlie form of an application and several cases in whicli the surrogate order directing an administration bond may order the bond of an executor or to be assigned, see Baggott ». Boulger, administrator to be prosecuted, see 3 Duer, 160. People V. Corlies, 1 Sandf., 228. This (c) The decree or order to pay may form is under Laws of 1830, 320, be against one of several co-executors § 23 ; same statute, 2 Bev. Stat., 116, or administrators, although the bond is §19. joint. Peoples. Downing, 4 ;Sa?ici/., 189 LEAVE OP COUET TO SUE. 47 Bonds of Executors and Administrators. said estate had been granted by the surrogate of , on tbe _ day of , 18 , at , should, 'within days, render an account of his proceedings, or pay the same [or, otherwise state Iriefly the object of the decree made']. Or, where the applicant seehs payment of a legacy, sulstitute, for the first part of the foregoing paragraph, I. That he is a legatee n^der the will of the late M. K of , and entitled to* the payment of a legacy given him thereby; and that upon his petition [continue as above']. Or, where the applicant seelcs payment of a distributive share, I. That he is one of the next of kin of M. 'E., late of deceased, and entitled to the payment of his distributive share of the estate ; and that upon his petition [continue as above']. II. That said Y. Z. has refused to perform said decree, and has not rendered an account [or, has not paid the same], al- though on the day of , at , he had due notice of said decree, and was requested so to do. {d) Wherefore your petitioner asks that the surrogate will cause the bond given by said Y. Z., as administrator of the estate of ]VI. ]Sr., on the day of , 18 , for the faith- ful execution of his trust, and for his obedience to all orders of the surrogate touching the administration of the estate, to be prosecuted ; and apply the moneys collected in satisfaction of such decree in the same manner as the same ought to have been applied b/ him. [Signature.] [ Verification.] 62. Ordcf directing an Administration Bond to le prosecuted. At a Surrogate's Court held at the, &c., on, &c. Present Hon. , Surrogate. {d) There may be cases wliere the of the summons to show cause, and surrogate may proceed to order a -without any demand that he perform prosecution of the bond, ■without any the decree. People «. Rowland, 5 Barb., previous service on the executor or ad- 449. miuistratcr of a copy of the decree, or. 48 ABBOTTS' FORMS. Order to sue on Bond ; — on Judgment. In the Matter of the Estate of M. N. On reading and filing the petition of the above-named A. JB., setting forth a decree made in this court on the day of , 18 , whereby T. Z., as executor [or, adminis- trator] of M. W., deceased, was decreed to [here state the thing directed to ie done^ as in the petition], and that said T. Z., although he had due notice of the decree, and has been requested to perform the same, has refused so to do \or, other ireach'] ; now on motion of counsel for said A. B., Oedeebd, that the bond given '_/ said T. Z. [descriMng it as above], be prosecuted by said A. B., in the name of the Peo- ple of this State, joining his name as relator ;(e) and that the moneys collected therein, in satisfaction of such decree, be ap- plied in the same manner as the same ought to have been ap- plied by said T. Z. IX. Leave to sue on a JmJOMENT. (/") 63. Affidavit of Applicant. \_Name of court whose judgment it is, and of parties.] A. B., the plaintiff [or, defendant] in this action, being duly sworn, says. (e) It seems to be the better practice to bring sucb suits as this, in whicb the People are trustees of an express trust, but not interested in tbe event, in tlie name of the People (People v. Norton, 9 IST. T. (5 Sdd.), 176), with the name of the beneficiary, or one of them, if there are many, j oined as relator. See 1 Sell. Stat., 179, § 1 ; People v. Laws, 4 Abbotts' Pr., 292. In some cases the surrogate might, under the statute, make a difibrent order. Where the bond is assigned to be prosecuted, the action may be in the name of the assignee. Baggott «. Boul- ger, 3 Duer, 160; People v. Laws, 3 Abbotts' Pr., 450. (/) This leave is necessary in the case of all judgments except those of justices {Code of Pro., §71); but as- signees and the representatives of deceased parties axe not "the same parties," and need not seek leave ; and creditors' suits are not deemed actions on judgments within the meaning of the statute. Judgments of the Marine or District Courts of the city of New York, and justices' judgments which have been docketed in the office of the county clerk, thus becoming ui legal LEAVE OF COURT TO SUE. 49 AfBdavit to obtain. I. That on the day of , 18 , he recovered judgment for the sum of dollars, in this action against Y. Z. above named, which judgment remains wholly unsatis- fied. [(?r, where the judgment is a justice' s judgTneyit, docJieted. I. That on the day of , in an action before J. P., a justice of the peace in and for the town of , the deponent recovered judgment against the above-named , for the sum of dollars, of which judgment, thereafter, and on the day of , a transcript was duly filed in the office of the clerk of the county of , whereby said judgment became a judgment of the County Court.]' n. That after issuing execution thereon, and its return un- satisfied, the deponent commenced proceedings supplementary to execution to enforce its paj'ment. III. That upon motion of the defendant above named, and on affidavits produced by him, setting forth and alleging a dis- charge in insolvency theretofore obtained by him, said defen- dant procured an order that the said supplementary proceedings be set aside. IV. That said discharge is void for the followmg reasons [or, otherwise allege the grounds relied on to elude its effect as against the plaintiff 1- Y. That the deponent has fully and fairly stated the case to R,, his counsel in this action, who resides at , in the , and that he has a good, substantial, and meritorious cause of action upon the said judgment, any thing alleged by the defendant to the contrary notwithstanding, as he is advised by his said counsel, after such statement, and verily believes. [Jurat.'] [Signature.] effect judgments of tlie County Court or 3 X D. Smith, 537 ; Mills v. Wlnslow, Court of Common Pleas, are not witMn Id., 18 ; Lyon «. Manly, 10 Abbotts' Pr., the exception. Thompson v. Sutphen, 337. 4 50 ABBOTTS' FORMS. Leave to sue on Judgment. 64. Notice of Motion. [Title of cause.] To T. Z., defendant above named. Take notice that upon the affidavit, a copy of which is an- nexed, and upon the pleadings and proceedings in this action, the plaintiff will move this court, at a special term, to be held at , on the day of , that the plaintiff have leave to bring an action against you upon the judgment therein mentioned, and for such other relief as may be just. [Signature.^ [Date.] 65. Order granting Leave to sue on a Judgment. [Title of cause.] [At a special term, c&c] On reading and filing the annexed affidavit of A. B., and notice of motion, and proof of due service thereof, and on hear- ing Q., of counsel for plaintiff, and E,., of counsel for the defend- ant [or, no one appearing to oppose] : Okdeeed, that the above-named plaintiff have leave to bring an action against the defendant, upon the judgment mentioned in said affidavit. APPOINTMENT OP GUARDIAN AD LITEM. 51 Actions by Infants. OHAPTEK V. APPOINTMENT OP GUARDIAN AD LITEM. [An infant cannot sue in his own name, (as) Nor can his general guardian sue for him without a special appointment. (5) By the present practice ho must first apply to the court, or a judge of the court, in which he would sue, for the appointment of a suitable person as guardian ad, litem or next friend, to appear with him for the purposes of the proceeding, (c) This application must be made by the infant if he is of the age of fourteen, if not, then by his general guardian, or some relative or friend, (i^) (a) This is a general rule, resting on the disabilities and immunities of in- fancy. The provision of 3 Rev. Stat., 446, § 3, that no suit shall be brought by an infant as sole plaintiff, was not at law extended to suits by an infant and an adult jointly (Hulbut «. New- ell, 4 Sow. Pr., 93. Compare Poxwish V. Tremaine, 3 Saund., 213, case 41) ; but it was so extended in Chancery (Matter of Prits, 3 Paige, 374) ; and the Code of Pro. (§ 115), adopts the latter rule, by providing that when an infant is a party, he must appear by. guar- dian. (l) Hoyt v. Hilton, 3 Edw., 203. (c) Under the Code of Procedure if an action be commenced by a next friend, instead of a guardian ad litem, it is irregular. Hoftailing «. Teal, 11 How. Pr., 188. The act of 1853, relate ing to partition, which uses the term •' next friend," should not be regarded as affecting this change. Croghan v. Livingston, 6 Abbotts' Pr., 350. The application when made by or on behalf of an infant plaintiff, must be made before the commencement of the action. Wilder «. Ember, 13 Wend., 191. And where an appointment after the date of the summons and of the verification of thp complaint, is irregu- lar. Hill v. Thacter, 3 How. Pr., 407. Generally, an officer of the court, other than attorneys, yvMl not be ap- pointed guardian of an infant plaintiff. McVickar s. Constable, Hopk., 103. But it is otherwise as to the guardian of an infant defendant. Rule 61. But compare Fitch v. Fitch, 18 Wend., 513. The only remedy, however, where an infant sues without the appointment of a guardian, is to move before answer- ing that the proceedings be set aside, or to plead the plaintiffs infancy in abatement. A plea to the merits alone is a waiver of the obj ection. Fellows v. Niver, 18 Wend., 563; Ch-ah. Pr., 190 ; Schermerhorn ■». Jenkins, 7 Johns., 373 ; but see Exp. Seott, 1 Cow., 33. As to time of making the application for m- fant defendant} and effect of neglect- ing so to doi see Code, § 116 ; and McCoiiuell v. Adams, 1 Code R., N. 8., 114. {d) The chief objects of the appoint- ment are, that the interests of the in- fant may be intelligently pursued, and that the defendant may have a respon- sible person to look to for the proper conduct of the action, and for the pay- ment of costs. The guardian is there- fore a party to the action in such sense as to affect his admissibility as a wit- ness (Hahn v. Van Doren, 1 E. D. Smith, 411), and to allow him to veri- fy the pleadings (Anable v. Anable, 34 How. Pr., 93) ; but not in such sense as to make him an insufficient surety in a bond in the suit (Anonymous, 3 53 ' ABBOT! S' FORMS. Actions by and against Infants, &c. Having done this, he may commence an action, and the proceedings may be signed by an attorney as in other cases. («) Where an infant is a defendant, {f) it is essential that a guardian aS, litem should be appointed for him after service of the process, and before pro- ceeding to issue, {g) For convenience of presenting the whole subject together, both cases are treated in this chapter ; although that of the infant defendant is one that arises after the proceedings treated in the foHovring chapter. Where an infant is a married woman it has been customary to appoint her husband, if he has no interest adverse to her, and is competent in other respects.] I. APPOrNTMBNT OF GXrABDIAN AD LITBM FOR PLAINTIFF. 66. Petition of infant plaintiff, over fourteen p. 53 67. Verification 54 68. Consent of proposed guardian ." .54 69. Petition, &c., in partition cases 55 70. Proof of signatures to petition, and of guardian's com]petency ... 55 71. Order appointing guardian ad litem for infant plaintiff , 56 73. Bond of guardian ad litem for infant plaintiff in partition 57 73. Approval to be indorsed 58 74. Petition by general guardian, or relative, or friend, of infant plaintiff, under fourteen 58 75. Notice of application • 59 n. APPOnSITMBNT OF GUARDIAN FOK A DEFENDANT ON APEUCATIOlSr ON HIS OWN BEHALF. 76. Petition by infant defendant 60 77. Order thereon, appointing guardian 60 Hill, 417), nor to make the judgment an appeal from the judgment. Moody bind his individual rights. Darrin «. i). Gleason, 7 Cow., 483. See Fish «. Hatfield, 8eU. Notes, 1, 36 ; S. C, 4 Ah- Ferris, 3 E. D. Smith, 567. The guar- iotts' N. Y. Dig., 343. dian may be appointed by a justice of («) People V. New York C. P., 11 the peace in an action pending in his Wend., 164 ; HiU v. Thacter, 3 How. court. Mookey «. Grey, 3 Johns., 193. Pr., 407. As to proceedings for the appointment (/) The power to appwnt a guardian of guardians in the district courts c/Si ad litem for an infant defendant rests the city of .New Tork, see Laws of upon general principles, and is incident 1857. Whether the provision of see- to the administration of justice in any tion 114 of the Code, that no guar- court. Brick's Estate, 15 Abbotts' Pr., dian or next friend is necessary in an 13. action by a married woman, is appIicBr (g) Judgment rendered against an ble where the married woman is an in- infant for want of an answer, and with- fant ; whether it was the intention of out the appointment of a guardian ad the Legislature to do any thing more litem, is irregular, and will be set aside than abolish the disability occasioned on motion, and without imposing terms, by coverture, is questionable. As to Kellogi>.Klock,3Cbt?«iJ.,38. Butwhere the cases in which the husband's ap- the plaintiff was ignorant of the de- pointment of an attorney for both is fendant's infancy until after judgment, sufficient, see Cook i>. Eawdon, 6 a guardian has been appointed pending How, Pr., 333. APPOINTMENT OF GUARDIAN AD LITEM. 63 Application by the Plaintiff. 78. Petition by infant defendant in partition p. 01 79. Order thereon appointing guardian 62 80. Bond of guardian for infant defendants in partition 63 81. Petition by relative or friend of infant defendant 63 83. Petition by relative of lunatic defendant 63 83. Petition of guardian of lunatic defendant in partition 64 ni. Appointment ow guaedian fob defendant, on plaintiff's appli- cation. 84. Notice to defendant or Ms guardian that plaintiff will apply. ... 64 85. Proof of service of the foregoing 66 86. Order for appointment on defendant's failure to procure appoint- ment after notice 67 rv. Another fokm: fob plaintiff to peocdee appointment, by petition AND notice of MOTION THEBEON. 87. Petition of plaintiff 67 88. Notice of motion thereon 68 89. Order thereon appointing guardian 08 V. ANOTHBB FOBM, by PETITION EX PAJBTB, AND OBDEE NISI. 90. Order nid '69 91. Affidavit of service and default 69 93. Order absolute 69 VL Application by plaintiff on notice, in pabtition. 93. Petition (under the Code) 70 94. Order thereon, appointing guardian 71 95. Bond of guardian 71 96. Notice of application before commencing partition (under the Eevised Statutes) 73 V7I. Application by plaintiff in case of non-eesident infant de- fendants. 97. Petition 73 98. Order thereon 73 I. Appointment of Guaedian ad litem foe Plaintiff. 6Q. Petition of Infant Plaintiff over fourteen. To the court \or, To Hon. , Judge of the court]. The petition of A. B., an infant, shows I. That your petitioner was of the age of years on the day of last ; and is the only minor child of C. B. deceased, and resides with his mother at , and that he has no general guardian appointed pursuant to law \or, otherwise show what guardianship the petitioner has\. II. State the cause of action hricfly, for instance as follows : That said C. B. died on the day of , seized ABBOTTS' FORMS. Plaintiff's Application for Guardian. in fee simple of certain premises [describing them iriejly] which were leased by the said C. B. at the time of his death to one Y. Z. That said 0. B., by his last will, devised said premises to your petitioner and his brother, D. B., in equal undivided moities. That said T. Z. is now indebted to your petitioner and. the said D. B. in the sum of one hundred dollars, rent ol said premises accrued since the death of 0. B. aforesaid. That your petitioner is desirous of commencing with said D. B. an action against Y. Z. for the recovery of said rent, and your petitioner is, as he is advised, a necessary party plaintiff to such action. That M. ]Sr., the uncle of your petitioner, ol , is worth, as your petitioner is informed and believes, at least the sum of five hundred dollars, over and above all just debts and liabilities, and is a competent and responsible person to become the guardian of your petitioner in such action, (h) Wherefore your petitioner asks that M. K., or some other competent person, may be appointed guardian ad litem of youi petitioner to commence and carry on such action for your peti- tioner. [Signature.'] [Date.] 67. Yerification. [ Yenue.] A. B., being duly sworn, says, that he has read [or, heard read] the foregoing petition, subscribed by liim, and knows the contents thereof ; and that the same is true of his own knowl- edge, except as to the matters therein stated on information and belief, and as to thdse matters he believes it to be true. [Jurat."] [Signaiui'e.] 68. Consent of Pr&posed Guardian. (^) I hereby consent to become the guardian of A. B., to bring the action above referred to. [Signature^] [Bate.] Qi) Guardian for plaintiff need not See, also, as to proof of competency, be the general guardian or oiEcer of Form 70, and note I, infra. thb court. Cook v Rawdon, 6 How. (i) The written consent of the guar- Pr., 333. dian is an essential prerequisite to hia APPOINTMENT OF QUAEDIAN AD LITEM. 55 For Infant Plaintiff in Partition. 69. Petition, c&c, in Partition Cases, {j) To tlie Supreme Court of the State of New York [or, other court]. The petition of A. B., an infant, shows to this court, That he was of the age of years on the day of last. That he is about to commence an action in this court against T. Z., and others, for partition of lands, of which the parties are joint-tenants [or, tenants in common], pursuant to leave granted by the Supreme Court, by an order made at a special term held at , on the day of , 18 . That your petitioner resides with his father 0. B., in , and that M. N., of , is his general guardian [or, otherwise state what guardianship the party has\. Wherefore your petitioner asks that said M. IST., who is a com- petent and responsible person, be appointed his guardian at litevi, for the purposes of this action. [Signature.] [Jurat.'] [ Yerification, and Consent of guardian, as ahove.] 70. Proof of Signatures to Petition for Appointment of Guar- dian for Plaintiff, and of Guardian's Competency. (Jc) [ Venue.] M. N., being duly sworn says, that he is acquainted with the handwriting of A. B., petitioner above named, that the signa- — -^ • — ■ f ■ appointment. McVickar v. Constable, The act of 1853 requires the applioa- Sopk., 102. tion for a guardian or next friend to be (_;■) A guardian ad litem, to institute made according to the Bev. Stat., pt. 3, for an infant an 'action for partition of ch. 1, &c., which is a clerical error, for lands, is not appointed in the same ch. 5. The provisions of 3 Bev. Stat., maimer as in other actions. He can 317, §§ 3-4, are what are intended. be appointed by the court only, and the The most convenient method is tr appointment of a guardian ad litem apply for the appointment of a guar- for an infant plaintiff by a county judge dian on the application for leave to in an action for partition in another bring the action, and a form for this court, is a \ nullity. Lyle v. Smith, 13 purpose will be found in the preceding How. Pt., 104 ; Varian ■». .Stevens, 3 chapter. Ante, 39. Duer, 635; Disbrow ». Folger, 5 M- {k) For other forms of proof of signa- lott^ Pr., 53. ture, see Ante, 89. 56 ABBOTTS' FOEMS. Plaintiflfs Application for Guardian. ture to the above petition is in the handwriting of said A. B., and the signature to the annexed consent is in the handwriting of deponent. Deponent further says, that he resides in the State of ISTew York, to wit, at , and is worth dollars over and above all his debts and liabilities, and property exempt by law from execution ; {I) that he is the general guardian of the petitioner [or, of the infant above named, or, that he is an attorney and counsellor of this court.] That he is, fully com- petent to understand and protect tlie rights of the infant, and has no interest adverse to that of tlie infant, and is not con- nected in business with the attorney or counsel of the adverse party or any of them, (m) [Signature^ \Jurat.^ 71. Order appointing Guardian ad liteinfor Infant Plaintiff. [JVame of the court.'] In the matter of the petition of A. B., an infant, for the appointment of a guardian ad litem. At a special term, &c. {n) (J) Formerly any person might bring an action In tlie name, and as next friend, of an infant, even without Ms knowledge. Fulton ®. Eosevelt, 1 Paige, 178. The Revised Statutes, however, provided that the next friend must be a competent and responsible person. 2 Bev. 8tat., 446, § 3. And these provisicms are stUl applicable under the Code. Ten Broeck ®. Rey- nolds, 13 How. Pr., 463. Both under the old practice, and under the Code, the next friend, or guardian as now called, would be removed if irresponsi- ble, and the proceedings dismissed on the defendant's motion, unless a com- petent and responsible person were substituted. Fulton v. Rosevelt, su- pra; Dalrymple v. Lamb, 3 Wend., 434 ; Ten Broeck «. Reynolds, supra ; Cook 0. Rawdon, 6 Mow. Pr., 383 ; and see Supreme Court Rules, 60; Law- rence «. Lawrence, 8 Paige, 367 ; Rob- ertson v. Robertson, Id., 887. If the guardian is a non-resident he may be required to give security for costs. Ten Broeck v. Reynolds, supra. It there- fore seems the better practice, though not essential, especially where a refer- ence is to be ordered, to show on the application in the first instance that the guardian is a resident. (m) The competency of the proposed guardian must now be shown by affida- vit, upon the application. This is re- quired by Rule Gl of 1870, amending the former rule of 1858. And this ap- plies to all actions. (ji) This order may be made at chambers or by a county judge [Gode. § 115) instead of at special term, ex- cept in partition cases. APPOINTMENT OP GUARDIAN At) LITEM. 57 On Behalf of Plaintiff. Order. Bond of Guardian. On reading and filing the annexed petition of A. B., for the appointment of as his gnardian ad litem, and the consent of said , [and it being made satisfactorily to appear to the court that said is a competent and responsible person] :* (o) Oedeeed, that be and hereby is appointed guardian ad litem, of A. B., infant above named, and authorized to pros- ecute for him as such guardian, the action mentioned in the annexed petition \in partition cases, add, on his executing f to the People of this State, and duly acknowledging and filing, a bond in the penalty of dollars [to he fixed by the court], and with sureties [one or more, as the court m,ay direct], to be approved by a justice of this court, conditioned for the faithful discharge of the trust committed to such guar- dian, and to render a just and true account of his guardianship, in all courts and places when thereunto required]. 72. Bond of Guardian ad litem for Infant Plaintiff in Partition. Know all men by these presents, that we, M. N., of , merchant, and E. F., physician, and G. H., merchai^t, of the same place, are held and firmly bound into the People of the State of ISTew York, in the penal sum of dollars, for which sum well and truly to be paid, we bind ourselves, our heirs, executors, administrators, and assigns, jointly and sever- ally, firmly by these presents. Sealed with our seals, and dated the day of , 18 . Whereas, by an order made by the Court, on the day of , 18 , at , said M. N. was appointed guardian ad litem, of A.B., infant, of , to conduct, on the part of said infant, proceedings to be insti- tuted on his behalf [together with , co-plaintiffs], for a division and partition, or sale of the real estate mentioned in the petition upon which said order was made ; said guardian being required to give security. Now, therefore, the condition of this obligation is such that if the said M. N. shall faithfully discharge the trust committed (o) The clause in hraokets will not be necesaaiy in ordinary actions. Rule 60 58 ABBOTTS' FORMS. Petition on Behalf of Plaintiff. to him as such guardian, and render a just and true account thereof in all courts and places when thereunto required, then this obligation to be void, otherwise to remain in full force. Sealed and delivered [Signaiuret and seals.] in presence of {Acknowledgment or proof , and Justification of sureties.'] (p) 73. Approval to 'be Indorsed. 1 approve of the within bond as to the form and manner of execution, and as to the sufficiency of the sureties. \I>ate.] [Signature of judge.] 74. Petition ly General Guardian, or Relative, or Friend, for appointment of Guardian ad litem for Infant Plaintiff under Fourteen, {q) To the Court. The petition of G. H., respectfully shows : I. That your petitioner is the testamentary guardian of A. B,, an infant under fourteen years of age, duly appointed by the will of C. B., his father [or, is the general guardian of A. B., an infant under the age of fourteen years, duly appointed such on the day of j 18 , by the order of M. N"., surrogate of the county of , or, is the father, or, other relative of A. B., an infant under the age of fourteen years]. II. That said A. B. was years old on the day of last, and resides at , with the pe- titioner. III. Set forth concisely the cause of action. lY. That your petitioner is desirous of bringing an action to recover the amount due on the foregoing facts [or, to foreclose the said mortgage, or, stating other relief sought], on behalf of said A. B. (p) The sureties must justify, and of fourteen, the application for the ap- the hond must be acknowledged like a pointment of a guardian must be made deed. Rule 6. See Forms 20 and by his general or testamentary guar- 23. ~ dian, or by a relative or friend. Oode, (g) When the infant is under the age § 116. APPOINTMENT OF GUAEDIAN AD LITEM. 59 Application by Relative or Friend of Plaintiff. \If the ■petitioner seeks appointment of himself^ add., that your petitioner is willing to become the guardian ad litem of said A. B., and that he is worth, adding allegations of competence, as in Form 70.] Wherefore your petitioner asks that he may be appointed [or, that F. G., who resides at , in this State, and who is a competent and responsible person, and worth dol- lars over all his debts and liabilities, and property exempt by law from execution, may be appointed] guardian ad litem of said A. B., to prosecute said action for him. [Signature.] [ Verif cation. If the proposed guardian is another than the petitioner, add his Consent ; and, also, Proof of Signature, unless he is an attorney.] 75. Notice of foregoing Application hy ReloMve or Friend [Name of court.] In the matter of the petition of C. D. for the appointment of a guar- dian ad litem for A. B., an in- fant. To . {r) Take notice that on the annexed petition [consent, and affidavits] an application will be made to this court, at a special term thereof, to be held at ,• on the day of , 18 , at o'clock in the forenoon, for an order appointing E. F. guardian ad litem of A. B., infant above-named, and authorizing him to prosecute the action referred to in said petition. [Signature.] [Bate.] (r) This notice must be given to the § 116. If the application is made by o-eneral or testamentary guardian of the person with whom he lives, and he the infant if he has one, if not, to the has no guardian, that fact should au- person with whom he resides. Code, pear by the petition, 60 ABBOTTS' FORMS. Defendant's Application for Guardian ad litem. IL Appointmknt of Gqaedian ad litem foe the Defendant, UPON AN AMPLICATION ON HIS OWN BeHALF. 76. Petition hy Infant Defendant for the Appointment of a Guardian ad litem. [Title of the cause.] To Honorable , one of the justices of the Court. The petitioner, Y. Z., one of the defendants above nanaed, respectfully shows, I. That an action has been commenced (s) against your pe- titioner in this court by A. B. [here state object of the action']. II. That your petitioner is an infant of the age of years on the day of last, and resides with his father at , and that is his general guardian. III. That twenty days have not elapsed since the service of the summons upon the petitioner [or, that no application for appointment of guardian ad litem to appear on behalf of your petitioner, in said action, has been made, to the best of your pe- titioner's knowledge and belief], {t) Wherefore your petitioner asks that Q. H. may be appointed his guardian ad litem, to appear and defend said action on hie behalf. [Signature.] [Verification, Consent of proposed guardian, and Proof of competency, as in preceding forms.] 77. Order Appointing Guardian. [As in Form 72 to the *.] Oedeeed, that be and hereby is appointed guar- («) Service of tlie summons on tLe (t) After the expiration of twenty applicant need not te shown. It Is days from the service of summons tha enough that the action has been com- infant may still apply, unless fore- menced, and he is a party. Varian v. stalled by an application by the ad- Stevens, 3 Duer, 635 ; Althause v. verse party. McConnell «. Adams, 8 Radde, 3 Bosw., 410. Band/., 738 ; S. C, 1 Code JR., W. 8., 114. APPOINTMENT OP GUAEMAN AD LITEM. 61 Applications on Behalf of Defendant. dian ad litem for the petitioner, and authorized and directed to appear and defend on his behalf the action mentioned therein. («) 78. Petition hy an Infant Defendant in Partition. [Title of the cause.'] To the Court. The petition of T. Z., one of the defendants above named shows : I. That this action has been commenced against the pe- titioner and others, by service of a summons upon this petitioner [or, upon "W. X.,' one of the defendants], for a partition or sale of real estate situate in , the value of which is, as your petitioner is informed and believes, about dol- lai-s. That your petitioner's interest in the same is , [or, of the value of about dollars]. II. That your petitioner is an infant of the age of years on the day of last, and that he re- sides with "W". E., his father, and that he has no general or tes- tarnentary guardian [or, otherwise state what guardianship he has]. in. That twenty days have not elapsed since the service of the summons on your petitioner [or, that no guardian ad litem has been appointed for your petitioner] in this action, to the best of his knowledge and belief. Wherefore your petitioner asks that G. H., of , his said general guardian [or, an attorney and counsellor of this court], and a competent and responsible person, be appointed his guardian ad litem, and authorized and directed to appear and defend said action in his behalf. [Signature.] [ Verification. Consent of Guardian, Proof of Signature, and of Competency, as in preceding forms.] . (m) TMs order, together -with the place of trial in the action is laid, and petition, should be filed in the office of notice thereof should be served on the the clerk of the county where the attorney of the plaintiff 62 ABBOTTS' FORMS. Petition for Guaidiau by Defendant. T9. Ordsr appointing Ouardian. [Title of the cause.] , [At a special term, dec] On reading and filing the annexed petition of Y. Z. for the appointment of as his guardian ad litem, with the consent of said , and it being made satisfactorily to appear to the court, that said is a competent and responsible person, * Oedekrd, that he be, and hereby is appointed {v) guardian ad litem of Y. Z., infant defendant above named, and authorized and directed to appear and defend this action as such guardian on his behalf, upon his executing [continue as in Form, 71, p. 57, from the f]. 80. Bond of Ouardian ad litem of Infant Defendants in Partition. [Penalty, as in Form 72.] Wheeeas, by an order made by the Supreme Court on the day of 5 18 , in an action in which A. B. is plaintiff, and W. X. and Y. Z. defendants, the above-named M. ]Sr. is appointed guardian ad litem of said defendant Y. Z., an infant, to appear for him, and defend said action in his be- half, he being required to give security. Now, THEEEFOEB [continue as in Form 72]. [AcTcnowledgment and Justification.] [Approval of Judge.] 81. Petition hy Relative or Friend of Infant Defendant. [Title of the cause.] To the Honorable [Or, To the Court]. The petition of C. D. shows : I. That the above-entitled action has been commenced by service of summons upon Y. Z. [or, upon , one of the («) That a peremptory, order is not Oh., 137; Varian v. Stevens, 3i)«6r, irregular. Conckliu v. Hall, 3 Barl). 634. APPOINTMENT OF GUARDIAN AD LITEM. 63 Petition on Belialf of Defendant. defendants above named]. That the object of the action is [here state it concisely]. II. That the defendant Y. Z. is an infant, years old on the day of last \_and if he is over fourteen years, add, and has neglected to apply for the appoint- ment of a guardian ad litem in this action]. That he resides with the petitioner, who is his father, and that he'has no gener- al guardian [or, otherwise state what gioardianship he has]. Wherefore your petitioner asks that a guardian ad litem be appointed to appear and defend said action, on behalf of the infant. [Signatwre.] [Verification, dec, die, as in preceding forins.] {w) 82. Petition of Relative of Lunatic Defendant. [Title of the cause.] The petition of M. N. respectfully shows : I. That an action has been commenced in this court, between the parties above named, by the issue of summons, and the ser- vice thereof on some of the defendants. II. That Y. Z., one of the defendants above named, is a luna- tic, and totally incapable of putting in his answer, or conduct- ing any business whatever. III. That he is of full age, viz., about years, and has no committee, and that he resides with the petitioner, who is his father, and is under the petitioner's control and custody. IV. That your petitioner has no interest adverse to the rights of said Y. Z., and is not connected in business with the attorney or counsel of the adverse party, ix) "Wherefore your petitioner asks that he may be appointed the guardian of said Y. Z., for the purposes of this action, and for such other or further order as may be just. [S!gnature.] [Verification, and Notice if necessary, {y) and Order, similar to preceding forms.] (w) Notice of this application must tice to the plaintiflf, unless the lunacy be given. Code, % 116. of the defendant is alleged in the cora- {x) This allegation is not necessary plaint. Heller v. Heller, 6 Sow. Pr.. in ordinajy actions. Bule 60. 194. (^) This application must he on no- 64 ABBOTTS' FORMS. Petition by Plaintiff for Guardian for Defendant. 83. Petition of Guardian of a Lunatio Defendant in Parti- tion, (s) \_Title of the cause.] To the Supreme Court of the State of New York : The petition of W. J. M. of W. county, Ohio, the guardian of S. M., an [infant] idiot [about twenty years of age], respectfully shows : * That an action has been commenced against your petitioner's ward and others, in the Supreme Court of the State of !N"ew York, by A. B., for partition of certain premises lately owned by M. IT., deceased, situated in the city of New Yoi-k, for a particular description of which premises reference is made to the complaint of the plaintiffs. That your petitioner's said ward is a [an infant] lunatic, and is now residing with your petitioner \o7\ is now under the custody and charge of your petitioner]. Wherefore the petitioner asks that S. J. of the city of New York, counsellor-at-law, may be appointed the guardian of your petitioner's ward in the defence of said action. [_Add statement as to his competency and responsihility, as in, preceding forms.'] [Signature.] [Date.] [Verification, die, (&o., as in preceding forms.] {a) III. Appointment of Guaedian foe the Defeneant upon an Application by the Plaintiff. 84!. Notice to Defendant or his Guardian, that Plaintiff will apply. % [Title of cause, &c.] To Y. Z., one of the defendants, (c) Take notice, that unless you procure the appointment of a guardian ad litem, to appear and defend this action on your be- half, within twenty days from the service of the summons (a) This form is supported by Eogers be necessary to give notice to other ». McLean, 11 Ablotts' Pr., 440. resident minors. 'SrRev. Stat, 317, § 2. {a) If the action is for partition, and (6) I'he appointment of a guardian the petitioner is also an infant, it may ad litem for a defendant, when made APPOINTMENT OP GUARDIAN AD LITEM. 65 Plaintiff's Motion. herein upon yon [or, unless the defendant Y. Z. procures the appointment of a guardian ad litem to appear and defend this action on his behalf within twenty days from the day of 18 , the date of the service of the summons herein upon him], an application will be made to this court at a special term thereof, to be held [or, to Hon. J, on the day of , 18 , at o'clock in the forencMJn for an order appointing some suitable and competent person {d) on tlie application of the adverse party, must be upon notice. Odds, §116. In actions of partition ten days' notice must be given. 2 Bev. Stat., 576. As to notice in sucli cases, see note [o]. Form 94, infra. The notice may be served with the summons in form as above, and on the infant's failure to procure the appointment of a guardian ad litem, an absolute order may be ob- tained for his appointment. Concklin V. Hall, 2 Barh. Oh., 136. Another course is to wait until the expiration of twenty days from the service of the summons, and then obtain, on affidavit or petition (as on page 71, infra), an ex-parte order nisi for the appointment of a guardian (Form 90), which wiU be made absolute {Form 92) on proof that no application has been made by or on behalf of the infant. Knicker- backer «. De Freest, 3 Paige, 304 ; Concklin v. Hall, 3 Barb. Ch., ISC. Or an absolute order may be obtained in the first instance upon notice, as in Form 94. The latter is the prefer- able, and the usual course under the Code. (c) If the infant has a general or tes- tamentary guardian, the notice should be served upon him, and the clause in the brackets may be used. If he has none, and is over fourteen, the notice should be served on him ; if under that age, upon the person with whom he resides. Code, § 116. Where he is a non-resident, instructions should be ob- tained from the court as to the manner of service. Kniokerbacker v. De Freest, 2 Paige, 304. As to the case where neither the infant nor his guardian resides within the State, see Ontario Bank n. Strong, 3 Paige, 301, where it is said that in the case of infants who are absentees, it is a matter of course to make an absolute appointment of a guardian ad litem, if they, or their friends, do not cause an appointment within twenty days after the expira- tion of the time limited in the order for their appearance. See Concklin v.. Hall, 3 Barb. Ch., 136. By the amend- ment added to section 110 of the Code in 1862 (ch. 460), the case of infant ab sentees in partition and foreclosure is provided for (see Form 97) ; and by the amendment added in 1868 (ch. 292), the case of infants residing in States ■vyith which there is no regular communication by maU, is provided for. {d) The court will not appoint a guardian ad litem for an infant defend, ant on the nomination of the plaintiff. Knickerbacker ■». De Freest, 2 Paige, 304 ; and see Grant «. Schoonhoven, 9 Id., 255. The rule, however, seems to be somewhat relaxed, especially where the plaintiff applies for the ap- pointment "of the general or testamen- tary guardian of the infant. Sucli per- son should always be selected for guar- dian ad litem of an infant, as wiU be most likely to protect his interests ; and the nearest relative of the infant, hav- ing no adverse interests in the suits, is entitled to be heard in the selection Grant r. Van Schoonhoven, m-pra. 66 ABBOTTS' FORMS. Motion for Appointment of Guardian. guardian ad litem for you [or, for said defendant'T. Z.], and authorizing and directing him to appear and defend the above- entitled action in y-our behalf \or, in behalf of said defendant Y. Z.], and for su jh other and further relief as may be just. [Date.'] [Signature.] 85. Proof of Service of the Foregoing. [Title of the cause.] [ Venue.] Q. E.., being duly sworn, says that he is managing clerk in the office of the attorney of the plaintiff in this action ; that on the day of , at , he served a notice, of which the annexed is a copy, upon G. H., the general [or, testamentary] guardian within this State, of the infant therein named [or, that the infant therein named was over four- teen years of age, on the day of , 18 , and then had no general or testamentary guardian within this State], and that on the day of , at , this deponent served a notice, of which the annexed is a copy, on said infant, by delivering the same to him personally (e) [or, that said infant is under fourteen years of age, and residing within this State, with W. Z., his mother, at , and that on the day of , deponent served a notice, a copy of which is hereto annexed, on said "W". Z., by delivering the same to her personally]. Deponent further says that twenty days have elapsed since service of such notice, but said infant has not appeared, and no application has been made by him or on his behalf for the appointment of a guardian ad litem, to the best of this deponent's knowledge and belief. [Signature.] [Jurat.] (e) According to the general rule be served on Hm by leaving it at Us prescribed by § 409, subdiv. 3, of the residence, between six o'clock A. M. and Code, this notice, if addressed to tbe nine o'clock p. M., with, some person of infant, and to be served on him, may suitable age and discretion. APPOINTMENT OF GUARDIAN AD LITEM. 67 Plaintiflf's Petition against Defendant. 86. Order of Appointment on Defendants Failure to procure the Appointment after Notice. \Title of the cause, t£c.J On reading and filing the annexed notice, proof of service, and of no application on the part of the defendant for the ap- pointmeni for guardian ad litem, and on motion of Q. H., coun- sel for the plaintiff, * Ordered, that (f) be and hereby is appointed guar- dian ad litem, of the infant defendant Y. Z. in this action, and is authorized and directed to appear and defend the same on his behalf as such guardian. lY. Another Form fob Platntif]? to procure Appointment, BY Petition and Notice of MoTio^f thereon. 87. Petition of Plaintiff. [Title of the cause.] The petition of A. B. [attorney for], the plaintiff in this action, shows : That it was commenced for [here state hriefly tJie oiject], that the summons has been served on the defendant T. Z., as appears by tjhe summons and proof of service, hereto annexed [or, on file in this court]. That the defendant Y. Z., is an infant of years of age on the day of last, and that [although twenty days have elapsed since the service of the summons upon him] (g) he has neglected to apply for the appointment of a guardian ad litem in this action. That said infant resides with his mother, "W. Z., a widow, livino- in , and has not, to the best of the knowledge and information of this deponent, any general or testamentary iruardian in this State [or, otherwise state what guardianship tfie infant has\. if) The guardian being nominated, {g) If he is under the age of fourteen his consent must be obtained, as in the this reference to the lapse of time need preceding forms, except perhaps where not be inserted, he is an attorney or oflBcer of the court. Rule 60 68 ABBOTTS' FORMS. Plaintiff's Motion for Defendant's Guardian. Wherefore, the plaintiff asks that some suitable and compe- tent person be appointed guardian ad litem for said defendant, and be authorized and directed to appear and defend the action in his behalf, and for such other and further relief as may be inst. \Signatv,re.'\ [ Yerification.'\ 88. Notice of the Motion thereon. \ Title of the cause.} To (A) Take notice, that on a petition, of which the foregoiug \or, the within] is a copy, and on the summons and notice of object of action [or, complaint] in this action, copies of which were heretofore served on you, a motion will be made at the next special term [or, before Hon. , one of the justices] of this court, at , in the city of , on the day of , at the opening of court on that day, or as soon thereafter as counsel can be heard, for an order appointing a guardian ad litem for the within-named infant in this action, and for such other or further relief as may be just. [Date.] , [Signature.] [Proof of service, as in Form 85, su^a.] 89. Order ajypointing Defendant s Guardian on the Plaimiijf s Petition. [Title of cause.] On reading and filing the petition of A. B., dated , for the appointment of a guardian ad litem herein for the de- fendant T. Z., and proof of due service thereof, and on motion of Q. K., plaintiff's counsel [continue as in Form 86, from the *]. iji) As to wlioni tlie notice should Toe addressed, see note (c), p. 65. APPOINTMENT OF GUAEDIAN AD LITEM. 69 Plaintiff's Motion against Defendant. V. Anothek Form, by Petition ex paete, and Ordek ISTisi. [J^etition, as in Form 87.] 90. Order nisi. {Title of the cause.} [At special term, dec.'] On reading and filing the petition of A. B., dated , for the appointaient of a guardian ad litem, for the defendant Y. Z., and on motion of Q. R., plaintiff's counsel, Oedeeed, that be appointed guardian ad litem of the defendant Y. Z., unless within ten days after service of a copy of this order upon him he procures a guardian ad litem to be appointed. 91. Affidavit of Service and Default. [ Yenue.l A. B., being duly sworn, says that he is managing clerk in the oflBce of the plaintiff's attorney. That on the day of , 18 , a certified copy of the annexed order was duly served {i) on A. B., the infant therein named [as'appears by the annexed affidavit of T.], and that although more than ten days have elapsed since the service of said order upon him no^ application has been made on his behalf for the appointment of a guardian ad litem, to the best of deponent's knowledge and belief. [Signature.] [Jurat.] 92. Order Absolute. (J) [Title and Recitals, as in Form 86.] Oedered, that the order of the day of ^ , 18 , be made absolute, and the said E. F. be, and hereby is, appointed guardian ad litem for the defendant A. B., and is authorized to appear and defend this suit for him as such. (i) As to mode of service, compare should be obtained (MoVickar^.Coiista. Form 85, supra, and note. ble, Hopk., 103), and, together with an (j) The guardian's written consent affidavit as in preceding forms, showing 70 ABBOTTS' FORMS. Motion for Guardian. VI. Application on Notice, m Partition. 93. Petition on Notice {under the Code). Qc) [Title of the cause.'] To the Supreme Court [or, to the County Court of county]. The petition of A. B., plaintiff above named, shows : That the above-entitled action is now pending in this court ; that it is brought for the partition of certain real estate in the complaint herein particularly described, that the defendant Y. Z. above named is an infant of the age of years, and is a necessary [or, proper] party defendant in this action, as your petitioner is advised and believes. Your petitioner further says, that said defendant Y. Z. has been duly served with the summons in this action, {],) as appears by the affidavit of service hereto annexed ; that [although more than twenty days have elapsed since the service of said summons upon him] (m) no application on his behalf has been made for the appointment of a guardian ad litem, to the best of your peti- tioner's knowledge and belief. Wherefore, &c., [as in Fm^m 87]. [ Verification, Consent, and Affidavit, as in preceding forms^ {n) the guardian's qualifications, in com- show the service of process on the de- pliance with Rule 60, should be pre- fendant. Grant ii. Van Schoonhoven, 9 sented to the court, together with his Paige, 255 ; People 'c. Hoffman, 7 Wend., bond in cases where a hond is> required, 489. before making the order absolute. Otherwise where the application is (h) An application for appointment made by the infant in pursuance of of a guardian ecifying such other mode ofsermce as the court shall direct]; and that said guardian execute to the People of this State, and duly ac knowledge and file a bond, &c. [as in Form 71,^. 57, or, if thi cleric he appointed, the clause may be omitted}. COMMENCEMENT OF ACTION. 75 Analysis of Section of Summons and Notices. CHAPTER VI. COMMENCEMENT OF ACTION, Section I, SUMMONS, (o) AND NOTICES OF ACTION. I. Stjmmons 99. In an action arising on contract for the recovery of money only ; — complaint served p. 7(5 100. For relief ; — complaint served T'J 101. Summons for money-demand or for relief; — complaiat not served '^^ 103. In the New Tork Marine Court 80 103. In a New York District Court 80 104 Indorsement on summons in action for a penalty 81 105. Notice to be appended to summons in case of publication 81 106. The same, in case of a non-resident defendant, proceeded against under the act of 1843 SI n. Notice op object op action. 107. In partition 82 108. In foreclosure 82 ni. Lis pendens. 109. Notice of pendency of action for foreclosure 83 110. The same, in partition 83 111. The same, in an action in which an attachment has been issued 84 113. AMda.vit oi Siing notice ot Us pendens 84 (ffl) It has been said that the sum- ply. Blanchard v. Strait, 8 Sow. Pr., mons is to be governed by the rules 83 ; and see Tuttle v. Smith, 6 AUbotts' formerly applicable to a capias, so far Pr., 339 ; and People «. Bennett, Id., as they can properly be made to ap- 348. 76 ABBOTTS' FORMS. Commencement of Actions. I. Summons. 99. Summons in an Action arising on Contract for the Recovery of Monc]] onlyifi) — Covvplaint Served. [Name of the Court.'] (c) A. B. \_plaintiff~\ against Y. Z. \_defendani\. To Y. Z., defendant ((^) [or, one of the defendants] above named. You are hereby summoned and required to answer the com- (6) This form, notifying the defend- ant that, if ie faU to answer, the plain- tiff will take judgment against Mm for a specified sum, is required in " an ac- tion arising upon contract for the re- covery of money only." Code, § 129, suhd. 1. It is settled in the Supreme Court that this is appropriate only in actions for the recovery of , a definite S lim as such, and where the court will not be called on to ascertain or adjudge any thing hut the existence and terms of the contract by which it is due. Tut- tle D. Smith, 6^66o«s' Pr., 339; People e. Bennett, Id., 343. In the latter case, and also in Commissioners of Excise ». Claason, 17 How. Pr., 193, it was held that this form is appropriate in an action to recover a statute penalty, and it seems that it would be so in an action upon a judgment ; so also in an action for goods sold. Diblee v. Mason, 1 Code Ji.,Z1. But see note (jri?) on p. 78. Upon the other hand, any action that requires the determination of amounts unliquidated, in their nature requiring other proof, and depending upon other considerations than such as appear in the contract itself, is not to be deemed an action for the recovery of money only, but rather an action to ascertain and establish the plaintiflf's right to damages, which are to be paid in money. The notice prescribed by sub- division 2, is the proper one in such cases,— «. g., in an action for conver- sion, Voorhies ii. Schofield, 7 Sow. Pr., 51 ; — even though the complaint sounds chiefly in contract, as for goods sold, Bidders. Whitlock, 13 Id., 208 ;— in an action for damages for breach of promise of marriage, Davis v. Bates, 6 Abbotts' Pr., 15 ; and see McNeflf i). Short, 14 Sow. Pr., 403 ; — or for breach of war- ranty, Dimn v. Bloomingdale, 6 Abbotts' Pr., 480, note ; — or for deceit, Le%-y «. Nicholas, 15 Id., 63, note; — or on an un- dertaking of bail, Kelsey «. Covert, 6 Id., 386, note ; Levy «. Nicholas, 15 /(?., 63, note ; — or for breach of agreement to carry on business, Tuttle v. Smith, supra ; — or to till a farm, Cobb «. Dun- kin, 19 Sow. Pr., 164; — or to buy, Salters v. Ralph, 15 Abbotts' Pr., 373 ;— or to sell on commission, Norton v. Crary, 14, Id., 364 ; — or to convey lands, Johnson «. Paul, 6J(Z.,385,raovorn complaint in this action, hereto annexed, the state- irients contained in which are true, to the knowledge of the deponent].'* {c) II. That the defendants are a foreign corporation, created under the laws of the State of , having their place oi business in , in that State ; and no officer [or, agent] {d) of said defendant, upon whom service of summons can by law be made, can after due diligence be found within this State, al- though the deponent has made inquiry [stating wha{\. III. That the president of said corporation [or, other officer proposed to he served hy mail] is M. 'N., who resides at IV. That the defendants have property within this State, at , consisting of [describe property]. davit, and may be used as sucli. But when it is so used tlie complaint or its verification should specify what portion of the allegations are on information and belief, and the more material alle- gations should be sworn to positively, or the grounds of belief and sources of information stated. Boome 1). Webb, 1 Code R., 114; Minor v. Terry, 6 How. Pr., 208 ; Jones v. Atterbury, 1 Code R., N. 8., 87 ; and see Smith v. Reno, 6 Eow. Pr., 124 ; Penfield v. White, 8 Id., 87. Or, an allegation may be in- serted, as here,- in the affidavit, that the facts stated in the complaint are true, and if any of them are stated on infor- mation and belief, the sources of infor- mation and grounds of belief may be given. («) The order may be made at special term, or at chambers, or by the county judge of the county. But as the affi- davit and order must in all cases be filed (Km?« 4), and as the complaint is. required to be filed prior to publication (Code, § 135, last part of subd. 5), it is well, where practicable so to do, to ap- ply at special term, on the complaint with an affidavit, and to file the com plaint at the time. This often saves a repetition of the grounds of action in the affidavit. (d) It must be proved to the officer who is to make the order that the per- son to he served (hot the defendant) can- not after due diligence be found in this State. Hulburt v. Hope Mut. Ins. Co., 4 Sow. Pr., 275; and the affidavit should mention the name of the State in which the defendants are incor porated. 1 Barb. 0,h. Pr., 96. Service of process upon a foreign corporation, doing business in this State, may be made upon any person found vrith in the State acting as their agent unless by a designation filed in the office of the secretary of state they have appointed some person in the county in which they are doing busi- ness, to receive service. Laws of 1855, 470, ch. 279. Foreign insurance com- panies are required by law to file a designation of an agent or attorney on whom process may be served. Laws of 1862, 506, ch. 300, § 3 ; Id., 617, ch. 367, g 5. COMMENCESIENT OF ACTION. 87 Order for Publication against Foreign Corporation. Y. That the cause of action against said defendants arose in this State, as appears by the foregoing statements [or, the an- nexed complaint], {e) [Signature.] [Jurat.'] 114. Order of the Court for the Publication of the Summons, where the Defendant is a Foreign Corporation. [Title, i&c] [At a special term.] It appearing to the satisfaction of the court by the annexed affidavit [and complaint], that * the defendants are a foreign corporation, and that a cause of action exists against them in favor of the above-named plaintiff; that the defendants have property within this State \or, that the cause of action arose within this State], and that no officer [or, agent] of the defend- ants can with due diligence be found within the State, on whom service of process can be made according to law ; and that the president [or other officer, &c.] of said corporation is M. N., and resides at : f on motion of Q. E., plaintiff's counsel, Ordeeed, that the summons herein, a copy whereof is hereto annexed, (/") be served by publication of the same in two newspapers as follows: {g) in the , published in , and in the , published in ; once in each week for six weeks ; and that a copy of the sum- («) The court liaa no jurisdiction to dent of the State should be substitu- proceed against a foreign corporation, ted. unless the plaintiff is a resident of the (/) The order for publication should State, or the cause of action has arisen, recite the summons in the action, or or the subject-matter of it is situated, refer to it as being annexed, that it within the State. Code, § 472. It is, may appear that there was a summons, however, said in Bates d. New Orleans, and for the purpose of identifying it. Jackson & Great Northern R. R. Co., Rawdon v. Corbin, 3 Sow. Pr., 416 ; 4 Abbotts' Pr., 72, that proof of these Vernam u Holbrook, 5 Id., 3 ; Everts facts need not be given before issuing son i). Thomas, Id., 45. an ordinary summons, but it seems {g) An order of publication as to a safer to insert the averment in case of non-resident defendant in Chancery, proceeding by publication. If there- shoidd specify the name of the news- fore this averment is not inserted, an paper. Diefendorlf v. Heath, 6 Gli. averment that the plaintiff is a resi- Sent.. 32. S8 ABBOTTS' FORMS. Affidavit for Publication against Absent or Absconding Debtor. mons and complaint be forthwith deposited in the post-ofhce, (A) directed to the president {i) of the defendants at his said p\sce of residence, and the postage paid thereon. 115. Affidavit where Defendant has departed from the State, to defraud Creditors, or to avoid Service. \_As in Form 113, to the *.] II. That the defendant is a resident of this State, to wit, ol , {j) but cannot after due diligence be found within the State. That a summons in this action has been made out, a copy whereof is hereto annexed, and due diligence has been used to effect its service ik) [hei'e state what effort has heen madej or, annex and refer to return of officer or affidavit of other person attempting to make service']. {1} That as this deponent believes the defendant has departed from this State, to , iu the State of , with iutent to defraud his ci'editors [or, with intent to avoid the service of summons, or both], and the grounds of his belief are as follows : — [here set out in detail the (h) If an order for service by publicar the affidavit shows that the defendant tion does not direct that a copy of the resides out of the State. Vernani v. summons and complaint be mailed, Holbrook, 5 Sow. Pr., 3 ; Eawdon v. it is fatally irregular. Warren v. Corbin, 3 Id., 416. But showing an Tiifany, 9 Abbotts' Pr., 66 ; S. C, 17 unsuccessful effort at service is not Sow. Pr., 106. It must direct them enough unless it also appears that the to be forthwith deposited. Hyatt v. defendant cannot be found, and that Wagenright, 1 8 Id., 248. he has either departed from the State, (i) The name of the president or or keeps himself concealed for the pur- other head of the corporation, or of the pose of defrauding his creditors or secretary, cashier, treasurer, a director, avoiding the service of process. Van or managing agent, may be inserted Bensselaer «. Dunbar, 4 Id., 151. here, as service on any of these officers © It rests solely vnth the j udge who is good. Code, % 134, subd. 1. And grants the order for publication to de- the order for publication is unnecessary termine whether or not due diligence and will not be granted if any of these has been used to effect a personal ser- officers can be found and served within vice on the party to be served ; and if the State. the affidavit is in form sufficient, his (J) His particular place of residence granting the order is evidence that it must be alleged, so that the order appeared to his satisfaction that due may direct as to mailing the summons, diligence was used, and though the &c. evidence of diligence may be slight the (k) This allegation of effort to serve order vrill not be set aside. Eoche ». summons is necessary except where Ward, 7 Sow. Pr., 416. COMiMENCEMENT OF ACTION. 80 Affidavit for Publication against Fraudulent Debtee, facts and circumstances which show that the defendant has done so\ {in) 116. The Same, where the Defendant heeps himself Concealed. \_As in Form 113, to the *.] II. That the defendant is a resident of this State, to wit, of , but cannot after due diligence be found within the State. That a summons in this action has been made out, a copy whereof is hereto annexed, and due diligence has been used to effect its service \liere state what, or annex proof ~\. That as this deponent believes the defendant keeps himself concealed [n) within this State, with intent to defraud his creditors [or, with intent to avoid the service of summons, or ioth^; and that the grounds of his belief are as follows : — [_setting them out in detail], {o) 117. Order, where Defendant has Departed or Conceals Himself. \As in Form 114, to the *] ; that a cause of action exists against the defendant Y. Z., in favor of the above-named plain- tiff ; but that the said defendant cannot after due diligence be found within this State, he having departed therefrom \or, he keeping himself concealed within this State], with intent to defraud his creditors \or, with intent to avoid the service of summons, or both], and that the defendant's residence is at (to) For this purpose it is held that quired that the affidavit should shove the affidavit must shove that the defen- that a summons was out against him iant had property of some kind ; and when he left ; or one was about to be that he had made, or was about to issued agaipst him ; or that he was make, a fraudulent or illegal disposi- threatened with, or feared, or expected tion of it ; or that he unjustly refused a suit. Ih. to apply it to the payment of his debts ; («) Openly avoiding service, by elud- or had secreted or removed, or was ing the approach of the officer, is not about to secrete or remove it ; or had keeping concealed, within section 135 fraudulently incumbered it. Towsley of the Code. Van Rensselaer u. Dun- 's. McDonald, 32 Barh., 604. bar, 4 Em. Pr., 151. Where he is charged with intent to [o) See notes (d), {k\ and (m), supra, avoid service of summons, it is also re- as to what should be alleged, 90 ABBOTTS' FOEMS. Orders for PuWication of Summons. [or, is unknown, and cannot with due diligence be ascertained] ; f on motion of Q. E.., plaintiff's counsel, Oedeekd, that the summons herein, a copy whereof is hereto annexed, be served by publication of the same in two news- papers as follows : in the , published in , and in the , published in , once in each week for six weeks § [and where the residence is Jcnown, add'],{p) and that^a copy of the summons and complaint be forthwith deposited in the post-ofBce, directed to said defendant at his said place of residence, {q) and the postage paid. 118. Ajfidavit, where Defendant is a Non-resident. \As in Form 113, to the *.] II. That the defendant is not a resident of this State, (t^) but resides in the city of , in the State of , as deponent is informed by O. P., the agent and business corre- spondent in this city (s) of said defendant ; and that said defend- ant cannot after due diligence be found within this State, he now being at \pr otherwise state grounds of Mief\ {t) (p) It is held essential to the validity State. Section 135 of the Code does of an order for publication of a sum- hot authorize an order for publication mens, under subdiv. 3 of section 135 of against a defendant who cannot be the Code,— which presupposes that the found, or whose last-known place of debtor is a resident of the State, but residence was within this State, but lias departed therefrom or keeps him- whose residence cannot at the time be self concealed therein, — that it direct a ascertained, and who is not concealing copy to be deposited in the post-office, himself with a fraudulent intent. Close directed to the defendant "at his place i).Van Heusen, 6 Sow. Pr., 157. Un- of residence, though it appear from the der such circumstances the proceeding affidavit that he has departed there- may be by petition nnder the Revised from. Towsley ij, McDonald, 83 Barb., Statutes, as amended by the Laws 604. of 1843, 363, ch. 377. See Form. 136, (g) The place of residence should be infra. named. Hyatt v. Wagenright, 18 Eoio. (s) As to making the affidavit on Pr., 348. As to the meaning of this information and belief, see Van Wyck phrase, "at his place of residence," see ti. Hardy, 11 Abbotts' Pr., 473; S. C, Oothout V. Rhinelander, 10 Id., 460; 20 Sow. Pr., 222. Rowell V. McCormick, 5 Id., 337. Com- (f) The residence of the defendants pare Lord i}. Vandenburgh, 15 Id., 363. against whom service by publication (r) It is not enough merely that the is sought to be made, must be designat- defendant cannot be found within the ed, or diligent and unsuccessful ingiiiry COMMENCEMENT OF ACTION. 91 Publication of Summons against Non-resident. m. That the said defendant has property in tliis State {u) as this deponent is informed and believes, to wit : a farm in , occupied by one M. N., who has informed this deponent that he paid rent therefor to the said Y. Z., who was the owner.; and the said defendant has recently purchased goods in the city of , as this deponent is informed by said M. N., wliich goods are in the hands of one E. F.,. as the agent of the said defendant, and said E. F. is engaged in selling the same as tlie property of the said defendant, (v) 119. Order for Publication, where Defendant is a jVon- resident. \^As in Form 114, to the *, and continue'] a canse of ac- tion exists against the defendant T. Z., in favor of the above- named plaintiff, and that the defendant is not a resident of rliis State, but resides in , in the State of {or, as to such residence must be stated. Cook V. Farmer, 34 Barb., 95 ; S. C, 12 Alhott^ Pi:, 359 ; 31 Sow Pr., 286 ; affirming S. C, 11 Abbotts' Pr., 40; Hyatt v. Wagenrigbt, 18 Sow. Pr., 248. It may be stated tbus: — That his residence is not known to tlie plaintiflf, nor can it Tvith reasonable diligence be ascertained by him ; tliat for the pur- pose of ascertaining it he has inquired of M. N., the brother of the defendant, and as deponent is informed and be- lieves his only relative residing in this State, vrho informs him that he is ignorant of the defendant's residence ; but that he is not, as said M. N. be- lieves, a resident of this State, and that his last-known place of residence was at (u) The Code gives the court no ju- risdiction to order service of summons on a non-resident defendant by publica- tion, unless he has property within the S'tate when the order is made. Fiske V. Anderson, 33 Barb., 71 ; S. C, 12 Abbotts' Pr., 8. (■!)) If the affidavit states the fact of defendant's property on information and belief, it must set forth the sources of information and grounds of belief. See Evertson v. Thomas, 5 How. Pr., 45. Where plaintiff procured an order for publication of summons on an affi- davit that defendant had property with- in this State, and it appeared, on motion to vacate the judgment, that such prop- erty consisted only of a team driven temporarily within the State with the purpose of returning forthwith, — Held, that the order for publication was ir- regular, and that plaintiff's proceed ings must be set aside. Haight v. Husted, 5 Abbotts' Pr., 170. A debt which is due from a debtor who is not within this State to a creditor also not within this State is not liable to attachment here, al- though the evidence of that debt, e. g., the bond, note, &c., may be within the State. Bates v. New Orleans. &c., E. B. Co., 4 Abbotts' Pr., 72. And such bonds it would seem are property within the moaning of this section. 92 ABBOTTS' FOEMS. Affidavit for Publication against Absentees. and that his residence is not known and cannot with due dili- gence be ascertained], and that defendant cannot after due diligence be found within this State, but that he has property within this State [continue as in Form Wl^from the f]. 120, Affidavit, where an Absent Defendant is a Prober Party to an Action respecting Specific Property. [Title of the cause.] [ Venue.] A. B., plaintiff above named, being duly sworn says: I. That this action is brought to foreclose a mortgage made on the day of , by the above-named de- fendant W. X., to this plaiiltiif to secure his bond of even date, conditioned for the payment of dollars, on certain real property in this State, consisting of a farm of about twenty acres, more or less, in the town of Kye, Westchester county. That the defendant Y. Z. has, or claims to have, some lien on or interest in said farm which accrued subsequent to said mort- gage, and that a part of the relief which this plaintiff demands in this a.ction is to exclude said defendant from any lien or interest in said property, and that said defendant Y. Z. is there- fore, as he is advised, a proper party to this action, (w) II. That said Y. Z. cannot after due diligence be found with- in this State. [Here allege what efforts have ieen made to fmd him, and, if he is a non-resident, state that fact. See other forrrbS.] {x) (w) As tlie complaint has to be filed {x) As to publication in case of un- t the tiiae the order of publication is known parties in foreclosure, see the act obtained, it is well to annex the com- of 1860, 209, ch. 131, adding a provision plaint, file it vrith the affidavit and on this subject to section 135 of the order, which for that reason it is better Code. to obtain at special term, and refer to As to proceeding against unknown it either in the affidavit or order, or owners in partition, see Allen v. Allen, both. 11 How. Pr., 277. COMMENCEMENT OP ACTION. 93 Publication of Summons. 121. Order, where the Action relates to Specific Property. {As in Foi-m 114, to the *, and continue] that the defend- ant T. Z. cannot after due diligence he found within this State, and that he resides at ' , in the State of [or, that his residence is not known, and cannot with reasonable diligence be ascertained by the plaintiff], that he is a proper party to this action, which relates to real (y) property within this State, in which real property the said defendant Y. Z. has [or, claims] an interest [or, lien], and that the relief demanded by the plaintiff consists partly in excluding the said defendant from any lien on [or, interest in] said property. [Continue as in J^arm 111, from the f.J .122. Affidavit, where the Action is for Divorce. [Title of the cause.] [ Yenue.] A. B., plaintiff above named, being duly sworn says; I. That this action is brought for divorce in one of the cases prescribed by law, and that a cause of action therefor exists in her favor against the defendant above named, the grounds of which appear by the sworn complaint in this action hereto an- nexed, the statements contained in which are true [or, the grounds of which are as follows : here state grounds of action showing that the case is within the statute of divorces]. II. That the defendant cannot be found within this St.ite, al- though diligent effort to find him and serve upon him tiie sum- mons herein has been made. [State what iffort, and, if he is a resident of another State, allege such residence.] III. [State his residence, if not hefore stated, or plaintijfs ignorance of it, as in Form 118.] (2/) If the action relates to personal pears tliat a, cause of action exists jjroperty, substitute "personal" for against the defendant, as in Form 114, 'real," and insert a recital that it ap- supra 91 ABBOTTS' FORMS. Order in Divorce Case. In Partition. 123. Order, where the Action is for Divorcti. \As in Form 114, to the *, and continue\ that this action is brought for a divorce in one ,of the cases prescribed by ]?,vv, and tliat tiie defendant cannot be found within this State after due diligence, and that he resides at , in the State of [or, that his residence is not known, and cannot witli reasonable diligence be ascertained by the plaintiftH. [Continue, as in Form 117, from the f.] 124. Affidavit in Case of Unhnown Owners, (c) \ Title of the cause.] \ [ Venue.'] A. B., the plaintiff in the above-entitled action, being duly sworn says, that this action is brought for the partition of cer- tain real property situated in the State of , in the county of , in which county the place of trial is laid, and of which real estate the plaintiff and defendant (except the defendant M. N., who has only a life-estate in an- uudivided part thereof), are seized in fee simple as tenants in common. * That U. v., who was also a tenant in common, died, as this deponent is informed and believes, in the year 18 . That the names and residences of his widow and heirs-at-law are un- known to the plaintiff, and cannot, although he has made dili- gent inquiries for tliat purpose [state what], be ascertained. That their interest in the premises is an undivided part, being the share to which the defendant U. V. if living would have been entitled. {z) Before the act of 1860 (784, cli. possible in accordance with the other 459, §4), — wliicli added a provision for provisions of the law. Allen «. Allen, serving unknown owners in foreclosure 11 How. Pr., 277. by publication, — ^it was held that such The above form may easily be adapt parties in partition might be served in ed to the case of an action for foreclo. that way by proceeding as nearly as sure. COMMENCEMENT OF ACTION. 05 Publication of Summons against Unknown Parties. 125. Order, in Case of Unknown Owners. \As in Form 11-i, to the *, and contin\ie\, that this action is brought for the partition of real estate, situate in And that there are certain persons, to wit, the widow and heirs-at-law of IT. Y., deceased, who have an interest as tenants in common in said premises, and whose names and residences are unknown, and cannot with diligence be ascertained ; on motion of Q. R., plaintiff's counsel, Oedered, that the summons herein, a copy whereof is hereto annexed, be served on such unknown owners by publication for six weeks, once in each week successively, in the State paper, to wit, the , published at Albany, (a) and also in the , a newspaper printed in the county of \tJiat in which the land lies']. 126. Application for Order for Appearance of a Resident whose Place of Residence cannoLie ascertained, {h) [As in Form 124, to the *.] That the last-known place of residence of "W. X., one of the above-named defendants, was within this State, to wit, at ; but that he removed thence on or about , and his residence at this time cannot, on due inquiry, be ascer- tained by the plaintiff or liis attorney, although they have dili- gently made such inquiry \_here state hriefiy what inquiry has heen made, e. g., as follows : although they have made inqui- ries of liis former neighbors and acquaintances at , his last-known place of residence, and of his father, who resides at , and his brother, who resides at ]. {Jurat?[ [Signature.] 127. Order for Publication in the Same Case. [As in Form 114, to the *.] Tliat the last-known place of residence of the defendant T. Z. was in this State ; but that his residence at this time cannot, on (a) Lawsofl%U, ch. 197. provide for. Laws of 1843, 303, cli (6) This form is only to be used 277; Closer. Van Husen, 6 How. Pr. In cases which, the Code does not 157. 96 ABBOTTS' FOBMS. Service of Summons. due inquiry, be ascertained; on motion of Q. R., counsel for the plaintiff, Oedeeed [continue as in Form 118, from the \ to the §, di- recting the publication, however, to he for three months], (c) n. Substituted Seevioe, undee the Act of 1853. {d) 128. Official Return, or Affidavit, of Indbiluy to make Personal Service. [Title, i&c, unless this he a return in- dorsed on the process, {e) in which case no title is necessary.'] [ Venue.] A. B., sheriff of [or, deputy of the sheriff of , or, a constable of the town of J, being duly sworn says [or, hereby returns] : T. That Y. Z., the defendant [or, one of the defendants] in this action, resides (f) in this State, to wit, at , where his family now are [or, state other fact showing that he has a residence there]. II. That the deponent [or, if it he a return, the undersigned] has made proper and diligent effort to serve the process [or, paper] annexed, upon said Y. Z., by [here set forth effort] ; but said Y. Z. cannot be found either in or out of the State, {g) nor (c) The publication of the order . of the United States, except in par- should be in two newspapers, to be tition cases, and in cases where no per designated, as most likely to give no- sonal claim is made. Laws of 1863, tice to the persons to be served, and for 388, ch. 213. a period of three months. (Compare («) The proof should be by affidavit. Code, 55 135, with Laws of 1842, 363, unless the paper to be served is pro- ch. 277, § 2, subd. 2.) Close v. Tan cess which it was the duty of the offi- Husen, 6 How. Pr., 157. cer to serve and return. (d) The act of 1833 {Laws of 1858, (/) See Collins i). Ryan, 32 Barb., 647. 974, ch. 511) empowers any court, any {g) To authorize service in this mode iudge of the Supreme Court, and any it must appear that the defendant is a county judge, to authorize any process resident of this State, but that he can- o.- paper to be served on a defendant not be found, eitJier in- or out of the who is a resident of the State, and who State, or that he evades service. If de- annot be found or evades service, by fendant is abroad from the State, in a leaving a copy at his residence and known place, he cannot be served thus, mailing a copy to him. This act is CoUins v. Campfield, 9 How. Pr., 519 ; not applicable to a defendant who is Jones n. Derby, 1 Abbotts' Pr., 458; absent in the military or naval service Foot v. Harris, 2 Ld., 454. COMMENCEMENT OF ACTION. 9t Application for Order for Substituted Service. can the deponent [or, undersigned] ascertain when lie will be at home, although he has made diligent inquiry of [or, but saidT. Z. avoids such service by keeping himself concealed ; or, other mode of evading service, stating concisely the circum,- stanoes, so that the fact may " satisfactorily ajypear"] ; so that the said process [or, paper] cannot be served personally, by proper diligence and effort. [Signature.'] [Jurat, if it he an affidavit.] 129. Affidavit that the Defendant is not a Soldier, &c. [Title of the cause, Venue, and Commencement^ That he is acquainted with T. Z. the defendant in this action, referred to in the annexed affidavit [or, return] as being not found [or, avoiding service], and that said defendant is not an officer, soldier, or musician, actually absent from his place of residence, and actually engaged in the army or military service of the United States, nor a sailor or marine actually absent from his place of residence and actually engaged in the naval service of the United States, but that he is [here state what is known of his occupation, to substantiate the denial that he is a soldier, c^c.] [Signature.] [Jurat.] 130. Affidavit to the Nature of the Action. [Title and Venue.] A. B., the plaintiff's attorney in this action being duly sworn says, that this action is brought for partition of real estate, to wit [here designate the property], as appears by the complaint on file. Or, where no personal claim is made against the defendant in question, says that this action is brought for the foreclosure of a mortgage upon lands [or- other object], and that no personal claim is made in this action against Y. Z., the defendant men- tioned in the foregoing affidavit [or, return], as being not found [or, as avoiding service], as appears by the complaint on file. [Jurat.] [Signature.] 98 ABBOTTS' FORMS. Service of Summons. 131. Order for Svhstituted Service. [Title of the cause.] [May le made and entitled at special term, if preferred.'] (A) It satisfactorily appearing by an affidavit [or, return] of M. E"., the sherifl' [or, a deputy of the sheriff] of the county of [or, constable of the town of J, that the summons [or, other paper] in this action, a copy of which is hereunto annexed, has been delivered to said M. N., to be served, and that the defendant T. ,Z., named therein, is a resident of , in said county [or, of said town] ; that said M. ]Sr. has made proper and diligent effort to serve the same personall}- upon him, and that such defendant cannot be found, either within or without this State [or, that such defend- ant avoids, or, evades, such service], so that the same cannot be personally served ; and it further being shown to my satis- faction [or, to the satisfaction of the court] by the affidavit of , annexed, that Y. Z. is not an officer, soldier, or musician actually absent from his place of residence, and actu- ally engaged in the army or military service of the United States, nor a sailor or marine actually absent from his place of residence, and actually engaged in the naval service of the United States ; Or, and it further being shown to my satisfaction [or, to, the satisfaction of the court], that the action is one for the partition of real estate [or, that no personal claim is made against said T.Z.]; On motion of Q. R., counsel for the plaintiff, Oedkekd, that the service of the said summons [or, other paper] be made by leaving a copy thereof at the residence of said defendant, in the town of , with some person of proper age, if admittance can be obtained, and such proper person found, who will receive the same, and if admittance can- not be obtained, or any such proper person found who will receive the same, then that the said service be made by affixing the same to the outer or other door of said residence, and by (A) Where summons is served in tMs filed, wlietlier the order is made in mode, the, affidavit and order must he court or not. Rule 4. (JOMIMENCEMENT OF ACTION. 99 Proof of Service of Summons. putting another copy thereof, properly folded or enveloped, and directed to the person to be served, at his said place of residence, into the post-office in the said town [or, city] where he resides, and paying the postage thereon, {i) \Signature.] \_Date, if made at chambers.^ Section III. PROOF OF SEEVICE OF SUMMONS, (a) I. Peesonai service. 133. Sheriff's certificate .' p. 100 133. Affidavit of service 101 134. Tlie same, on a corporation 102 185. The same, on a minor or lunatic 1 03 U Service by publication, etc. 136. Printer's affidavit 104 137. Affidavit of mailing 105 138. Affidavit of substituted service (Act of 1853) 106 139. The same, where admittance could not be obtained 106 III. Proof by written admission. 140. Admission of service 107 141. Proof of signature 107 143. Another form, by acknowledgment 107 (i) The words of the statute in respect served, the court have no jurisdic- to the mode of service, should be tion of the defendant, and proceedings strictly pursued by the order. Foot v. based on the pretended service are Harris, 3 Abbotts Pr., 454. void. Bulkley v. Bulkley, 6 Abbotts' {a) Service of summons upon an Pr., 307. elector on an election day is void. A resident of another State coming Meeks v. Noxon, 1 Abbotts' Pr., 380. voluntarily into this State in good And a judgment by default based on faith, for the sole purpose of being such a service, is irregular. Bierce ■». examined as a witness in an action to Smith, 2 Id., 411 ; and see Hastings ». be tried in one of our courts, is exempt Farmer, 4 iV^. T. (4 Comst.), 293. So from the service of summons ; and if service of a summons on Sunday is one be served under such clrcum- void. Field v. Park, 20 Johns., 140. stances, or if a party be induced to As to service on Saturday upon persons come within jurisdiction by fraud for who observe that day as a holy day, the purpose of serving him, the service see Laws of 1847, 451, ch. 349; Marks will be set aside. Seaver d. Robinson, V. Wilson, 11 Abbotts' Pr., 87. 3 Diier, 633 ; Carpenter v. Spooner, 3 When the summons is not legally Sandf., 717. 100 ABBOTTS' FORMS. Proof of Service of Summons. I. Peesonal Service. 132. Sheriff's OeTtificate of Service on the Defendant Person- ally. (5) \_Title of the cause.'] (c) [ Venue.] I hereby certify that on the day of j 18 ? (<^ at , {e) I served on T. Z. [one of the defendants], above named, (_/) the [within] summons [g] [and complaint] in this action, by delivering a copy (A) thereof to him per- sonally, (») and leaving (_/) the same with him. [Date.] _ V [Signature.] (J) An affidavit of se] elusive on tlie adver( Rensselaer v. Chadwi 297 ; Wallis v. Lott, 1. a sheriff's certificate is in the same proceeding. Ins. Co. D. Force, 8 Id., 35! (It Sive umbia But com- pare Campbell ii. Self, 2 Id., 25, where it was allowed to be contradicted. A sheriff's certificate of service of sum- mons and complaint does not lose its force by lapse of time, or by being used upon the entry of a judgment which is afterwards vacated. It may still be used on a second application for judgment. Brien v. Casey, 2 Abbotts' Pr., 416. (c) Where the proof of service is the sheriff's certificate, he should state or refer to the name of the cause, and show that the summons served by him was in that cause. . Litchfield «. Bur- well, 5 Emo. Pr., 341. {d) The certificate or affidavit should state the time and place of service with sufficient particularity to enable the party served to meet and disprove the allegation. See Code, § 138, subd. 4, last clause. («) The service of the summons must, except in the cases provided for in sec- tion 135, be within the territorial juris- diction of th 18 , before me ap- peared , to nie personally known to be the defendant described in, and who executed the foregoing admission, and acknowledged that he executed the same. [Signature of officer.] (s) An admission of service must te be genuine. Litchfield «.Burwell, 5 fioic. in writing, and subscribed. Mont- Pr., 341 ; S. C, 9 N. T. Leg. Obs., 183 ; gomery v. tutt, 11 Oal, 307. Alderson v. Bell, 9 Oal., 815. But the (a) The admission of service need not want of an affidavit verifying an ad- .designate the place. where the service mission of service, must be objected to was made. Alderson v. Bell, 9 Gal., 315. promptly ; and the defect may be cured (6) If an admission of service is made after judgment, by amendment, .lones by a party who is not an officer of the v. United States Slate Co., 16 Sow. court, the signature must be proved to Pr., 129 108 ABBOTTS' POBMS. Appearance. Section IV. APPEAEANCE. (a) 143. General appearance, in person p. 108 144. General appearance, by attorney 108 145. General appearance and demand of copy-complaint 108 146. Appearance for special purpose 109 143. General Abearance, in Person. {Title of the cause.] To M. N., plaintiff's attorney. Sir : Please take notice that I appear in this action. Y. Z., defendant in person, No. street, City of 144. General Appearance, hy Attorney. {Title of the cause.] To M. N., plaintiff's attorney. Sir: Please take notice that I am retained by and appear for (5) the defendant [or, defendants ; or, if not retained ly all the defendants, the defendants U. V. and W. X.] in this action. O. P., defendant's attorney {or, attorney for defendants U. V. and W. X.], ]S"o. street, City of 145. General Appearance and Demand of Copy-complaint. Title of the cause.] To M. N"., plaintiff's attorney. Sir : Please take notice that I am retained by and appear for the defendant [W. X.] in this action ; and demand that a (a) As to appearance where several delaer ®. Coomer, 6 Johns., 328 ; Van- executors or administrators are sued, derpool v. Wright, 1 Cow., 309 ; and see 2 Ben. Stat., 448, § 5 ; and Salters the Code requires a notice of appear- ». Pruyn, 15 Abbotts' Pr., 224. ance. But Rule 11 provides that ser- (6) It was well settled before the vice of a notice of appearance or retain- Code, that a notice of retainer was not er, generally, shall be deemed an aj)- equi^alent to an appearance, DeWan- pearance. COMMENCEMENT OP ACTION. 109 Special Appearance. copy of the complaint (c) be served on ine at my office, No. street, in the city of O. P., attorney for the defendant "W. X. [Address.] 146. Appearance for Special Purpose. [Title of the caxise.] To M. ]Sr., plaintiff's attorney. Sir: Please take notice that I am retained by and appear for the defendant W. X. in this action, for the purpose of mov- ing to vacate the attachment issned therein [or, for the purpose of moving to set aside the complaint therein, or, other special purpose}. O. P., attorney for defendant W. X. for the purpose aforesaid. [Address.] (c) A notice of appearance in the ac- cient demand of service of a copy of tion, stating that " I require all papers the complaint. Walsh v. Kursheedt, 8 therein to be served on me," — specify- Abbotts' Pr., 418 ; Ferris «. Soley, 33 ing a place for the service, — is a suffi- How. Pr., 433. 110 ABBOTTS' FORMS. Analyas of Chapter. CHAPTER YII. FORMAL PARTS OF PLEADINGS. [For brevity, and for the convenience of the reader, those parts of plead- ings which, though equally essential, are of a more formal nature than the statement of the cause of action or the character of the parties, are here presented by themselves, so that in the subsequent chapters, of Complaints, Answers, &o., it may suffice to give the allegations of fact constituting a cause of action, or a defence, without making any reference to the title, the commencement, or the conclusion of the pleading. Pleadings exceeding two folios in length must have the folios marked, (a) Copies of pleadings served on the adverse party should be perfect copies, including signature of counsel, the jurat, &c. : and the party has a right to presume that they are so, and proceed accordingly.] (i) > I. Formal pakts of the complaint. 147. Common form p. Ill 148. The same, setting forth several causes of action 114 149. Against one defendant severally liable, where the action is severed 114 150. Where judgment by default has been had against a defendant . 115 151. In an action removed from a justice's court, on a plea of title to land 115 n. POBMAL PABTS OF AN ANSWBK. 152. Common form, by a sole defendant . , 115 153. Commencement of answer by a defendant sued by a wrong name 116 154. The same, by an infant 116 155. The same, by a lunatic, &c 116 156. The same, by husband and wife, jointly 117 157. Title and commencement, by one defendant answering sepa- rately 117 158. Answer containing several defences 117 III. Reply ; and Dbmubebr. 159. Reply setting up several defences to several counter-claims 118 160. Demurrer to complaint 118 rv. Amendment. 161. Amended complaint 119 I (a) See page 1, ante. A pleading not kpr, 9 Id., 343 ; but see Blanchard ii. folioed may be returned as irregular. Strait, 8 Id., 83. Sawyer v. Schoonmaker, 8 Sow. Pr., (b) Littlejohn «. Munn, 3 Paige, 280. 198. It should not be set aside, on To same effect, Lansing v. Pine, 4 Id., motion, for that defect. Strauss v. Par- 639. FORMAL PARTS OP PLEADINGS. Ill Common Form of Complaint. I. FOEMAL PaETS of THE CoMPLAINT. 14:7. Common Form. Supreme Court, (c) [City and] County of {Names of all the plaintifs], (e) plaintiffs, against [Nam^s of all the defendants], (f) defendants. ,{d) (c) If the suit is brought in a local court, give the full title of the court, — e. g., " The City Court of Brooklyn." Where the summons and complaint axe served together, and the name of the court appears in the summons, its omission from the complaint may be disregarded as a technical irregularity, which cannot injure the defendant. Van Namee ■». Peoble, 9 How. Pr., 198 ; Van Benthuysen v. Stevens, 14 Id., 70. At common law it was held that the title of the court should appear in a declaration ; but an omission was amen- dable. Teal V. Tinney, 3 Id., 94. (d) In au action in the Supreme Court the complaint is irregular, unless it states the place of trial. WiUiams v. Wilkinson, 1 Code B., N. S., 20 ; Hall «. Huntley, Id., 31, note. The omission to state it is held not a mere irregulari- ty. It is not waived by obtaining time to answer, nor can it be cured by ref- erence to the summons. The complaint, in such case, must be amended, or stricken out as irregular. Merrill v. Grinnell, 10 Eoio. Pr., 31 ; Hotchkiss ii. Crocker, lo Id., 336. Naming the county in the title of the cause, as above, is a sufficient designa- tion of the name of the county in which plaintiff desires the trial to be had. WiUiams on PI, 97 ; Swan's PI., 141 ; Tappan ».■ Powers, % Hall, 277; Slate e. Post, 9 Johns., 81 ; Barnes, 483 ; 3 T. B., 387 ; TiM's Pr., 433 ; 1 Chit. PI., 249 ; and see Davison v. Powell, 13 Eow. Pr., 387. («) The caption should contain the names of all the parties, plaintiffs and defendants {Code, § 143 1 ; but see note (/)) infra. If they sue, or are sought to be charged in an official capacity, it is usual and proper that their char- acter should be indicated here. See HiU -!). Thacter, 3 Code B., 3 ; S. C, How. Pr., 407. This does not, how- ever, take the place of the averments necessary in the body of the complaint, to show the official character. See Chapter IX., Section I., of Avekments OF Opficial Chakactbr and Capaci- ty, where this subject is treated. (/) It was the rule in Cliancery that a bill must state clearly the persons who are made defendants ; either by praying process against them, or by a distinct allegation designating the per- sons impleaded as" defendants. Elmen- dorf V. Delanoey, Hopk., 505 ; S. P., Verplanck v. Mercantile Ins. Co., 3 Paige, 438. In an action under the Code, corresponding to the non-bailable actions of the former practice, if several defendants are joined in the summons, but only one served, the complaint may be against the latter only, omit- ting the names of the others. Travis «. Tobias, 7 Eow. Pr., 90. See Form 119, i bfru. A defendant should not hn 112 ABBOTTS' FORMS. Common Form of Complaint. The plaintiff above named, complaining of the defendant, {g) alleges : \_Here set forth the cause of action.'] (A) "Wherefore the plaintiff [or, plaintiffs] demands judgment (^) sued- by a fictitious name, unless tlie plaintiff is ignorant of Ws true name. Crandall v. Beach, 7 mw. Pr., 271. In sucli case, the plaintiff's ignorance must be alleged, or the misnomer ■will be a ground for vacating his proceed- ings. Elliott «. Hart, Id., 25 ; Water- bury 1). Mather, 16 Wend., 611. (g) It is suSBcient, when parties have been once named in the pleading, to describe them afterwards by the terms '' said plaintiff" and " said defendant." Davidson v. Savage, 6 Taunt., 131 ; S. C, 1 Bng. Com. L. S., 537 ; Steven- son D. Hunter, 6 Tawit., 406 ; S. C, 1 Bng. Com. L. B,., 675. And this rule ap- plies equally where the plaintiff sues in a special character, beginning his plead- ing by showing his character. Stanley B. Chappell, 8 Cow., 235 ; Ketchum v. Morrell, 3 N. T. Leg. Obs., 58 ; but com- pare Christopher v. Stockholm, 5 Wend., 36. (A) If the pleading is to be verified, such of its allegations as are made not from knowledge but upon information, should be distinguished by the phrase, "alleges upon information and be- lief" The authorities are conflicting on this point, but this we deem the more reasonable, and the usual practice. Compare Howell v. Fraser, 6 Sow. Pr., 221 ; Bement v. Wisner, 1 Code B., JT. 8., 143; Fry v. Bennett, 5 Sandf., 54; S.C, 9 JSr. Y. Leg. Obs., 330; 1 Code P., N. 8., 288 ; Radway «. Mather, 5 Bandf., 654 ; Borrowe v. Milbank, 5 Abbott!^ Pr., 28 ; Ricketts i>. Green, 6 Id., 83 ; N".- Y. Marbled Iron Works v Smith, 4 Duer, 362 ; Truscott v. Dole, 7 How. Pr., 221 ; linnerty v. Barker^ 7 iV. T. Leg. Obs., 316 ; St. John v. Beers, 24 How. Pr., 377 ; Woodruffs. Fisher, 17 Barb., 234 ; Grim «. Wheeler, 3 Edw., 334 ; Norton v. Woods, 5 Paige, 260 : Equity Bule 4 o/ 1847. Where the pleading is wholly on information, it will be sufficient to indicate it in the preceding line, once for all. In Chancery, where a biU was to be verified by an agent or attorney, it was required to be drawn in the same man- ner as biUs sworn to by the complain- ant himself; stating those matters which were within the personal knowl- edge of such agent or attorney posi- tively ; and those which he had derived from the information of others being stated or charged upon the information and belief of the complainant. Bank of Orleans v. Skinner, 9 Paige, 305. {i) A complaint setting out the cause of action, and adding, " to the damage of the plaintiffs, $3,000, and thereof they bring suit," is good, without any more specific prayer for relief Tuo- lumne, &c., Co. V. Columbia, &c., Co., 10 Col., 193. The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have, demand- ed in his complaint. Code of Pro., § 275. It is not enough that he has stated in the complaint facts entitling him to the relief Simonson v. Blake, 12 Abbotts' Pr., 331 ; S. C, 20 How. Pr., 484 ; Hurd u. Leavenworth, 1 Code B., N. 8., 278. And tlus rule is applied on demurrer. Walton i>. Walton, 32 Barb., 203 ; S. C, 20 How. Pr., 347 ; subno^n. Anonymous, 11 Abbotts' Pr., 231. But where there is an answer, the demand for relief becomes immaterial, and tlie court may grant him any relief consist- ent with the case made by the com plaint, and embraced within the issue. Code of Pro., §275 ; Van Dyke v. Jack- son, 1 E. B. 8mith, 419 ; Jones v. But FORMAL PARTS OP PLEADINGS. 113 Ordinary Complaint. against the defendant [or, defendants] for the sum of {j) dollars and cents, together with interest tliereon (k) from the day of > 18 , [^/', when the action is for the recovery of sums which hecame pay- able at different times, say, with interest on dollars thereof, from the day of j 18 , and with interest on dollars thereof, from the day of ], together with the costs of this action. (Z) [Signature.] (vi) [ Verification. See Chapter VIII., infra.] ler, 30 Sarb., G41 ; S. C, 20 Row. Pr., 189 ; Emery ■d. Pease, 20 J!f. Y., 62 ; Marquat v. Marquat, 12 if. T. {2 Kern.), 336 ; reversing S. C, 7 How. Pr., 417. In general a demand for judgment in tlie alternative is improper. Maxwell u. Farnam, 7 Hino. Pr., 236 ; Durant v. Gardner, 10 Abbotts' Pr., 445 ; S. C, 19 Sow. Pr., 94 ; and compare Warwick V. Mayor, &c., of N. T., 28 Barb., 210 ; S. C, 7 Abbotts' Pr., 265 ; People v. Mayor, &c., of N. Y., 28 Barb., 240 ; S. C, S Abbotts' Pr., 7. Bat in actions for equitable relief, it is held that the com- plaint may be framed with a, double aspect, when there is doubt as to the particular relief to which the plaintifF is entitled. Young v. Edwards, 11 How. Pr., 201. A dem.and for general relief is inconsistent with a demand for judgment in a specified sum in an ac- tion for a money-demand on contract. Durant v. Gardner, 10 Abbotts' Pr., 445 ; S. C, 19 Sow. Pr., 94. (j) If the recovery of money is de- manded, the amount must be stated. Code of Pro., § 142, subd. 3. When- ever damages are recoverable, the plaintiflf may claim and recover, if he shows himself entitled thereto, any rate of damages which he might have here- tofore recovered for the same cause of action. Id., § 276. Damages not the immediate and natural consequences of an unlawful act, or which the law would not presume necessarily to flow from it, Vol. L— 8 must be specially stated. Such aver- ments are not traversable, but they are necessary in the complaint, that the de- fendant may not be taken by surprise. Thej', therefore, are not to be struck out, on motion, as irrelevant. Molony ■B. Dows, 15 HoiD. Pr., 361. Matters merely in aggravation of damages are not pleadable, and may be struck out. lb. For demand for special relief, sea the forms of complaints, infra. '{k) The amount of interest need not be stated. Spurrier ». Briggs, 17 Ind. {Harr.), 529. When the action is for un- liquidated damages, omit the demand for interest. (l) It is usual to insert here a de- mand for costs ; but we consider it un- necessary, for the costs form no part of the relief to which the cause of action entitles the plaiutiflF. They are simply an incident to his recovery, which the statute awards to him, of course, as the successful party. It is not necessary that the complaint should be dated, or show the time of the commencement of the action. May- nard v. Talcott, 11 Barb., 569. (m) Every pleading in a court of record must be subscribed by the party, or his attorney. Code of Pro., § 156. It has been held that the signature of the party or attorney to the verification was a sufficient subscription of a plead- ing. Hubbell v. Livingston, 1 Code R., 63. In an action by an infant who ap. lU ABBOTTS' FORMS. Complaint. 148. The Same, setting forth Several Causes of Action. _ The plaintifl' above named, complaining of the defendant, alleges : First: For a first cause of action, («) I. That, &c., &c. Second: (o) And for a second cause of action, I. That, &c., &c. 149. Against one Defendant Severally Liable, {p) where the Action is Severed. The plaintitf, suggesting to the court that the summons in this action has not been served on the defendant "W". X. named therein, complains against the defendant Y. Z., and alleges: pears by guardian, Ms summons and complaint are regular if signed by tlie attorney instead of liis guardian. Hill ■V. Tliacter, 3 Sow. Pr., 407 ; S. C, 3 Code R., 13. He may sign as " attorney for the plaintiff." 2 BurrilVs Pr., 80. (n) Unless a complaint whicli seeks to recover upon two causes of action shows how much is due upon each, it will be ordered to be made more defi- nite and certain. Clark o. Farley, 8 Duer, 645 ; Buckingham v. Waters, 14 Cal., 146. But the omission to aver damages in the complaint, is waived by going to trial without objection. Neary «. Bostwick, 2 Milt., 514. (o) Separate causes of action must be separately stated. The causes of action required to be separately stated are such as, by law, entitle the plaintiff to separate actions. Sturges v. Burton, 8 Ohio (St.), 315. See, also. Form 203, 7iot6. And the statement of a separate cause of action, or defence, should begin with appropriate words to designate it as such. Benedict v. Sey- mour, 6 How. Pr., 398 ; Lippencott V. Goodwin, 8 Id., 343. They must each be plainly numbered. Sule 19. As to the remedy for a defect in these respects, compare Blanchard v. Strait, 8 Sow. Pr., 83 ; Wood «. Anthony, 9 Id., 78. Each statement must be com- plete, either by containing all neces- sary allegations, or by expressly refer- ring for some of them to other parts of the pleading. The plaintiff cannot avail himself of an allegation in the statement of one cause of action, not thus referred to, so as to sustain a de- fect in the statement of another cause of action. Sinclair i}. Fitch, 3 K D, Smith, 677 ; Landau i). Levy, 1 Abbotts' Pr., 376; S. P., Loosey «. Orser, 4 Bosw., 391 ; Ritchie ii. Garrison, 10 Abbotts' Pr., 34G. As to alleging sev- eral breaches of one contract, sep Rowland «. Phalen, 1 Bosw., 43. It was the rule at common law, that the plaintiff might refer in one count to preceding parts of the declaration, and so support it. Freeland i). McCuUough, 1 Ben., 414; Crookshank «. Gray, 20 Johns., 344 ; Griswold i). National Ins. Co., 3 Cow., 96 ; Loomis v. Swick, 3 Wend., 305 ; and see, as to money counts. Porter v. Cummings, 7 Id , 172. ip) Where the liability is a joint in debtedness upon contract the judgment win be joint ; and In such case the practice is to entitle the complaint against all, as if all were served. FORMAL PAETS OF PLEADINGS. 115 Commencement of Complaints. 150. Where Judgment iy Default has heen had against a De- fendant, (q) The plaintiff, suggesting to the court that the summons in this action has been served on the defendant, W. X., but that he has not appeared, and that by reason thereof judgment has been taken against him, in respect of the premises, thereupon complains against the defendant T. Z., and alleges : 151. In an Action removed from a Justice's Court, on a Plea of Title to Land. Whereas, an action was brought by A. B. against Y. Z., in , before M. IST., a justice of the peace in and for tlie town of , in the county of , which ac- tion was discontinued upon an answer setting forth matter showing that the title to real property would come in ques- tion, (r) the plaintiff now in this court complains of the defend- ant Y. Z. for the same cause of action, and alleges : II. Formal Parts of an Answer. 152. Common Form, hy a Sole Defendant. [Title of cause.] (s) The defendant [by M. N., his attorney], {t) answering the complaint herein, alleges [or, denies] : {g) From Bidlen & L. F., 6. " ads." " B" (the plaintiif ), is abandoned (r) As to tlie necessity of setting under tlie Code, and is so far forgotten forth the proceedings in the justice's among clerks of courts, that we have cxjurt, and that appearing at the trial is once or twice known a defendant's at- a waiver of an omission to do so, see torney, after recovering a verdict in Clyde & Eose Plank-road Co. v. Par- favorof his client, to procure judgment ker, 22 Barb., 323 ; The same ■». Baker, to be rendered against him, by the ao- 12 Eow. Pr., 371. cident of sending the papers to the («) The Code does not require the clerk having the defendant's name in- answer to contain the title of the cause ; dorsed preceding the plaintiff's ; where- but the propriety of inserting it is ob- upon the clerk has entered the judg- vious. The old usage of reversing the ment against the party first named in parties' names in writing the title of the title, supposing him to be, of course, the cause in papers served on behalf of the plaintiff. the defendant, giving the names in the {t) This may be omitted where he title of an answer thus, for instance, has served a notice of appearance. The ■•A" (the defendant), "at suit of" or old rule, that the pleadings should 116 ABBOTTS' FORMS. Commencement of Answers. [^JETere set forth defences and counter-claims^ separately stating and numhering them.'\ Wherefore the defendant demands, {v) &c. [Signature.] («) [ Yerification, if the complaint is verifiedJ] 153. Commencement of Answer hy a Defendant sued hy a Wrong Name. This defendant, T. Z., in the summons and complaint in this action called G. E., answering the plaintiffs complaint herein, alleges [or, denies] : 154. The Same, hy an Infant. This defendant, an infant under the age of twenty-one years, by C. D., his guardian, answering the plaintiffs complaint here- in, alleges \or, denies] : 155. The Same, hy a Lunatic, <&c. The defendant, T. Z., a lunatic \or, a person of unsound mind, or, an idiot, or, an habitual drunkard], by M. N., his committee and guardian, answering the plaintiffs complaint herein, al- leges \or, denies] : state the names of the pleader's attor- out as irrelevant, for the plaintiff can. neys (2 Mev. Stat., 351) was satisfied, not be prejudiced by it. Averill v. where there were two attorneys part- Taylor, 5 How. Pr., 476. ners, by the firm-name, without the (!)) A verified answer is defective if Christian name of each. Bank of Ge- neither the answer nor the verification neva «. Rice, 13 Wend., 424. are subscribed. Laimbeer v. AUen, 2 (m) No demand of relief is necessary Sandf., 648 ; S. C, '2 Code R., 15. The unless the defendant seeks some aflBrm- subscription of the verification of the ative relief against the plaintiff or pleading is a sufficient subscription of against a co-defendant. But a defend- the pleading. Hubbell «. Livingston, ant's prayer for relief wiU not be struck 1 Id., 63. FOKMAL PARTS OF PLEADINGS. 1 1 7 Complaints and Answers where there are Several Parties. 156. Tlie Same, hy Husband and Wife, jointly. T. Z., one of the above-named defendants, and X. Z., his wife, answering the plaintifl''s complaint in this action, jointly allege \or, deny] : 157. Title and Com.mencement, hy One Defendant answering separately. [JVame of court.'] ^JVames of all the plaintiffs'], plaintiffs, against ■John Doe [answering defendant], impleaded with {w) Kicliard Roe, and others, defendants. The defendant John Doe, answering the complaint herein, alleges [or, denies] : 158. Answer containing Several Defences. [Title and Commencement as above.] First, (x) For a first defence, to the first alleged cause of action : (y) [Here set forth the facts constituting it.] Second. For a further defence : [Here set forth the facts constituting it, except that if any of them have been alleged above, an express reference to those allega- tions will sufflae instead of a repetition of them.] (s) {w) Where there are many defend- claim, or reply, the same must not only ants, and one of them answers alone, be separately stated but plainly num- or but a few answer together, it is a bered. Rule 19. convenient practice to entitle the papers {y) A defence must refer to the cause of the answering defendant in this of action which it is intended to answer, way. (Gode, § 150.) JSTo particular form of {x) In all cases of more than one dis- words is requisite, however. tinct cause of action, defence, counter- {z) Each defence in an answer, which lis ABBOTTS' FORMS. Formal Parts of Replies. Demurrers. III. Eeplt, and Dbmueeee. 159. Reply setting up Several Defences to Several Counter-claims. [Title of cause.] The plaintiffs, replying to the answer of the defendants [7iames of the answering defendants] herein, alleges: I. As to the first counter-claim, (a) First. The plaintiffs severally deny, each for himself, that he has any knowledge or information sufficient to form a belief as to the allegations of the answer respecting the same. Second. For a second defence to said counter-claim, the plain- tiffs allege [stating new matter in defence]. II. As to the second counter-claim, The plaintiffs deny each and every allegation of the answer' respecting the same. [Signatures.] [ Verification.] 160. Demurrer to Complaint. (5) iTitle of cause.] The defendant T. Z.- demurs to the complaint herein [or, to the first alleged cause of action in the complaint herein], and for the grounds of his demurrer states, that it appears upon the face of the complaint [state ground as in chapter of Demuerkes, infra]. [Signature.] is declared to be a distinct defence, answer, constituting a counter-claim, must be complete in itself, and must that the plaintiff can reply. Code, contain all that is necessary to answer § 153. the whole cause of action, or that part (6) The formal parts of the plaintiff's of it which it professes to answer, either demurrer to a counter-claim or other by express allegation, or by a distinct new matter pleaded as a defence in the reference to other parts of the answer, answer, and the formal parts of the Loosey «. Orser, 4 Bosw., 391 ; S. P., defendant's demurrer to the reply, are Ayres v. Covill, 18 Barb., 260. But a the same as above, mutatis mutandis. defect in this respect is not available The demurrer to a reply may be after verdict. Ayrault ». Chamberlain, founded on the ground merely that it 33 Barb., 239. was departure from the complaint, (as) It is only to new matter in the 'White v. Joy, 11 How. Pr., 36. FORMAL PARTS OF PLEADINGS. 119 Amendments. IV. Amendment. 161. Amended Complaint. [Title of cause.'] . The plaintiff by this his amended complaint alleges : (c) [Set forth cause of action as in an original comj>laint.'\ {d) (c) In Chancery it was the practice, if the amendments were not of a nature to require the original hill to be re- engrossed, to annex the amendments to the bill, and have a reference to them made in that part of the bill where the amendments should have been inserted, and reference made, at each amendment, to the proper place for its insertion in the original bill. Luce V. Graham, 4 Johns, Gh., 170. If a party thought fit to serve an entire new bill, incorporating the original matter with the amendments, he was required to mark distinctly the latter, or the defendant could refuse to receive it. Bennington Iron Co. ». Campbell, 3 Paige, 159. So, it was held that an answer to an amended bill should not repeat the matter of the former answer (Bennington Iron Co. «. Campbell, 2 Paige, 159 ; Bard v. Chamberlin, 5 Ch. Sent., 73), unless the grounds of the suit and the defence were varied in substance. Bowen v. Idley, 6 Paige, 46. An amendment of a defective jurat was not complete untU the amended jurat was served. Taylor v. Bogert, 5 Paige, 33. At law, too, where a party's motion to amend the pleading of the opposite party was granted — e. g., a motion to strike out the names of lessors in eject- ment, wrongly inserted, the practice was for him to serve on the opposite party a certified copy of the rule, and this was deemed an actual amendment, as to all subsequent proceedings on the part of the latter, without service of an amended pleading ; and authorized an actual amendment of the declaration on file, or filing a new one whenever necessary. Jackson e.Belknap, IJohna., 300. Under the Code it is the practice where a party amends liis pleading either of course, or after obtainiug con- sent or leave, to serve a new plead- ing; and it supersedes the original. It is the practice, too, to designate it on its face as an amended complaint or answer, as the case may be ; though it has been held that the omission so to designate it does not render it void. Hurley v. Second Building Association, 15 Abbotts' Pr., 306, note. (d) An amendment must be substan- tial, not merely verbal. Snyder v. White, 6 Sow. Pr., 321. Adding a verification to a complaint is not an amendment. George v. McAvoy, 6 JtZ., 300. It may add a new cause of action. Mason v. Whitely, 4 Biier, Oil ; S. C, 1 Abbotts' Pr., 85 ; and see Wyman v. Redmond, 18 Sow. Pr., 373 ; Macqueen 1). Babcock, 13 Abbotts' Pr., 268. Or strike out a cause of action. Watson V. Rushmore, 15 Id., 51. An amended pleading cannot set up matter which occurred after suit brought. Horn- fager ■». Hornfager, 6 Sow. Pr., 13 ; Lampson B. McQueen, 15 Id., 345. 120 ABBOTTS' FORMS. Analysis of Cliapter. OHAPTEK YIII. VERIFICATIONS, (a) I. By sole plaintiff or defendant. 162. Common form .' p. 121 163. By officer of corporation 122 n. Where there are several plaintiffs or defendants. 164. By one of several persons united in interest and pleading to- gether 123 165. By two parties not united in interest, but pleading together . . . 123 III. By agent or attorney. 166. By attorney, wlien the party is not within the county ....:... 134 167. The same, where the absent defendant is a corporation 125 168. By agent or attorney, when the action or defence is founded on a written instrument for the payment of money only, which is in his possession 125 169. The same, where the material allegations are within Ms per- sonal knowledge 126 (a) A defect in the verification of a complaint does not render the com- , plaint irregular. Even if the defect is apparent upon the face of the verifica^ tion, it only operates to relieve the de- fendant from the obligation to verity his answer. Fitch i). Bigelow, 5 How. Pr., 287 ; Van Home v. Montgomery, Id., 238 ; Lane v. Morse, 6 Id., 394 ; Waggoner v. Brown, 8 Id., 212 ; Quin V. Tilton, 2 Duer, 648 ; Strauss v. Par- ker, 9 Sow. Pr., 342; TreadweU v. Passett, 10 Id., 184; Hubbard ii. Na- tional Protection Ins. Co., 11 Id., 149 ; Williams i). Biel, 11 Id., 374. If the defect be latent, the defend- ant's relief must be by niotion. Gil- more 1). Hempsiead, 4 How. Pr., 153. The Code of 1848 (§ 133) provided that the verification to any pleading might be omitted where the party woiild be privileged from testifying to the same matter. The Code of 1849 omitted this provision altogether. The Code of 1851 (§ 157) provides that "the verification may be omitted when an admission of the truth of the allega- tions might subject the party to prose- cution for felony." The act of 1854 {Laws of 1854, 153) provides that the verification of any pleading may be omitted in aU cases where the party called upon would be privileged from testifying as a witness to the truth of any matter denied by such pleading. The only authority under the Code of 1848 is Clapper ». Fitzpatrick (1 Code P., 69), in which it was held that it was enough to excuse any defendant from verifying, if any part of the an- swer contained statements to which he or any of his co-defendants would be privileged from testifying. Under the Code of 1849, which contained no pro- vision on the subject, it was held that by the Constitution {Const., art. 1, § 6), and according to general principles of law, where a verified answer would subject the defendant to a criminal prosecution, he might, in the absence of any statutory provision, serve a veri- fied answer in which he might decline VERIFICATIONS. 121 Common Form. I. By Sole Pla.intiff or Defendant. 162. Common Form,. (J)) [ Yenue.] A. B., the plaintiff [or, defendant] above named, being duly sworn, says that the foregoing complaint [or, answer] is true, (c) to his own knowledge {d) [except as to those matters therein to answer such matters, upon that ground, and that such a refusal would be treated as a denial. Hill v. Muller, 2 Sand/., 684 ; White v. Cumming-s, 3 Id., 716 ; S. C, 1 Code B., N. 8., 107. The decisions tinder the Code of 1851 are Thomas v. Harrop, 7 How. Pr., 57 ; and Springsted v. Robinson, 8 Id., 41. In the latter case a verified answer in the form prescribed by HiU v. Muller, and White v. Cummings {supra), was held frivolous, and it was said that when the court could not see from the pleadings themselves that the admis- siop of the allegations in the complaint would subject the defendant to a crim- inal prosecution, he might show that fact by affidavit. The only cases un- der the act of 1854, are Sooville v. New, 12 How. Pr., 319 ; Lynch v. Todd, 13 Id., 547 ; Wheeler «. Dixon, 14 Id., 151 ; Anable -o. Anable, 24 Id., 93 ; Mo- loney 1). IXows, 3 Hilt, 247 ; BlaisdeU v. Elaymond, 5 Abbotts' Pr., 144. Where it appears by the allegations of the complaint that the truth of the matter charged might tend to subject the defendant to criminal prosecution And punishment, or penal liability, he may answer, denying allegations of the complaint without a verification, and it is not necessary to obtain leave of the court for the purpose. If the question of privilege is of such a nature that it would not appear by a mere denial of the averments in the complaint, then the defendant should put in a verified answer, setting forth, analogous to the former plea in equity, the grounds or reasons why he is ex- cused from answering any of the aver- ments in the complaint. Moloney v. Dows, 3 Hilt., 347. In Anable v. Anable (24 How. Pr., 92), it was held that the husband's loss of a possibility of an estate in his wife's lands, which would result from a de- cree of divorce against him for his fault, was a "penalty or forfeiture'' within the meaning of the rule which makes a witness privileged. But compare, however, Babbott v. Thomas, 31 Barb., 277. (6) In an action by an infant appear- ing by a guardian ad litem, the com- plaint may properly be verified by the guardian, and he need not do so as the agent or attorney for the infant, but may do so as the plaintiff. Anable v. Anable, 34 How. Pr., 93. (c) A verification alleging that " the same is substantially true," &c., was held insufficient as containing a quali- fication that was a material departure from the requirements (rf the Code. Waggoner v. Brown, 8 How. Pr., 312. {d) In Southworth v. Curtis, 6 How. Pr., 371 ; S. C, 1 Code B., m 8., 412, a verification omitting the words " to his knowledge," was held sufficient ; but the same defect was adjudged fatal in Williams v. Biel, 11 How. Pr., 375 ; and in Tibballs v. Selfridge, 13 Id., 64. In Van Home v. Montgomery, 5 Id., 238, an allegation that "the same is true according to the best of his knowledge and belief," was had in- sufficient. 122 ABBOTTS' FOEMS. Verification by Officer of Corporation. stated on information and (e) belief, and as to those matters he believes it to be true]. (_/) [Signature.'] (g) [Jurat.'] 163. By Officer (A) of Corporation. [ Venue.] A. B., being duly sworn, says that he is president of the Company, plaintiffs [or, defendants] above named, and that the foregoing complaint is true to liis own knowledge [except as to those matters therein stated on infor- mation and belief, and as to those matters he believes it to be true]. Deponent further says (t), that the reason why tlie veri- fication is not made bj^ the plaintiffs is that they are a corpora- tion ; that this deponent is an officer of the same, to wit, presi- dent, and that his knowledge is derived from having witnessed the transactions mentioned in the complaint [or, from the ad- missions of the defendant, or, other sources of personal knowl- edge, and where a portion or all of the material allegations are (e) In the Code of 1849, the word " or" stood in the place of " and ;" and under that Code it was held that a veri- fication using the word "and" instead of " or" was defective. Davis «. Potter, 4 JSow. Pr., 155. (/) Where a pleading states noth- ing on information and helief, this ex- ception may be omitted from thie veri- fication. Kinkaid v. Eapp, 1 Duer, 693 ; Ross V. Longmuir, 15 Abbotts' Pr., 336 ; Patterson «. Ely, 19 Gal., 28. In Haines v. Tripp, 4 Abbotts' Pr., 233, it was held that when the com- plaint was entirely upon information and belief, the proper form of the veri- fication was, "deponent believes the same to be true, all the allegations therein being made on information and belief." It is, however, a common practice to use a form like the one given above, as well for pleadings which are entirely on information and belief, as well as those that are direct, or partly direct, and partly on information and belief. (g) The verification must be sub- scribed by the party making it. Laim- beer v. Allen, 3 Bandf., 648 ; S. c'., 3 Code B., 15. (A) A managing agent of a corpora- tion, upon whom, under section 183 of the Code, the summons is served, is to be deemed an officer of the corporation within 'the provision 'of section 157, al- lowing an officer to make the verifica- tion of the pleading of a corporation. Glasbensklee i>. Hamburgh & Ameri- oifl Packet Co., 9 Abbotts' Pr., 104. {i; It is common to add, as in the form above, a statement of the grounds of knowledge of the officer, but it was held in Glaubensklee ■». Hamburgh & American Packet Co. (9 Abbotts' Pr., 104), that a verification made by an officer of a corporation, is the verifica- tion of the corporation, and need not state the deponent's ground of belief or sources of knowledge. Compare, also. Van Home ■». Montgomery, 5 How. Pr., 338 ; Anable v. Anable, 34 Id., 93. VEEIFICATIONS. 123 By Several Parties. on information and ielief, may add, or substitute, the following clause : — that the grounds of his belief are information commu- nicated to him by the agents of said corporation, or, other sources of informatio7i\. [/Signature.] [Jurat.} 11. "Where there aee seveeal PLAnsTxirFS oe Defendants. 164. £y one of several Persons united in Interest, and Pleading together. [ Yeniie.} A. B., one of the plaintiffs [or, defendants] above named, be- ing duly sworn, says that he is acquainted with the facts stated in the foregoing complaint (_;') [or, answer] ; that the same is true to his own knowledge [except as to those matters thei-eiii stated on information and belief, and as to those matters lie be- lieves it to be true]. [Signature.'] [Jurat.] 165. £y two Parties not united in Interest, hut Pleading to- gether, ijc) [ Venue.] A. B. and C. D., the plaintiffs [or, the defendants] above named, being severally duly sworn, say each for himself tliat the foregoing complaint il) [or, answer] is true to his own knowl- edge [except as to those matters therein stated on inforrnation and belief, and as to those matters he believes it to be true].' [Jurat] [Signatures.] (j) Whether it is necessary for the e. g., an action to set aside a convey- deponent to state that he is acquainted ance to her as void against creditors, — with the facts, has not heen decided in the answer must be verified by both, any reported case. It is the safer prao- if relied on as the answer of both, tice to state it. Youngs v. Seeley, 13 How. Pr., 895 , (Jc) Parties pleading together must Eeed v. Butler, 2 Hilt., 589. all join in the verification, unless they (f) The verification of a complaint, are united in interest. Andrews «. like that of an answer, should be uni- Storms, 5 Bandf., 609 ; Youngs ■». See- ted in by every party who unites in the ley, 12 How. Pr., 395. pleading, and whose interest is sev- In an action against husband and eral. Gray «. Kendall, 5 Bosw., 666 ; wife where her interest is separate, — S. C, 10 Abbotts' Pr., 66. 12i ABBOTTS' FORMS. Verification by Agent. III. By Agent oe Attoenet. 166. By Attorney ^when the Party is not witlmi the County. {m) [ Venue.] A. B., being duly sworn, says that he is the attorney \or, one of the attorneys] of the plaintiff in this action ; tliat the fore- going complaint is true to his own knowledge [except as to those matters therein stated on information and belief, and as to those matters he believes it to be true]. Deponent further says, («.) that the reason the verification is not made by said plaintiff is that he. is not within the county of , which is the county where deponent resides ;* and that this deponent's knowl- edge is derived from the possession of the notes in suit, and from the admissions of the defendant to this deponent [or, other sources of personal knowledge, if any. Where a portion or all the material allegations are on information and ielief add or substitute the following clauses : That the grounds of his belief are information received from the letters of the plaintiff, or, from M. N. of , the agent of the plaintiff, {o) or, other sources of informatiori\. [Signature^ [Jurat.'] (ffi) When the party is not within the facts set forth in the pleadings are the county where the attorney resides, true of his own knowledge, must state a verification made by the attorney is what knowledge he has on the sub- good, though the action be not on a ject ; and when he states that he be- writteu instrument for the payment of lieves the facts alleged on information money only, and in his possession, and and belief to be true, he must state he has no personal knowledge of the the grounds upon which his belief is truth of the allegations of the pleading, founded ; and in addition to tliis, he Lefever «. Latson, 5 Sand/., 650 ; Eos- must state why he makes the aflBdavit, coe 1). Maison, 7 How. Pr., 131 ; Stan- and not the party. Stannard v. Mat nard v. Mattice, Id., 4 ; Smith v. Rosen- tice; 7 How. Pr., 4 ; Treadwell ». Fas- tball, 11 Id., 442 ; Wilkin v. Oilman, sett, 10 Id., 184 ; Hubbard v. National 13 Id., 225 ; People ». Allen, Hid., 334 ; Protection Ins. Co., 11 Id., 149 ; Meads Drevert d. Apsert, 3 Abbotts' Pr., 165 ; v. Gleason, 13 Id., 309 ; Boston Loco- Myers V. Gerrits, 18 Id., 106 ; Gourney motive Works v. Wright, 15 Id., 253 ; V. Wersoland, 3 Suer, 613 ; Dixwell i). Fitch v. Bigelow, 5 Id., 387 ; People v. Wordsworth, 2 Code B., 1. AUen, 14 Id., 334 ; Bank of Maine v. (?i) In all cases where a verification Buel, Id., 311 ; Soutter «. Mather, 14 is necessary, in order to dispense with Abbotts' Pr., 440. a verification by the party, the person (o) An attorney may verify a plead- who makes the affidavit, stating that ing in behalf of his non-resident client. VERIFICATIONS. 125 By Agent or Attorney. 167. The Same, where the Absent Defendant is a Corjporation. [ Yenue and Co'mmencement'^ That he is the attorney of the Bant, plaintiffs in the above action ; that the foregoing complaint is true to his own knowledge [except as to those matters therein stated on in- formation and belief, and as to those matters he believes it to be true]. And he farther says, that the said plaintiffs are a corpo- ration, incorporated and transacting their business at , in the State of , and not established or transacting their business in the count}' in which deponent resides, neither do any of their officers reside in said county, but reside in said State of , which is the reason why this affidavit was not made by the plaintiffs. [^Continue as above, from the *.] 168. £y Age?it or Attorney, when the Action or Defence ts founded on a Written Instrument for the jpaym.ent of Money only, which is in his Possession. [ VenueJ] A. B., being dulj- sworn, says, that he is the agent of the plaintiff in this action, for the purpose of collecting the demand sued in the complaint [or, the general agent of the plaintiff in this city, {p) or, the attorney, or, one of the attorneys for the plain- tiff in this action] ; that the foregoing complaint [or, answer] is true to his own knowledge, except as to those matters therein stated on information and belief, and as to those matters he be- lieves it to be true. Deponent further says, that the reason why the verification is not made by the plaintiff [or, defendant] althongli it appears that the client has who knows most about the matter. a resident agent, and that it is through Drevert «. Apsert, 3 Abbotts' Pr., 165. him the attorney has obtained his in- Stating that the notes sued on were in formation. Drevert v. Apsert, 2 Ab- the possession of the deponent, and that hotta' Pr., 105. the reason why the verification was not {p) It is held in Boston Locomotive made by the plaintiff was his absence Works V. Wright (15 Sow. Pr., 353), from the State, sufficiently avers that that a verification by agent must dis- deponent was the agent of the plaintiff close the nature of the deponent's to put the defendant to proof of the agency. But it is not necessary that a contrary. Myers v. Gerrits, 13 .Id., pleading should be verified by the agent 106. 126 ABBOTTS' FORMS. Verification by Agent or Attorney. is that the action [or, defence] is founded upon a written instru- ment for the payment of money only, and such instrument is in the possession of deponent; and that his knowledge (q) is de- rived from said instrument, and also from the admissions of the plaintiff to this deponent [or, also from having witnessed the execution and delivery of the same, or, other sources of per- sonal Jcnowledge, if any. Where a portion or all of the material allegations are on information and belief, add or substitute the following clause : that the grounds of his belief are the state- ments of the plaintiff to, this deponent, or, other sources of infor- mation]. [Signature.'] [Jurat."] 169. The Same, where the Material Allegations are within his Personal Knowledge. [ Venue.] A. B., being duly sworn, says, that he is the agent [or, at- torney, or, one of, &c.] for the plaintiff [or, defendant] in this action, that the foregoing complaint [or, answer] is true to his own knowledge, except as to those matters tlierein stated on information and belief, and as to those matters he believes it to be true. Deponent further says, that the reason why the verification is not made by the plaintiff [or. defendant], is that all the material allegations of said complaint [or, answer] are within the personal knowledge of this deponent; and that his knowledge is derived from the admissions of the defendant to this deponent [or, other sources of personal knowledge]. [Jurat.] [Signature.] (q) In an action upon an instrument ment for the payment of money only, for the payment of money only, the sued on, -with information derived from possession of the instrument is enough, the plaintiff, is sufficient. Wheeler v. under section 157 of the Code, to au- Chesley, supra. thorize an agent or attorney of the The verification need not set forth plaintiff to verify the complaint (Myers the knowledge or grounds of belief of J). Gerrits,13^6&oWs' Pr., 106); whether such agent or attorney, if all the alle- the plaintiff be within the county or gations of the pleading are made in a not. Wheeler v. Chesley, 14 Abbotts' positive form, and none are expressed Pr., 441. as made on information or belief. Ross Stating his possession of the instru- «. Longmuir, Ij Id., 336. COMPLAINTS. liiT Analysis of Chapter. CHAPTER IX. COMPLAINTS. Section I. AVERMENTS RELATING TO PAETICULAE CLASSES OP PERSONS, SHOW- ING OFFICIAL CHARACTEK, TITLE, OR CAPACITY TO SUE AND BE SUED. I. A FLATNTIFF SUING ON BBHAIil' OB' HIMSELF AND OTHBES. 170. By one creditor suing on behalf of all others p. 138 171. The same, where only a particular class of creditors are con- cerned 139 173. By common informer 130 n. Assignees akd Devisees. 173. Allegation of assignment to plaintiff 130 174. The same, where plaintiff is trustee 131 175. Plaintiff or defendant being a devisee 131 III. ASSOCIATICWS. 176. By oflBcer of joint-stock company 1 33 177. By association of joint-tenants or tenants in common 133 TV. Banks. 178. Banking association, suing or sued in its associate name 133 179. The same, suing or sued in the name of its president 134 180. Action by or against an individual banker 134 V. Corporations. 181. By or against a foreign corporation 135 183. Domestic corporation, formed under the general manufactur- ing companies' act 137 183. The same, formed under the plank-road and turnpike coidpa- nies' act 138 184. Against the Corporation of the city of New York 139 VI. Executors akd administrators. 185. Plaintiff's appointment as administrator 140 186. Defendant's appointment as administrator 141 187. Plaiutiff s appointment as executor 143 188. Defendant's appointment as executor, or administrator with the will annexed .• 143 189. Commencement of complaiLu by executor or administrator, where he may sue in his own right 143 VII. Husband and wife. 190. On a debt of the wife, contracted before marriage 143 191. The same, where the husband has acquired, after marriage, that which was, before iliarriage, the property of his wife.. 144 128 ABBOTTS' FORMS. Commencement of Complaints. 193. Tlie same, where tlie husband has acquired that which be- came the separate property of Ms wife after marriage. . .p. 144 VIII. Infauts. 193. By infant plaintiff, showing appointment of a guardian ad litem 145 194. The same, a shorter form 145 K. Lunatics, etc. 195. By committee of a lunatic, idiot, or habitual druntard 146 196. The same, another form 147 197. Against the committee' of a lunatic, &c 148 X. Makbied women. 198. Marriage and separate estate of plaintiflT 148 , 199. The same, in an action other than on a contract for the pay- ment of money only 150 SOO. Against a married woman, on her contract 150 XI. Paetners. 201. Commencement of complaint by or against partners 151 302. Another form, alleging partnership 153 303. By surviving partner, on a cause of action which accrued to his firm 152 XII. Public offiobks. 204. By a single officer 152 205. By a board of officers 153 200. By the attorney-general 153 207. By sherifif suing in aid of attachment 154 XIII. Receivers. 208. Appointment in supplementary proceedings 155 209. Another form, setting forth the proceedings at length 156 310. Appointment pending litigation 158 211. Receiver of dissolved corporation 158 213. The same, another form 159 I. A PLAmriFF SUING ON BkHALF OF HiMSELF AND OtHEES. 170. By One Creditor Suing on Behalf of all Others. [Name of court, cfee.J A. B., plaintiff, against T. Z., defendant. The plaintiff, complaining on behalf of hinvself and all others (a) the creditors of M. N., "who shall in due time come (a) In an action in which an injuno- in the subject-matter are so numerous tion is sought, if all persons interested that it would be greatly inconvenient COMPLAINTS. 129 Creditor Suing in Behalf of Otters. in and seek relief by, and contribute to the expenses of this action, alleges : [set forth cause of action']. That the said creditors of M. JST. are very numerous, (J) to wit, more than in number, and that some of them are unknown to the plaintiff, and cannot with diligence be ascertained by him, and that it is impracticable therefore for him to bring them all before the court in this action ; wherefo2-e he sues for the benefit of all 171. The Same, where only a Particular Glass of Creditors arc concerned. [Title as above.] The. plaintiff, complaining on behalf of himself and all others the creditors of M. N., who are parties to the deed of trust hereinafter mentioned, who shall come in due time and seek relief by, and contribute to the expenses of this action, al- leges : [Continue as above / or add, unless it clearly appears hy other allegations, That the question which is the subject of tliis action is one of a common and general interest of all the said creditors under said trust-deed, wherefore the plaintiff sues for the benefit of all.] (c) to make them all parties, one of them are so numerous that it is impracticahle may sue on behalf of all, but he must for them to do so. Thirty-five are not distinctly state in his complaint that too numerous to join. Kirk v. Youug, he sues as well on behalf of himself as 2 Abbotts' Pr., 453. on behalf of all others equally in- An action cannot be maintained for terested with him Smith ■». Lockwood, the benefit of an unincorporated society ] Gode B., N. 8., 319 ; S. C, 10 JV. Y. in the name of a member, merely upon Leg. Obs., 13 ; Wood v. Draper, 24 an allegation that the members are Barb., 187; S. C, A Abbotts' Pr., 332. extremely numerous; but the com- A complaint by one or more of a nu- plaint must set forth the articles of merous class, may state that the plain- association to enable the court to de- tiffs sue for the benefit of those in- termine whether they have a right of terested who may " come in and con- action in the case, and whether the tribute to the expenses." Under the plaintiff named has authority to sue- established practice, the words of the for them. A statement that he is Code (§ 119) — " for the benefit of the especially authorized to do so, is not whole," — ^mean no more. Dennis v. enough. Habicht «. Pemberton, 4 Kennedy, 19 Ba/rb., 517. Sandf., 657. (6) All the plaintiffs to an action (c) See Brooks «. Peck, 38 -i5ar&., 519. should appear by name, unless they Section 119 of the Code allows one or Vol. I.— 9 130 ABBOTTS' FORMS. Complaints by Common Infonners. By Assignees, &c. 172. By Common Informer, (d) A. B., the plaintiif, -who sues as well for the People [or, for the overseers of the poor of the town of , in the county of ], complains against Y. Z,, and alleges : II. Assignees and Devisees. 178. Allegation of Assignment to Plaintiff, (e) J . [State cause of action acoruifig to the assignor.] {f) II. That on the day of ' , 18 {or, there- after, and before this action], {g) the said A. B. duly assigned the said clairn [or, instrument] to the plaintiff. (A) more of several persons liaving a com- mon or general interest, as distingnisli- ed from persons united in interest, to sue or defend for all, altliough tliey are not so numerous as to make it im- practicable to join all. Thus, now, as heretofore, one of four separate legatees may sue on behalf of himself and the others, for an account, etc., and all may avail themselves of the decree. Mc- Kenzie ti. L'Amoureux, 11 Bart., 516. (d) This form ig from Bullen & L. P., 17. Under a statute giving an action to certain persons, and in case they neglect to prosecute within a certain time, allowing any person to recover, a declaration in an action by one of the latter class must allege the neglect of the former to prosecute. Morrell i>. Fuller, 7 Johns., 402. (e) That an allegation of the assign- ment is necessary, see Prindle v. Ca- ruthers, 15 N. T., 426 ; White v. Brown, 14 Sme. Pr., 282 ; Adams i}. HoUey, 12 Id., 330. It is not enough merely to al- lege that " the said plaintiff is now the sole owner of the said demand." He must show how he acquired it. Thomas «. Desmond, 12 How. Pr., 321 ; Adams v. Holley, Id., 826; BusseU i>. Clapp, 7 Bai'h., 482 ; Bentley v. Jones, 4 Sow. Pr., 203 ; McMurray v. Gifford, 5 Id., 14 ; Parker ». Totten, 10 Id., 233. (/) In an action brouglit by an as- signee of a corporation, as well as where the corporation is plaintiff, upon an agreement with the corporation, no specific allegation of the incorporation is necessary in the complaint ; a state- ment of the name of the corporation, and of the making of the agreement between them, and of what the corpo- ration did in fulfilment of the agree- ment, includes the idea of the legal existence of the company ; and the fact of incoi-poration is not essential to be particularly stated in the pleading. Kennedy v. Cotton, 28 Barb., 59. (g) One who sues as assignee cannot maintain his titje by proof of an assign- ment made after suit brought. Gar- rigue V. Loescher, 3 Bosw., 578. But the time is suflSciently averred in this way. Martin «. Kanouse, 2 AlibotW Pr., 330. (/t) At common law, a sealed contract could be assigned by parol, and a stat- ute which makes a deed necessary to such a transfer, does not change the rule of pleading. The fact which it is necessary to state, is the change of in- terest, and it is sufficient to aver that the contract was duly assigned, Hor COMPLAINTS. 131 Allegations of Plaintiflf's Title. 174. The Same, where Plaintiff is Trustee, {i) The plaintiff complaining as assignee for the benefit of the creditors of A. B., alleges: I. \_State cause of action accruing to the assignor.'] n. That on the day of , 18 [or, there- after, and before this action], the said A. B. duly assigned all his property, including the said claim, to the plaintiff,, in tri;st, for the purpose of paying all his debts, {j) 175. Where the Plaintiff or Defendant is a Devisee. That the^aid A. B., being seized of the estate hereinbefore mentioned, died on or about the day of , at ; and by his last will devised the same to this plain- tiff [or, to the defendant]. (Jc) ner a Wood, 15 Barb., 371. Sucli an averment imports that the assignment was by a sealed instrument, from which a consideration is to be inferred. Fow- ler n. N. T. Indemnity Ins. Co., 33 Barb., 143. A consideration need not be stated. Clark v. Downing, 1 E. B. Smith, 406 ; Burtnett v. Gwynne, 2 Abbotts' Pr., 79 ; Vogel v. Badcock, 1 Id., 176 ; Martin ». Kanouse, 3 Id., 380. {i) One coming into Chancery and claiming a right a,s a substituted trus- tee, under a, will, should state all the material facts distinctly, in his bill, to show that such a vacancy had occurred as to authorize his appointment. If the will provides two modes for the ap- pointment of new trustees, he must state in which mode he was appointed. Cruger v. Halliday, 11 Paige, 314. (j) An assignee for the benefit of creditors ift a trustee, and is not per- sonally liable for costs. But he must allege in his complaint that he sues as such, or the court will not relieve him, in case he fails in the action. Murray •e. Hendrickson, Q Abbotts' Pr., 96 ; S. C, 1 Boiw., 635. For any other purpose this allegation is unnecessary. For an assignee under a general assignment for the benefit of creditors, is to be deemed in law the holder and owner of things in action assigned to him, so as to entitle him to sue in his own name. He is an assignee of an express trust ; has the entire legal title, and may sue in his own name without referring to his character as assignee. Butterfield v. Macomber, 23 How. Pr., 150. It is irregular to allege that the demand is the property of the assignor, and that he is the lawful owner and holder thereof, or that the defendant is indebted thereon to the assignor. Pal- mer V. Smedley, 28 Bmh., 468 ; S. C, '6 Ahbotts' Pr., 305. Compare Myers «. Machado, Id., 198 ; S. C, 14 How. Pr., 149. {k) This form of allegation is suffi- cient on demurrer. Spier v. Eobinson, 9 How. Pr., 335. But where the plain- tiff is the devisee it may be well to refer m.ore explicitly to the will, stating its date and the record. 132 ABBOTTS' FORMS. Commencement of Complaints by Associations. III. Associations. 176. By Officer of Joint-stock Company. {V) {Name of courts <&c.] A. B., President [or, Treasurer], of the Company, plaintiff, against C. D. and E. F., defendants. The plaintiff complaining as president [or, treasurer] of the Company, alleges: I. Tliat said company is a joint-stock company [or, associa- tion] in the town of , and county of , in this State, consisting of seven or more shareholders. II. That the plaintiff is the president [or, treasurer] of said company [or, association], (m) (l) " Any joint-stock company or as- sociation consisting of seven or more shareholders or associates, may sue and be sued in the name of the president or treasurer for the time being of such joint-stock company or association." Laws 0/1849, 389, ch. 258, § 1. This act does not include corporations. N. Y. Marbled Iron Works v. Smith, 4 Duer, 363. By the act of 1851, 838, ch. 455, this act was extended to any company or association, composed of not less than seven persons, who are owners of or have an interest in any property, right of action, or demand, jointly or in com- mon, or who may be liable to any action on account of such ownership or interest. Such an action against a company by its ofBcer has the same force and eflect so fa/r as the joint property, &c., is concerned as if it were against the members; but it does not bind their personal property, nor is it a bar to an action against them to enforce their personal liability upon the same debt. (m) This averment is a material and issuable allegation. Tiffany i>. Wil- liams, 10 Ahbotts' Pr., 304. The com- plaint need not show that the associa- tion was formed f6r business purposes ; and if it avers that the association con- sists of seven associates and upwards, it neel not state their names. Tib. betts V. Blood, 31 Barb., 650. COMPLAINTS. 133 B7 Associations. By Banks. 177. By Association of Joint-tenants or Tenants in Coin- man. («,) I. That the property hereinafter mentioned is owned jointly \pr, in common] by the Company [or, Association], an association consisting of not less than seven persons. II. [As in the preceding form.'] lY. Banks. 178. BanTcing Association., Suing or Sued in its Associate Natne. {0) \_Name of court., die] The A. B. Bank, plaintiff, against W". X. and Y. Z., defendants. The plaintiffs complaining of the defendants, allege : I. That the plaintiffs [or, defendants] are a Banking Associa- tion created by and under the laws of this State, organized pursuant to an act of the Legislature, entitled " An Act to au- thorize the Business of Banking," passed April 18, 1838, and the acts amending the same. (») For another form of complaint in an action brought mider the act of 1851, by the officer of any association of seven or more persons who own any property jointly or in common, see FOBMS OP COMPLAINTS ON PEOMISSOEY Notes. (o) The general law under which banking associations are organized, provides that suits may be brought by and against their president. Even since the amendatory act of March, 1841, this has been held to be permissive merely ; and the better practice to be, to plead as a corporation. QiUet ■». Moody, 3 JT. T. (3 Comst), 479; Case «.* Me- chanics' Banking Association, 1 Sandf., 693 ; and see Delafleld i). Kinney, 24 Wend., 345 ; Ogdensburg Bank v. Van Rensselaer, 6 Hill, 240 ; and East River Bank v. Judah, 10 Hoio. Pr., 135. And this is now the common prac- tice, — e. g., Bank Commissioners v St. Lawrence Bank, 7 N. T. (3 Sdd), 513; Commercial Bank of Pennsylvania n. Union Bank, 11 N. Y. (1 Ko-ii.), 203 ; Bank of Genesee v. Patchin Bank, 13 N. Y.{dKern.), 309; Mechanics' Bank- ing Association v. Place 4 Duer, 213. 134 ABBOTTS' FOBMS. Complaints by Banks. 179. The Same, Suing or Sued in the Name of its President. [Name of court, c&c] A. B. as President of the Bank of C. T>., plaintiff, against W. X. and Y. Z., defendants. The plaintiff, complaining as president of the Bank (^) of C. D., alleges : I. That the plaintiff is the president of said Bank, an associa- tion created by and under the laws of this State, organized pur- suant to an act of the Legislature, entitled " An Act to authorize the Business of Banking," passed April 18, 1838, and the acts amending the same, (q) 180. Action hy or against an Individual Banlcer. (r) \_Name of court, c&c.] A. B., plaintiff, against Y. Z., defendant. Ilhe plaintiff complaining of the defendant, alleges : I. That the plaintiff is an individual banker, carrying on the , in this State, under the des- business of banking at (p) This is necessary, or the action ■will be taken to have been brought in the plaintiff's own right. Hunt i>. Van Alstyne, 25 Wend., 605 ; Ogdensburgh Bank v. Van Kensselaer, 6 Sill, 240 ; Merritt v. Seaman, 6 iV. T. (2 Seld.), 168 : Gould v. Glass, 19 Barb., 179. Where, however, he merely describes himself as president, if he also alleges that he sues for the bank, the com- plaint vrill be sufficient, Roots. Price, 23 Sow. Pr., 373 ; and see Van Duser «. Howe, 31 jar. T., 531. {g) In a complaint in the name of the president, the act or contract sued on must be pleaded as the act or contract of the corporation, not as that of the "plaintiff" or "defendant." Delafield v. Kinney, 34 Wevd-, 345 ; Christopher 1). Stockholm, 5 Id., 86 ; Thomas D. Dakin, 23 Id., 9 ; ' Worden «. Worthing- ton, 2 Barb., 368 ; Merritt v. Seaman, COMPLAINTS. 135 By Corporations. ignation of the Bank of , pursuant to authority of an act of the Legislature, entitled " An Act to authorize the Busi- ness of Banking," passed April 18, 1838, and the acts amend- ing the same. Y. COEPOKATIONS. (s) 181. By or Against (t) a Foreign Corporation. {Title of the cause, and CoinmencementJi I. That the plaintiffs [or, defendants] are a corporation, duly chartered under and by the laws of the State of , and 6 JT. T. (2 Seld.), 168 ; Pentz v. Sackett, Sill & JD. Supp., 113; Ogdensburgh Bank ■». Van Rensselaer, 6 Hill, 340. Compare Hunt v. Van Alstyne, 25 Wend., 605. But even then tlie action is deem- ed to be by the bank, not by the presi- dent in right of the bank. Lowerre v. Vail, 5 Abbotts' Pr.. 229 ; Root v. Price, 22 IToM. Pr., 373. (r) In an action by an individual banker doing business under the gen- eral law, it is the proper practice for Mm to sue in his individual name, and not as the president of his bank. Bank of Havanna i). Magee, 20 N. T., 855 ; HaUett V. Harrower, 33 Barb., 537. The nominal proprietor of an indi- vidual bank, who furnishes the securi- ties to the comptroller, and to whom the circulating notes of the bank are delivered by that officer, and in whose name, as proprietor, all the contracts and transactions of the bank are made and conducted, is a " trustee of an ex- press trust," and may sue in his own name. Burbank ■». Beach, 15 Id., 336. («) Before the Code, it was well set- tled that a corporation plaintiff need not aver its corporate existence in its declaration ; but that it was sufficient to show that fact by replication if de- nied by the plea. Henriques v. Dutch VT'est India Co., 2 Ld. Baym., 1585 ; 3 Ha/rr., 105, 158 ; 4 BlacTcf., 267 ; 5 Id., 146 j'Morris v. Stops, Hob., 311 ; U. S. Bank ». Haskins, 1 Johns. Gas., 132 ; Dutchess Cotton Manufactory v. Davis, 14 Johns., 338 ; Bank of Utica v. Smal- ley, 2 Cow., 770 ; Bank of Auburn v. Weed, 19 Johns., 300 ; Bank of Michi- gan 1,. Williams, 5 Wend., 478 ; Pro- prietors of Southold v. Horton, 6 Hill, 501 ; Marine & Fire Ins. Bank v. Jaun- cey, 1 Barb., 480; Camden & Amboy R. R. Co. u. Remer, 4 Id., 127 ; Bank of Genesee b. Patchin Bank, I'd N. Y. (3 Kern.), 309 ; Union Mutual Ins. Co. «. Osgood, 1 Buer, 707 ; Metropolitan Bank v. Lord, 4 Buer, 630 ; S. C, 1 Abbotts' Pr., 185 ; Bank of Waterville B. Beltser, 13 How. Pr., 370 ; Kennedy V. Cotton, 28 Barb., 59; La Fayette Ins. Co. V. Rogers, 30 Id., 491 ; Shoe & Leather Bank i). Brown, 9 Abbotts' Pr., 318 ! S. C, 18 How. Pr., 308. On the same principle a complaint against a domestic corporation need not allege its incorporation. Lighte i). Everett Fire Ins. Co., 5 Bosw., 716 ; Acome v. American Mineral Co, 11 How. Pr., 24. This rule, however, is held not to ai> ply to foreign corporations plairitiff'. They must at least indicate the au- thority by whicli they were incorpo- rated. Connecticut Bank v. Smith, 9 Abbotts' Pr., 168 ; Waterville Manufac- turing Co. V. Bryan, 14 Barb., 183. This is not, however, necessary where they are sued on a contract with them J 36 ABBOTTS' FORMS. Commencemeut of Complaints ty or agamst Corporations. pursuant to an act of the Legislature of said State, entitled [title of the act], passed [date of the enactment], (m) II. That said corporation, being entitled, by its charter and the laws of said State, to make the contract hereinafter men- tioned [allege cause of action], (v) in their corporate name. 18 Ind., 337. Compare 11 Iowa, 502 Where defendants are alleged to be a corporation doing business within this State, the court will not intend, as a matter of law, that it is a foreign cor- poration. Acome v. American Mineral Co., 11 How. Pr., 24. The Revised Statutes provide that " in suits brought by a corporation cre- ated by or under any statute of this State, it shall not be necessary to prove on the trial of the cause, the existence of such corporation, unless the defend- ant shall have pleaded in abatement or in bar, that the plaintiffs are not a cor- poration." 2 B&o. Stat., 458, g 3. Cor- porations are sometimes created ipso facto, et eo instanti, by the mere pas- sage of a statute ; but more frequently the statute declares and points out the mode in which the legal body may thereafter be brought into existence. It is to corporations of the latter class, and to actions in which the plea of nul tiel corporation may be pleaded, that the foregoing statute applies ; but it is wholly inapplicable where the claim to corporate character rests on a statute which, as matter of law, confers no such character. Proprietors of South- old ». Horton, 6 SUl, 501. Under the Code, the averment is still unnecessary in the complaint. Bank of WatervUle V. Beltser, 13 How. Pr., 270. The trustees of a corporation should sue in the corporate name only. Bundy v. Birdsall, 29 Ba/rb., 31. An officer of a foreign corporation or company may maintain an action here in his own name on behalf of his com- pany, if his complaint states facts show- ing his authority to sue on their be- half ; for in such case he may be re- garded as the trustee of an express trust. But merely alleging that he is authorized, is not enough. Myers v. Machado, 6 Abbotts' Pr., 198. Where members of a corporation bring an action on behalf of the corpo- ration, the complaint must allege that the officers whose duty it is to sue,Jiave been requested to institute proceedings for that purpose, and have refused to do so. Vanderbilt v. Garrison, 3 Id., 361 ; House v. Cooper, 16 Hmo. Pr., 292. At common law, though a receiver has been appointed, and all the assets assigned to him, if the corporation is still in being, a suit may as well be maintained in the name of the corpo- ration as in that of the receiver. Bank of Lyons v. Demmon, Hill & I). Supp., 398. Where a common-law receiver sues in the name of the corporation, the declaration must aver that the suit is brought by the direction of the receiver. Bank of Niagara i>. Johnson, 8 Wend., 645. The officers of a corporation are not proper parties-defendant to an action against it to recover a mere money-de- mand, except where statute authorizes suits to be against them. Brahe t. Pythagoras Association, 4 Buer, 658. {t) One foreign corporation may sue another in the courts of this State upon a cause of action arising in it. Bank of Commerce v. Rutland & Washington R. R. Co., 10 How. Pr., 1. But a com- plaint against a foreign corporation must either allege that the plaintiffs are residents of this State, or that the cause of action arose, or the subject of action is situated, within this State ; COMPLAINTS. 13; By or against Corporations. 183. Domestic {w) Corporation, formed under the Oeneral Manufacturing Companies' Act. I. That the defendants are a corporation created by and under the laws of this State, organized pursuant to an act of the Legislature, entitled "An Act to authorize the Formation of Cor- porations for Manufacturing, Mining, Mechanical, and Chemical Purposes," passed February 17, 1848, and the acts amending the same, (aj) and if it does not, it may be dismissed on motion. House 1). Cooper, 16 Id., 292. {u) Tliis foriti is supported by Mu- tual Benefit Life Ins. Co. v. Davis, 12 N. T. (2 Kern.), 569 ; N. Y. Floating Derrick Co. v. N. J. Oil Co., 3 Buer, 648 ; and Blizabetbport Manufacturing Co. B. CampbeU, 13 Abiottn' Pr., 86. Where no allegation like the above is inserted, an answer denying specifically the allegations of the complaint, though it does not deny, yet it does not admit the incorporation, and the plaintiff must prove it by evidence of the charter or general act, organization, and user. WatervUle Manufacturing Co. v. Bryan, 14 Barb., 182; and see Stoddard 1). Onondaga Annual Conference, 12 Id., 573. (v) It is not necessary ,to set forth the specific power of the corporation under which the transaction in ques- tion arose. Reformed Dutch Church ■». Vedder, 4 Wend., 494 ; Struver e. Ocean Ins. Co., 2 HUt., 475; S. C, more fully reported, 9 Abbotts' Pr., 23 ; Perkins v. Church, 31 Ba/rb., 84 ; Marine & Fire Ins. Bank v. Jauncey, 1 Id., 486. Compare, however, Cam- den & Amboy K. R. & Transportation Co. 1). Remer, 4 Id., 127. Where the reason of the rule is questioned. And the contrary was held in Bard «. Cham- berlain, 3 Sandf. Oh., 81 ; where it is said that the power of a foreign corpo- ration to make the contract which is sought to be enforced, must be set forth in the bill ; and that an allega- tion that it was incorporated with vari- ous powers and duties, will not let in proof of a power to loan money and take security on land ; and that setting forth a statute enacted after the trans action in question, is not enough. (w) Facts extrinsic to. the cause of ac- tion, and only necessary to give juris- diction to the local court in which the action is brought, need not be alleged. Thus, in an action brought in the local courts of cities, mentioned in section 33 of the Code of Procedure, against do- mestic corporations, transacting their general business, or keeping an office within such cities respectively, of which actions, subdivision 3 of that section gives those courts jurisdiction, it is not necessary for the complaint to show that the defendants transact their gen- eral business, or keep an oflace within the city. Corn Exchange Bank v. West- ern Transportation Co., 15 J^fitW Pr., 319, note ; Koenig «. Nott, 2 Hilt., 323 ; S. C, 8 Abbotts' Pr., 384. (x) This form of averment is sup- ported by N. Y. Floating Derrick Co. v. N. J. Oil Co., 3 Buer, 648 ; Oswego & Syracuse Plank-road Co. v. Rust, 5 Row. Pr., 390. As to the necessity of this allega- tion where a domestic corporation is the plaintiff, see note (s), supra. In actions by or against a corporation 138 ABBOTTS' FORMS. Complaints by or against Corporations. II. \ Allege cause of action^ {y) 183. The Same, formed under the Plank-road and Turnpike Companies' Act. I. That the defendants are a corporation created by and un- der the laws of this State, organized pursuant to an act of the Legislature entitled " An Act to provide for the Incorporation of Companies to construct Plank-roads, and of Companies to created under a law of tliis State, it is not nect'ssary to recite tlie act or pro- ceedings of incorporation, or to set forth the substance thereof; but the same maj be pleaded by reciting the title of su;h act, and the date of its passage, a Rm. Stat., 459, § 13 ; and see TJ. S. Bank v. Haskins, 1 Johns. Cas., 133. (See, also, section 163 of the Code, which authorizes this mode of pleading statutes.) But the short mode of pleading permitted by this statute is not intended to relieve corporations from proving their existence. Onon- daga County Bank v. Carr, 17 Wend., 443. Compare Bank of Waterville «. Beltser, 13 How. Pr., 270 ; B^nk of Genesee «. Patchin Bank, 13 N. T. (3 Kern), 309. Where the original act of plaintiff's incorporation is referred to in the "Com- plaint, a vague reference to other gen- eral statutes affecting it does not ren- der the complaint demurrable. Sun Mutual Ins. Co. v. Dwight, 1 Hilt, 50. Before the Code it was held that where a corporation undertook to plead its existence by petting forth the title of the act, it must do so with accuracy ; and a replication describing the act as " An act incorporating the president, directors, and company of," &c., where- as its true title was " An act to incor- porate the stockholders of," &c., was held bad on demurrer. Union Bank v. Dbwey, 1 FSandf., 509. But a plea set- ting forth that A. and others, his asso- ciates, were created and declared a body corporate, &c., by the name of, &c., without alleging organization, was held sufficient in Beekman v. Traver, 20 Wend., 67. (y) Though an obligation given to a corporation, which is in terms payable to its agents or directors, should prop- erly be described, in declaring on it, as given to the corporation, by the name and description of the directors, &c., the omission of such averment is cured by verdict, or judgment by default. Bayley v. Onondaga County Mutual Ins. Co., 6 Hill, 476. Where a deed is made to a corpora- tion, by a name varying from the true name, they may sue in their true name, and aver in the declaration, that the defendant made the deed to them, by the name mentioned in the deed ; and an allegation that the defendants ac- knowledged themselves to be bound unto the plaintifis, by the description of, &c., is equivalent to such an aver- ment. N. Y. African Society «. Var- ick, 13 Johns., 38. A contract not under seal, signed by agents of a, corporation, and showing upon its face that the agents intended to contract for the corporation, and not for themselves, may be declared upon as its contract. Reformation in equity is not necessary. Many v. Beekman Iron Co., 9 Paige, 188. COMPLAINTS. 139 Against Municipal Corporations. construct Turnpike-roads," passed May 7, 1847, and the acts amending the saine. (s) 184:. Against the Corpm-ation of the City of New Yorh. (a) [Title of the cavse.} The plaintiff complaining of the defendant, a municipal cor- poration created by the laws of this State, alleges : I. [Set forth cause of action,.] II. And this plaintiff further shows that heretofore, and on or about the day of , he presented in writing to the comptroller of the city of New York the claim hereinbefore set forth, upon which this action is founded, for adjustment, and that at least twenty days have elapsed since such presentation of the claim. in. And this plaintiff further shows that heretofore, and on or about the day of , and after the expira- tion of the said twenty days, he made a second demand, in writing, upon the said comptroller, for the adjustment of the said claim, but the said comptroller has hitlierto wholly neglected and refused to make an adjustment or payment thereof, (i^) (z) TMs form of averment is support- an additional allegation, that the comp- ed by Oswego & Syracuse Plank-road troUer, upon a second demand, in Co. V. Rust, 5 How. Pr., 390 ; N. T. writing, made after the expiration of Floating Derrick Co. ■». N. J. Oil Co., said twenty days, neglected to make 3 Duer, 648. an adjustment or payment thereof. (a) No action can be maintained Laws of 1860, 645, ch. 379, § 2. against the mayor, &c., of the city of For somewhat similar statutes as New York, unless it appears, by an to the necessary demand before a suit allegation in the complaint, that at against the cities of Brooklyn and least twenty days have elapsed since Buffalo respectively, see ante, p. 10, the claims upon which the acition is note (a). founded were presented to the comp- (6) This form is from Carman v troller of said city for adjustment ; and Mayor, &c., of N. T., 14 AlAoHs' P"- not then, unless it further appears, by 301. 140 ABBOTTS' FORMS. Complamts by or against Personal Eepreseutatives. YI. Executors and Administkatoes. 185. Plaintiff^s Appointment as Administrator, llfame of court, &c.\ A. B., as administratoi',(c'i &c., of the estate of M. N. deceased, plaintiff, against "W. X. and Y. Z., defendants. The plaintiff complaining as administrator as aforesaid alleges ; {here set forth cause of action, if it accrued lefore jplaintifs (c) a complaint commencing A. B., administrator of the goods, &c., of deceased, plaintiff in this action, and containing no other statement of the fact of the plaintiff's appointment as administrator, does not allege that he is administrator or show that he pros- ecutes in that capacity. The intro- ductory statement is merely a descrip- tion of the person. In an action re- quired to be brought by the adminis- trator, in his capacity as such, a com- plaint so drawn does not contain a statement of facts constituting a cause of action, and is bad on demurrer. So of the complaint of an executor. Mer- ritt V. Seaman, 6 N. T. (3 Seld.), 168 ; Sheldon D.Hoy, 11 Sow. Pr., 11 ; Chris- topher «. Stockholm, 5 Wend., 36 ; Worden v. "Worthington, 2 Ba^h., 368. A complaint which describes plain- tiff as an executor, and states the cause of action — e. g., money received — as an indebtedness due to the plaintiff as executor, and that the money was had and received by the defendant for the use of the plaintiff as such executor, sufficiently shows that the plaintiff sues in his representative character. Scranton v. Farmers «& Mechanics' Bank, 83 Ba/rb., 527. The fact that the plaintiff is admin- istrator, and has been regularly ap- pointed by the surrogate of some county in this State, is a, material and traversable fact, and must be stated in such form as to tender an issue to the other party. Matter merely descrip- tive of the person of the plaintiff is not issuable, nor does it constitute any part of the cause of action. Sheldon v. Hqy, 11 How. Pr., 11. The date, place, and power of appointment must be averred, issuably. Neil e. Cherry, 1 West. Law M., 155. If tliis is not done in an action which the plaintiff must necessarily bring in his represen- tative capacity, the complaint is bad on demurrer on that ground. Sheldon t>. Hoy, 11 How. Pr., 11. Otherwise, if the cause of action is one on which he may sue in his own right. Bright v. Currie, 5 Band/., 433 ; S. C, 10 N. Y Leg. Ols., 104. As to when an action hy an executor should be brought in the representa- tive, and when in the individual capa city, see Lyon v. Marshall, 11 Ba/rb., 341 ; Merritt v. Seaman, 6 N. T. (3 Seld.), 168; Mowryj). Adams, 14 i!fes«., 337 ; Talmadge v. Capel, 16 Ld., 73 j Biddle d. Wilkins, 1 Pet., 093 ; Curtis D. Button, 4 Sandf., 719 ; Wiltsie ». Eeardsley, Hill & D. Supp., 386. COMPLAINTS. 141 By or against Personal Representatives. appointment ; if subsequent, set it forth after the next para- grapJi\. That thereafter and before this action {or, on the day of , 18 J, said A. B. died intestate, {d) and that on the day of 18 , letters of administration upon the estate of said A. B., deceased, were duly issued and granted (e) to this plaintiff by the surrogate of the county of , of this State, (/") appointing this plaintiff administrator of all the goods, chattels, and credits which were of said deceased, and that this plaintiff therei;pon duly qualiiied as such administrator, and entered upon, the discharge of the duties of his said office, {g) 186. Defendant'' s Appointment as Administrator. [Title and Commencement, as in preceding form ; and next state the Cause of Action, if it accrued against the decedent^ 11. That thereafter [or, on the day of , 18 J, said ]VL N. died intestate. in. That on the day of , at , an order or determination of the surrogate of the county of , was duly made, appointing the defendant administrator of the goods, chattels, and credits of said M. N., and that he is now such administrator. {d) It was held in Ketchum i>. Mor- of administration had been granted to reU, 2 N. T. Leg. Obs., 58, that in a a previous administrator, the profert suit by the pubUo administrator, the should set forth that fact, and that .declaration must aver distinctly the such letters had been revoked, decedent's intestacy ; and the allegar But the former rules of profert and tion is equally proper in other cases. oyer have no application under the («) This is the proper form of al- Code. Mayor of N. Y. v. Doody, 4 Ab- leging the appointment of an executor baits' Pr., 127 ; and see Welles ■». Web- or administrator. Beach v. King, 17 ster, 9 How. Pr., 251. Wend., 197 ; GiUet v. Fairchild, 4: Ben., (g) This form is supported by Wheeler 80. i>. Dakin, 12 Sow. Pr., 537 ; Welles o. (/) Section 161 of the Code, is ap- Webster, 9 Id., 251. In those States phcable to the decision of the surrogate where the right to sue the representa- in the appointment of an executor or tive is dependent on the presentation administrator. Wheeler v. Dakin, 12 of a demand, and his rejection of it, Haw. Pr., 537. those facts must be averred. Ellisson It was held in Ketchum v. Morrell, 2 «. Halleck, 6 Gal., 886 ; Heulsch v. Por JSf. T. Leg. Oba., 58, that where letters ter. 10 Id., 555. 142 ABBOTTS' FORMS. Complaints ty Executors. 187. Plaintiff'' s Appointment as Executor, (h) \_Title and Commencement., as in preceding forms; and next set forth the Cause of Action, if it accrued to the decedent.'] II. Tl^at thereafter, and before this action [or, on the day of , 18 J, said M. N. died, leaving a will, (*) by which this plaintiff was appointed'the sole executor thereof [or, ^iiis plaintiff and C. D. were appointed executors thereof]. III. That on the day of , 18 , said will was duly proved and admitted to probate in the office of the surrogate of the county of and letters testamentary thereupon were thereafter duly issued and granted (J) to this plaintiff, as sole executor, by the surrogate of said county ; and this plaintiff thereupon duly qualified as such executor, and en- tered upon the discharge of the duties of his said office, {k) (A) An executor derives bis authority from the will, and at tlie common law he might commence an action before probate. But under the statute (3 Sev. Stat., 71, § 16), — which deprives exec- utors of any power, except to pay fu- neral charges and preserve the estate, until letters testamentary are granted, — the issue of letters must generally be had before commencing suit, and must be alleged in the pleading. Thomas 1). Cameron, 16 Wend., 579. Where an executor takes a mortgage in his individual name, adding merely a description of him as executor of, &c., and dies, a bill filed by his succes- sor to foreclose the mortgage must ex- pressly allege, aside from the language of the mortgage, that it was a part of the assets. Peck ». Mallams, 10 ^. Y. (6 Seld.), 509. (i) Where the authority of execu- tors is material, a distinct averment of their testator's death is proper. Halleck v. Mixer, 16 Gal., 574. A bill alleging that there was an in- strument in writing purporting to be the last will and testament of M., de- ceased, and to be duly executed and at- tested ; that it was admitted to probate as a will of real and personal estate, and that letters testamentary were is- sued, and the executors took upon them- selves the execution of the instrument, sufficiently shows that the instrument was a will, and had been so adjudged by the Surrogate's Court. Mason ®. Jones, 13 Barb., 461 ; Van Cortlandt v. Beekman, 6 Paige, 492. (J) Averring that the plaintiffs " have been duly appointed and qualified by the surrogate of the county of New York, to act as the sole executors of A. B., deceased," is not sufficient. Forrest ■». Mayor, &c., of N. Y., 13 Abbotts' Pr., 350. (Jc) The former rule was, that where there were several executors, all must join in the prosecution of a suit, even though some had renounced. Bodle v. Hulse, 5 Wend., 313. But since the act of 1838 {Laws 0/1838, 103, ch. 149, § 1), it is no longer necessaiy to join these executors, as parties to whom letters testamentary have not issued, and who have not qualified. COMPLAINTS. 143 By Executor, &c. Against Husband and Wifa \i%. Defendant s Appointment as Exeffittor, (J) or Administrator with the Will Annexed. \ Commencement, c&o., as ifi preceding forms.] II. That thereafter, and before this action [or, on the day of J, said M. JST. died leaving a will [appointing the defendant his execntor]. III. That the defendant, by an order or determination of the surrogate of the connty of , duly made on the day of , was appointed, and now is, the executor of said will [or, the administrator of his estate with the will annexed]. 189. Commencement of Complaint hy JExecutor or Administra- tor, where he may Sue in his own Right. The plaintiff above named, complaining as administrator of the estate [or, executor of the will] of M. N., deceased, alleges : VII. Husband and Wife. 190. On a Debt of the Wife, contracted before Marriage, {m) where the Husband has acquired, by an Ante-nuptial Agreement, Separate Property of his Wife. I. That the defendant W. Z. is the wife of the defendant Y.Z.(n) II. That previous to the marriage of the defendants, while sa^d W. Z. was sole and unmarried [here set forth the cause of action against her]. {I) In an action against several ex- {m) Under the Laws o/18o3, 1057 ecutors, such of them as are first served ch. 576. with process, or first appear, are enti- For a form of complaint against hus- tled (under 3 Iteii. Stat, 448, § 5) to an- band and wife, on a note indorsed by swer for the estate ; and it is irregular the wife while sole, before the delivery for their co-executor to put in an an- of the note to the payee, see Sexton v. swer thereafter. Fleet, 6, Abhotta' Pr., 8 ; S. C, 15 How. Nor does collusion between the plain- Pr., 106. tiifand the executor who first answers, (n) A marriage de facto, although give his co-executor the right to an- not legally solemnized is sufficient, at swer, at least not without the leave of common law, to render the husband the court, on a direct application for liable for the previously contracted that purpose. Salters v. Prujn, 15 Al- debts of the wife. Andr., 237, 238 ; 1 lotts'Pr., 334 Campb., 345 ; 3 Eap., 637. 144 ABBOTTS' FORMS. Complaints against Husband and Wife. III. {o) The plaintiff further shows, that previous to the mar- riage of the defendants, said W. Z. owned certain property, to wit : [here describe the pi'operty of the wife which the husband has acquired^ IV. That before their marriage the defendants entered into an ante-nuptial agreement [Aew state effect of agreement as to transfer of property] ; and that the value of the separate prop- erty of said defendant W. Z. [wife'], so acquired by the defend- ant Y. Z. [husband], was dollars. 191. The Same, where the Husband has acquired, after Mar- riage, that which was before Marriage the Property of his Wife. [I., II., and III., as in preceding form^ IV. That since the marriage of the defendants, and * before this action, the defendant W. Z. conveyed to the defendant Y. Z. [Jiere state what was conveyed] ; and that the value of the sepa- rate property of the defendant [wife], so acquired by the de- fendant [husband], was dollars. 192. The Same, where the Husband has acquired that which became the Separate Property of his Wife after Marriage. [I. and II., as in Form 190.] III. That since the mai'Hage of the defendants, certain prop- erty, to wit [here describe her separate property], became the sole and separate property of the defendant [wife], by inherit- ance [or, gift, grant, devise, or, bequest] from [a person other than her said husband, to wit : one] M. N. IV. That thereafter and [continue as in the preceding form, from the *]. (o) If tlie\lmsl3and tas acquired none 1057, cli. 576. But the complaint is of tlie wife's separate property, tliese not demurrable for omitting to desig- two paragraphs are not essential. In nate the wife's separate property, which such case, the judgment, though against by that statute is alone bound by the both, can be executed only against the judgment in such case. Foote v. Mor- wlfe's separate property. Laws q/lSSS, ris, 12 N. Y. Leg. Ohs., 61. COMPLAINTS. 145 Appointment of Guardian. VlLl. Infants. 193. By Infant Plaintiff, showing Ap;pointment of Guardian ad litem. [Name of court, c&c] A. B., an infant, by 0. D., his guardian, plaintiflf, against T. Z., defendant. The plaintiff complaining of the defendant alleges : I. That the plaintiff is an infant, under the age of twenty-one years. II. That on the day of , 18 , at , upon application duly made on his behalf, the said C. D. was, by an order of this court [or, by an order made by Hon. , a judge of this court; or, by Hon. , countj^-judge for county], duly appointed the guardian of the plaintiff for the purposes of this action, {p) 194. The Same, a Slwrter Form. [Commencement as above. ^ II. That on the day of , 18 , at , the above-named , was by Hon. , a justice of this court [or county judge of county], duly {q) ap- pointed guardian of the plaintiff for the purposes of this action. (,p) The complaint of an infant by his guardian, must set forth the appoint- ment of the guardian with certainty as to time, place, and power of the ap- pointment. 2 Scmnd., 117,/., note 1; 1 Lev., 224 ; 3 Arch. Pr., 940 ; Stanley B. Chappel, 8 Cow., 235; Hulbert 'o. Young, 13 Hoko. Pr., 413 ; and see Gil- lett v. Fairchild, 4 Den., 83 ; Beach ii. King, 17 Wend., 197; and White v. Low, 7 Barb., 204, as explained by White V. Joy, 13 Jf. T. (3 Kerru), 82. That the appointment was made npon the plaintiff's application, might be considered as sufficiently implied by Vol,. L— 10 the averment that the guardian was duly appointed. See, as to the force of the word "duly" in pleading, Polly v. Saratoga & Washington R. R. Co., 9 Barh., 449 ; People ex rel. Haws d. Wallier, 2 Abbotts' Pr., 431 ; People ex rel. Crane v. Ryder, 12J!f. T. (3 Kern),^ 438. And objection to a complaint which merely states that he was duly appointed, cannot be taken by demur- rer ; but if too general, the remedy is by a motion to make it more definite. Ser6 V. Coit, 5 Abbotts'Pr., 481. {q) We consider the above form as authorized by the Code (§ 161), but the ii6 ABBOTTS' FOEMS. Complaint alleging Appointment of Committee. IX. Lunatics, etc. 195. £y Committee of a JJiimatic, Idiot, or Habitual Drunkard. \Name of court, dtc] A. B., as committee (r) of M. N., a Innatic, [or, an idiot, or, an habitual drunkard], plaintiff, against W. X. and Y. Z., defendants. The plaintiff, complaining as the committee of M. N., a luna- tic [or, an idiot, or, a person of unsound mind, or, an habitual drunkard], alleges : I. That on the day of > 18 , upon pro- ceedings duly instituted in the Supreme Court (s) of this State, in and for the county of [or, in the case of an habitual drunkard, it may he, duly instituted in the County Court of the county of ], by an inquisition then taken and returned, said M. N. was found to be a lunatic [or, otherwise, as above], and thereupon this plaintiff was, by an order of said court, duly made by said court, on the day of , 18 , at , appointed committee of said M. N.'s person and estate. cases do not uniformly recognize its suiBciency. (r) Prior to the act of 1845 (ch. 112), it was requisite that actions on behalf of a lunatic should be brought in the limatic's name. Petrie v. Shoemaker, 24 Wend., 85 ; Lane v. Schermerhorn, 1 Hill, 97 ; McKillip v. McKiUip, 8 Ba/rh., 553. But where a lunatic is a necessary party to a bill filed by the committee, a bill "of A., committee, &c., of B.," was deemed merely the committee's biU. Gorham «. Grorham, 3 Barb. Oh., 24. Under the act of 1845, however, com- mittees may sue in their own name " for any debt, claim, or demand trans- ferred to them, or to the possession or control of which they are entitled as such committee." It has been held that under the Code the committee is the trustee of an express trust, and therefore may sue in his own name without joining the lunatic ; that this extends to actions for equitable as well as those for legal relielj in the class of cases specified. Person «. Warren, 14 Barb., 488. See, also, Davis d. Carpen- ter, 13 How. Pr., 287. The case of McKillip «. McKillip (8 Barl., 553), where it was held that an equitable ac tion affecting real property must be brought in the lunatic's name, was an action commenced before the Code. (s) As to the history of the judicial custody of lunatics, see Brown's Case, 1 Abbotts' Pr., 108 ; S. C, 4 Duer 613. COMPLAINTS. 147 Alleging Appointment of Committee, 196. The Same, Another Form.{t) {Title and Commencement, as above.] I. That a petition of lunacy, issued out of the Supreme Court, against said [Imiatic], on or about the 9th day of No- vember, 1854, which was duly executed by commissioners therein named, in the county of Albany, where said \_hmatic] tiien resided, and still resides, and thereby, on the 18th day of i^ovember, 1854, it was found, by a jury duly summoned, that said [lunatic] was of unsound mind and incapable of the man- agement of his lands, tenements, goods, chattels, and property, and that he had been in the samS state of lunacy for the space of two years and upwards then next preceding ; whereupon, on finding said commission duly executed, with the return of the commissioners and jury thereon indorsed and signed, with the clerk of Albany countj^ this court, on the 16th day of Decem- ber, 1854, confirmed said finding of the jury, and further order- ed, that said \com,mittee], of Albany, be, and he then and there was, appointed committee of the person and tlie estate oi\luna- tic] ; and said ioommittee] tiled with said clerk, on or about December 18, 1854, the requisite bond for the faithful perform- ance of his trust, duly acknowledged and approved ; and that said appointment remains in full force, whereby said [commit- tee] is still committee as aforesaid. II. And this plaintiif says [setting forth the cause of action — e. g., a promissory note made hy defendant and indorsed to the lunatic]. III. This plaintiff further says, that he is informed and be- lieves that said note has not been paid, nor any part thereof, either to said [lunatic], before the appointment of this plaintiff as committee, or to this plaintiff since said appointment; that by virtue of said orders of the Supreme Court, said sum of money became due and payable to this plaintiff, and is still due him, he being the owner thereof as aforesaid. Wherefore, &c, it) From McCaU'a Forms, 367. us ABBOTTS' FORMS. Alleging Appointment of Committee. Separate Estate. 197. Against the Committee of a Limatic, (&o. [Wame of court, c&g.] A. B., against Y. Z., as committee of M. N., a lunatic [or, an idiot, or, habit- ual drunkard]. [After usual commencement and statement of cause of action against the lunatic, add,'] II. That afterwards [or, on the day of > 18 , at j, the said Y. Z. was duly (u) adjudged by the court to be a lunatic [or, otherwise, as above']. III. That the defendant was then and there duly (u) ap- pointed by the said court committee of the [person and] estate of the said lunatic. Wherefore, the plaintiff demands judgment for dol- lars, with interest from " , to be paid out of the estate of the said M. N., in the hands of the defendant. X. Maeeied "Women. 198. Marriage and Separate Estate of Plaintiff . {v) II. That on the day of ? 18 , {w) the plain- tiff intermarried with one J. S., whose wife she now is. (m) a complaint against a committee of an habitxial drunkard is bad on de- murrer, for not stating a cause of action, if it omits to allege or show \>j wliat court or authority the debtor was de- clared an habitual drunkard, and the custody of his person and estate award- ed to the defendant. Hall ■». Taylor, 8 Mow. Pr., 438. But less particularity may be deemed necessary in alleging the oflBcial capacity of the adverse party than in other cases, because it is a mat- ter peculiarly within his own knowl- (?)) A married woman may now sue and be sued respecting her separate property or her transactions in her separate business as if she were a feme sole. We do not consider it necessary for her complaint to show that the action concerns her separate property, unless it appears by the complaint that^ COMPLAINTS. 149 Married Woman's Separate Estate. III. That the consideration of the said note [or, of the said transfer, or, indorsement of said note to the plaintiff] was the payment by this plaintiff to the maker [or, indorser, or, as- signor] thereof, of the sum of , which said sum was [or, the principal and interest of a certain sum which was], at and before the time of her marriage, owned by her [or, which was acquired by her, by her trade or services] ; and thereafter was her sole and separate property, and * so continued until the time of such payment; and that said note thereupon became and ever since has been her sole and separate property, {x) [Or, III. That the consideration of the said note [or, of the said transfer, or, indorsenietit, of said note to thg plaintiff] was the payment by the plaintiff to the maker [or, indorser, or, as- signor] of the sum of dollars, which said sum became [or, was the principal and interest of a certain sum which became] after her said marriage her sole and separate property by inheritance [or, gift, grant, devise, or, bequest] from [a person other than her said husband, to wit, one] M. 'N., and [continue as above, from the *]. [Or, III. That the consideration of [c&c., as above], which said sum was the proceeds of certain property, which was at and before [c&c, as above], [or, which said sum was the proceeds of certain property wliich became after [d&f., as above]. she is a married woman, which usually mel, Id., 353, and notes; Aiken v. Dor need not be the case. If she sues as if vis, 17 Cal., 139. she were a feme sole, and the answer (w) In many cases the date of the pleads her coverture, the fact that the marriage will he necessary, to bring subject of the action was her separate the case within the statutes, estate or arose in her separate business {x) A general averment that the might be proved under that issue. If, property is the separate property of the however, the answer contains a counter- married woman, is not bad on demur- claim to which she desires to reply, rer. If defendant has a right to be pleading coverture, her reply should informed of the facts constituting the also contain the averments of which goods her separate property, his rem- the form is given above. edy is by motion. Spies v. Accessory Compare, on the effect of the recent Transit Co., 5 Duer, 663 ; and see Lipp- statutes. Coster v. Isaacs, 16 Abbotts' man v. Petersburgh, 10 Abbotts' Pr Pr., 338, and vMte; Baldwin «. Kim- 354. 1 50 ABBOTTS' FORMS. Alleging Married Woman's Separate Estate. 1 99. The Same^ in an Action other than on a Cont/ractfor the Payment of Money only. II. [State marriage, as in preceding form,.} III. That the property hereiabefore mentioned was, at and before the time of her said marriage, owned by her, and ever since has been her sole and separate property. \_0r, III. That the property hereinbefore mentioned was after her said marriage bought by her with the proceeds of certain property, which was at and before the time of her said marriage owned by her; and that ever since the same has buen [as above]. [Or, III. That the propeity hereinbefore mentioned became, after her said marriage, lier sole and separate property, by inheritance [or, gift, grant, devise, or, bequest] from M. JST.. and that ever since the same has been [as above']. [Or, III. That the property hereinbefore mentioned was after her said marriage acquired by her, by her trade or services entered into on her own and separate account, and ever since, &c. 200. Against a Married Woman, on her Contract, {y) I. That the defendant is the wife of one M. E". II. That at the time of making the note hereinafter men- tioned, the defendant was, and still is, seized in fee [or other- wise] in her own separate right of a farm in the town of , and county of , containing about acres of land, of the value of dollars, (s) III. [State cause of action ; and either show that the transac- tion was in a separate business carried on by her within this State, or that the consideration was a direct benefit to the defend- ant's separate estate, or else add :] IV. That in consideration thereof, the defendant agreed to (■') charge her said estate with the amount of the said (y) Tliis form is from the forms report- Cobine v. St. John, 12 How. Pr., 336; but ed by the Commissioners of the Code, compare Bostic v. Love, 18 Cal., 69 ; and 16. ante, notp [q). (z) The earlier cases hold that the (n) If the consideration was not for complaint must show what the estate is, the benefit of the wife or her estate, this and what is its value. Pexton ti. Fl eet, .illeg.itinn is necessary. Yale d. Dedeoer. 6Abbott^Fr.,9; S. C, U H<,w. I'r., 106; 18 N. T., 281. COMPLAINTS. 151 By aad against Partners. Wherefore the plaintiff demands judgment : (5) 1. That said note be a charge on said estate of defendant ; 2. That said estate be applied to the payment of the sum of dollars, with interest from the day of , 18 . 3. That a receiver be appointed to take possession of the same, for that purpose. 200a. Another form. Where contract sued on expresses intent to charge separate estate, (c) \Aft€T alleging Gouse of action, add ;] That the defendant is the wife of M. N., and at the time of making said indorsement she had and still has a separate estate, and intended to charge such separate estate by said indorsement. Wherefore [demanding usual money judgment.'] XI. Partners. 201. Commencement of Complaint hy or against Parl/ners. [Name of court, c&c, and title of cause, giving individual, not firm, names of plaintiffs and defendants.] The plaintiffs A. B. and 0. D., partners, doing business under the firm-name of A. B. & Co., complain of W. X. and Y. Z., partners, doing business under the firm-name of X. & Z , and allege: {d) In an action to charge the separate Pr., 339; Yale v. Dederer, 21 Barh., estate of a married woman upon her 292; 31 /i-x^ 1sV«> sole-surviving partner of the firm, {d) XII. Public Officers. 204. Py a Single Officer, (e) Robert Denniston, as comptroller of the State of New York, (/) against John Jones. The plaintiff complains, and alleges : I. That he is the comptroller of the State of New York, (g) (d) If the cause of action accrued to tlie individual name, with the title of the partnership, the death and the sur- office annexed. Paige «. Fazackerly, 36 vivorship must he averred, though it Barb., 392 ; 3 Sev. Stat., 474, § 96. is otherwise if the cause of action ac- (/) This form is from the report of crued to the survivor, even where con- the Commissioners of the Code (No. 13). sideration was one which proceeded (g) This allegation is proper, and from the partnership. might be required on motion, if omit- (e) An action by public officers, as ted, though the complaint would be such, should generally be brought in good on demurrer without it, if the COMPLAINTS. 153 By Officers. 205. By a Board of Officers, (h) IjVame of the court, c&c] The Board of Commissioners of Ex- cise (*) in and for the county of , plaintiffs, agamst Y. Z., defendant. The plaintiffs as Board of Commissioners of Excise aforesaid, complain of the defendant, and allege : 206. By the Attorney-geixeral. {j) \_Name of the court, dhc] The People of the State of New Tork, on the I'elation of A. B., plaintiffs, against Y. Z., defendant. fact that he sued as such officer were alleged. Gould «. Glass, 19 Barb., 185 ; Smith V. Levinus, 8 If. T. (4 8eld.), 447. (A) A proceeding to compel the su- pervisors to exercise their discretion in auditing a claim against the county, should not be a,gainst the supervisors individually, specifying in the process, pleadings, and proceedings, their name of office, pursuant to 3 Iiev.8tat.,4:74:, § 96. It is not an action against the " officers named in section 93," to which the provision of section 96 refers, but since it is to compel a performance of duty by the board, and not by the super- visors individually, it should be brought against the board. People ex rel. Plumb «. Supervisors of Cortland, HHow. Pr., 119. (i) Inserting the individual names of the members of the board in the caption of the complaint does not ren- der the complaint defective, if the com- plaint alleges that they are such officers, and sue as such, and for a cause of ac- tion which accrued under the statute to them as such. Halt v. Benson, l!? How. Pr., 303. Thus actions by the commissioners of highways may be properly brought in the names of the individuals, with the addition of their name of office ; but if so brought, the complaint should show, by proper averments in the body of it, that the claim is made by the officer and not by the individual. Gould ■B. Glass, 19 Barb., 179. (j) Code of Pro., ^^ZL 154: ABBOTTS' FORMS. Complaint hy Sheriff. The People of the State of New York, by M. IST., tlieir at- torney-general, and A. B., the individual plaintiff above named, complaining of the defendant, allege : 207. By Sheriff Qc) suing in Aid of Attachment. I. That he is the sheriff of the [city and] county of , du- ly elected, qualified, and acting as such. ' II. That on the day of ,18 , he I'eceived a warrant of attachment, duly issued out of this court, and to him directed and delivered, as such sheriff, in an action against M. N., whereby he was directed to attach and keep all the property of sa,id M. ]Sr. in his county. III. That the defendant then had in his possession $300 be- longing to M. N. [or, was indebted to the said M. N. in tlie sum of dollars for, here state hriefly the cause of action]. lY. That on the day of > 18 , the plaintifl made due service of said warrant of the defendant, by deliver- ing to, and leaving with him a copy, with a notice showing the property levied on ; whereupon the plaintiff became entitled to receive from the defendant, and he became answerable to the plaintiff for said $300, which the defendant refuses to pay over to the plaintiff, or to account to him for ; to his damage dollars. (/!) (A) Where the action is by the plain- acts in question. Curtis «. Fay, 37 tiff in the attachment, see Form 36, p. Barb., 64 ; Poinsett v. Taylor, 6 Cat, 78. 18, ante. [l) This form is taken from, and In an action against a sheriff to supported by Kelly «. Breusing, 33 recover damages for wrongful acts of Ba/rb., 123 ; affirming S. C, 33 Id., 601. his deputy, it is not essential that the The sheriff need not show the validity complaint should allege that he is of his title to the office, nor the juris- sheriff, nor that the acts complained of diction of the court which issued the were committed by his deputy. Those attachment, nor need he set forth the facts may be proved under a general exact terms of the notice by which he averment that the defendant did the executed it. lb. COMPLAINTS. 155 AUegations of Appointment of Receiver. Xm. Receivees. {m) 208. . AppointTnent in Supplementa/ry Proceedings. [Title of the cause.'] A. B., complaining as receiver {n) of the property of M. E"., alleges : \_set forth cause of action accruing to the judgment- debtor']. n. That on the day of , 18 , at , upon an application made by O. P., a judgment-creditor of said M. N., in proceedings supplementary to execution, and by an order or determination then duly made by Hon. , one of the justices of the Supreme Court [or, county judge for the county of J, the plaintiff was appointed receiver of tho property of said M- N. (o) . (m) A receiver suing by virtue of his title and authority as sucii, should state the time and place of his appoint- ment, and distinctly aver that he has been appointed by an order of the court. Alleging that he was duly appointed on such a day is not sufficient. White V. Low, 7 Barb., 204 ; Gillett v. Pair- child, 4 Den., 80 ; Bangs v. Mcintosh, 33 Barb., 591. Describing himself as " having been duly appointed receiver of, &c., and bringing this suit by order of the Supreme Court," is insufficient on demurrer. Dayton ®. Connah, 18 How. Pr., 336. But it is not necessary for him in his complaint, to set out all the proceedings by which he was ap- pointed. Alleging that plaintiff is re- ceiver of, &c., appointed by the Supreme Court by an order made on a specified day, on condition of filing security, and that such security was given accord- ingly, states enough to enable the de- fendant to take issue upon the legality of the plaintiff's appointment. Stewart V. Beebe, 38 5ar&., 34. Compare Crow- weU V. Church, 7 Abbotts' Pr., 305, note. On the other hand, where the re- ceiver's title to the thing in action is not derived through his appointment, but arises from the fact that the con- tract was made with him as receiver, it is not necessary for him to set forth his appointment, but he may sue, simply describing himself as receiver. In such case, to an answer denying that the de- fendant is indebted to him individually, and alleging that the note described in the complaint belongs to a receiver, he may reply that he is the same receiver. The answer in such case, to be suffi- cient, ought to aver that the receiver whom it alleges to be the holder of the note was a different person from the plaintiff. White v. Joy, 13 N. T. |3 Eern), 83 ; reversing S. C, 11 now. Pr., 36. {n) The complaint should show dis- tinctly that the plaintiff sues in his of- ficial character. (o) This form is from Edw. on Rec, 383. In Campbell fl. Foster, 16 Row. Pr., 375, it was held that the complaint of a receiver appointed in supplementary proceedings under section 393 of the Code, which did not allege that any ex- ecution was issued, &c., in the proceed- ings in which the plaintiff was appoint- 136 ABBOTTS' FOEMS. Allegations of Appointment of Eeoeiver. III. That thereafter, and before the comtnencement of tlie present action, he gave his bond required by the said order, as such receiver, approved by the said justice, which bond, with such approval, are on jSle in the said Court, and were so there prior to the commencement of this action. 209. Another Form, setting forth the Proceedings at Length, {p) I. That ]Sr. B. and L. S., of Albany, survivors of A. C, de- ceased, in an action brought by them in the Supreme Court of this State against H. H., obtained judgment against the defend- ant in that action, on, &c., for the sum of, &c., which judgment for the said sum was entered by the clerk of the county of , on the day last aforesaid, and the roll filed and judgment docketed in said clerk's office on that day ; that said defendant then resided, and still resides in the county of ; that a transcript of said judgment was filed, and judgment docketed in the clerk's office of the said county of , on, &c. II. That on, &c., an execution therefor was duly issued by plaintiffs attorney to, and delivered to the sheriff of said county of , commanding him to make said, &c., with interest from, &c., and make return of his doings in the premises ; that said sheriff afterwards, and on, &c., returned said execution to the office of the clerk of the county of , witli his re- turn thereon indorsed, showing the execution wholly un- satisfied. III. That afterwards, and on, &c., the plaintiff in said action, caused an affidavit to be made, setting forth the above facts, as ed, was bad on demurrer. The court party suing from costs, &c. ; but the would not presume that execution was omission to obtain it is a matter of prac- issued, and that the defendant resided tice. Even where the statute forbids a in the county where it was issued ; and suit without leave, — e. g., upon a judg- this was essential to the plaintiffs au- ment of a court of record within five thority. But the contents of the plead- years, — ^leave is not one of the facts ing are not stated, in the report. The constituting the cause of action ; and above form is authorized by section 162 the proper remedy for neglecting to ob- of the Code, providing a short form for tain it is by motion, not demurrer, pleading judgments, &c. Finch v. Carpenter, 5 Abbotts' Pr., 335. Leave to sue need not be averred. {p)1:lii\afoToa.iafvoTa.McCall's Forms,' It should be obtained to protect the 370. COMPLAINTS. 157 Allegations of Appointment of Eeceiver. to obtaining said judgment, the filing of transcript, the issuing and return of said execution, and that the said judgment remained wholly unsatisfied, and presented the same to Hon'. , one of the justices of the Supreme Court, on the same day, who thereupon, and on, &c., made an order requiring said judgment- debtor to appear before H. S., Esq., referee thereby appointed, at the ofiice of the said H. S., in, &c., on, &c., at o'clock in the noon, to make discovery on oath, con- cerning his property ; and said H. P., by said order was further forbidden to transfer, dispose of, or in any manner dispose of, or interfere with any property, moneys, or things in action be- longing to him until further order in the premises. lY. That said order was personally served on said defendant, on the same day, and said defendant appeared before said referee at the time and place in said order specified, and sever- ally submitted to an examination under oath, making discovery as to this property ; which examination was on the same day, by said referee, certified to said judge, who thereupon, by an order, appointed S. M., of, &c., this plaintiff, receiver of all the debts, property, effects, equitable interests, and things in action of said H. P., and further ordered that this plaintiff, before entering upon the execution of his trust, execute to the clerk of this court a bond, with sufficient sureties to be by said judge approved, in the penal sum of , conditioned for the faithful performance and discharge of the duties of such trust, and that this plaintiff upon filing such bond in the ofiice of the clerk of the county of , be invested with all rights and powers as receiver according to law. Said H. P. was therein and thereby enjoined and restrained from making any disposition of, or interfering with his property, equitable inter- ests, things in action, or any of them, except in obedience to said order, until further order in the premises. Y. Plaintiff further says, that on, &c., he executed a bond with sureties, as required by said order and the rules and prac- tice of this court, which was approved by said justice, and filed n the office of the clerk of the county of, &c. [Allege cause of aoUon.] 158 ABBOTTS' FORMS. Allegations of Appointment of Receiver. _210. AppointTnent Pending Litigation. [Title, cfec, as above.] II. That on the day of , 18 , at the city of New York, in an action then pending in the Court of Com- mon Pleas for said city, wherein M. N. was plaintiif and 0. P. was defendant, upon an application made by said M. N., and by an order or determination duly made by said court, this plaintiff was appointed receiver of the property hereinafter de- scribed. III. [As in I^orm 208.] 211. Heceiver of Dissolved Corporation, {q) [Title of the cause.] The plaintiff, complaining as receiver of the Com- pany, alleges : [Set forth cause of action accruing to the corporation.] {r) II. That on the day of , 18 , at , upon an application made upon occasion (.s) of the insolvency of the said Company [or, upon occasion of the voluntary dissolution of the said Company], and by an order or determination by the Supreme Court in and for the county of , the plaintiff was appointed receiver of the prop- (q) As to the cases in whicli a receiver receiver. If the change of name was may sue in his own name and without by a reorganization of the company un averring his appointment, see Wliite v- der the general act, a, general averment Joy, 13 W. Y. (3 Kern.),,83 ; reversing of the fact of reorganization is enough. S. C, 11 Sow. Pr., 30 ; Bank of Niag- Hyatt ». McMahon, 35 Barb., 457. ara i). Johnson, 8 Wend., 645 ; Haxtun (s) The occasion of the dissolution 1). Bishop, 8 Id., 13. should be shown. Gillet v. Fairchild, (r) Where a plaintiff claims title to 4 Den., 80. a note sued on by virtue of his appoint- The objection, that a plaintiff suing ment as receiver of an insurance com- as receiver of a corporation does not pany, the note being payable to a com- show that his appointment was found- pany bearing a name different from ed on a petition, does not apply where that of the company of which he is re- the receiver was appointed on con- ceiver, it is necessary that he should, sent of the corporation, in an action by proper averments, show that the brought under 2 Sev. Stat., 468, $5 40 note is a part of the assets of the com- Tuckerman B. Brown, 11 AUbotta' Pr pany of which he has been appointed 389. COMPLAINTS. 169 Allegations of Appointment of Becelver. erty, and effects, and things in action of the Baid Com- pany, pursuant to statute. III. [As in Form 208.] 212. The Sa7ne, Another Form, (t) John F. Butterworth, as receiver, &c., of the Island City Bank, a corporation located in the city of New York, and in- corporated under and by virtue of an act of the Legislature of the State of New York, entitled " An Act to authorize the Busi- ness of Banking," passed April 18th, 1838, and of the several acts supplemental or amendatory thereto, the plaintiff in the above-entitled action by this his complaint respectfully shows to the court and avers : First, That by an order of the Supreme Co^^rt, made at a special term thereof, held at the new City Hall of the city of jSTew York, on the twenty-iifth day of Septembei-, 1857, before Justice Peabody, said plaintiff was, pursuant to an act of the Legislature of the said State, entitled "An Act to enforce the responsibility of stockholders in certain banking corporations and associations, as prescribed by the Constitution, and to pro- vide for the prompt payment of demands against such corpora- tions and associations," passed April 5th, 1849, duly appointed receiver of all and singular the property and effects ot the said Island City Bank, which said bank had therefore been declared insolvent under said act, with all the powers, and subject to all the duties of receivers in such cases. (t) This is the form of the complaint 187 ; S. C, 7 Abbotts' Pr., 456 ; 16 How. in Butterworth v. O'Brien, 38 Barb., Pr., 503 ; affirmed, 23 N. T., 375. 160 ABBOTTS' FORMS. Analysis of Chapter. Section II. COMPLAINTS IN ACTIONS FOR MONEY LENT, PAID, HAD, AND EECEIVED, ETC. I. Money lent. 313. Lender against borrower p. 161 214. On an account by assignee of lender against borrower 163 IL Money paid 215. By one having paid money to a third person at defendant's re- quest 165 216. By one having paid the debt of another, to be repaid on de- mand 166 217. By one having paid the debt of another, to be repaid on a day certain 166 218. By maker of accommodation note, having paid it ...'.. 167 219. By acceptor without funds, against drawer 167 220. By indorser of note, having paid a part 168 221. By stock-brolters, for money advanced on account of their pijn- cipal 168 222. By landlord, having paid tax which tenant had agreed to pay. . 169 223. By surety on lease, against principal 170 224. By surety against principal, for money paid on undertaking on appeal 171 225. The same, for debt for goods sold, and costs of judgment there- on paid by surety 172 226. By one of two joint makers of a note, having paid it, against the other, — for contribution 172 nj. Money received. 227. Common form 173 228. Against agent, for money collected 174 229. To recover back wages 175 230. Short form, for money received contrary to statute 175 231. For money overpaid by mistake 175 232. For repayment of advances on a contract for services, unful- iUled 176 233. For repajonent of a deposit on a contract for purchase of real estate, unfulfilled 177 234. By pledgor of a note as collateral against the pledgee, the note having since been collected by the pledgee ; — to recover, its excess over the amount of the debt 179 235. By assignees against the pledgees of a debtor who had hypothe- cated a mortgage as collateral to notes on which he was jointly liable, the mortgage having since been collected by the pledgees ; — to recover its excess over the amount due on the notes, and to have the notes delivered up 179 236. For repayment of a judgment paid and afterwards reversed . . . 181 237. By owner of goods against common carrier, to recover back ex- cess of freight exacted 182 238. Against factor, for price received for goods sold 183 COMPLAINTS. 161 Allegations of Time and Place. 239. Against factor, under del credere commission p. 184 240. Against note-broker, for proceeds of note discounted '. 185 241. By an assignee, to recover oflBcial fees, received by one who had usurped the assignor's office 186 I. Monet Lent. 213. Lender against Borrower. I. That on the twentieth day of October, 1857, at the city of Rochester, [a) the plaintiff lent to tlie defendant (5) the sum ot (a) The language of the books is that every material fact must be stated with certainty ; and this means par- ticularity with respect to the details of the fact alleged, sufficient to distin- guish it from any other similar fact. For instance, in the above form, the statement of the time and the place of making the alleged loan could not be omitted without rendering the allega- tion uncertain according to the use of that terrd at common law, since it would not then fully describe the transaction it had reference to. The details^ which were thus held essential to be stated are, however, in themselves often immaterial, — ^that is, matters of description merely, for the purpose of identification, and not matters of sub- stance which may affi)rd ground for an issue. If, for instance, the defendant should answer in this case, that he denied that he ever borrowed any money from the plaintiflf" at Kochester, his answer would be frivolous. Under the old practice, it was cus- tomary to state incidents of time, place, quantity, &c., under a videlicet, — e. g., " that heretofore, viz.,'' as it had been said by good authorities that the omis- sion of a mdelicet will render it neces- sary to prove such matter precisely as laid, even though it was immaterial. But even then the better opinion was, that the use ot a videlicet did not make that immaterial which would other- VOL. I— 11. wise have been material ; and on the other hand, that the omission of the videlicet did not make that material which would otherwise have been im material. 1 Chit. PI., 377, note m, and cases there cited ; 3 Campb.. 307 ; 1 Saund., 170, note 2 ; Vail v. Lewis, 4 Johns., 450 ; Gleason v. McVickar, 7 Cow., 43 ; Ladue v. Ladue, 16 Verm., 189. The Code provides that " when the allegations of a pleading ai^ so in definite and uncertain that the precise nature of the charge or defence is not apparent, the court may require the pleading to be made more definite and certain, by amendment." Code, % 160. It may be said that in general under the new practice both in England and in this country, the common-law rule, that time and place must be averred of every material or traversable fact, is abrogated. If time, in itself, is mate- rial it ought to be stated ; but where the only materiality of it is to sliow that one fact occurred after another one, it is sufficient to state that the one was subsequent. And where the allega- tion of time is wholly omitted, if the adverse party is really embarrassed he may move to have the pleading made more definite and certain on showing how he is prejudiced. When, how- ever, the precise time is material to be proved, for instance in the case of a notice of demand and non-payment of the note to charge the indorser, or in 162 ABBOTTS' FORMS. Common Complaint for Money Lent. dollars, on condition that it sliould be repaid [with interest] upon demand (c) [or, repaid on the . day of , 18 J. II. That thereafter and before this action [or, on the day of ,18 ], (cZ) the plaintiff duly demanded (e) payment of the same from the defendant, but no part thereof has been paid (_/") [or, if any payments have ieen made, no part thereof tlie case of tlie period for ivMch alleged usurious interest is reserved, it must be stated, and truly stated. (See, also, on tills subject, Bwan on PI., 138 ; Castro «. Wetmore, 16 Cal., 379.) This is a simple and convenient rule. The pleader must allege the material facts, and the mere circumstances of time and place need not be stated except where the omission would leave the pleading such " that the precise nature of the charge or defence is not ap- parent ;" and even in such case a de- murrer ought not to be sustained ; but the party aggrieved by the uncertainty must move to compel an amendment. There seems no reason for using the videlicet under the Code, except as sometimes a. concise way of indicat- ing a lack of positive knowledge re- specting the time, sum, or name men- tioned. (&) Wherever a request is essential to the defendant's liability, it must be averred. Spear v. Downing, 34 Barb., 522 ; S. C, 12 Abbotts' Pr., 437. Mr. Greenleaf states that a request is material to be proved in this action (3 Greenl on, Ev., 93, § 107) ; but we omit the separate statement, " at his request," upon the authority of the recent case of Victors v. Davis, 1 Bowl. & L., 984. Upon principle, it seems un- necessary to aver request in an action for money lent, for the reason that a request is implied in the very idea of a loan, although it is necessary to prove a request, in order to constitute a loan. And see Brown v. Grarnier (6 Taunt., 389; S. C, 1 Eng. Com. L. R., 421), where it was held that " hired" implies a request ; and Emery v. Fell (3 T. P., 28), and Glenny i>. Hitchins (3 Code P., 56 ; S. C, 4 How. Pr., 98), where it was held that " sold and delivered" imply a request. (c) It is not necessary to state when the debt was to be repaid except for the purpose of fixing a date for interest. The presumption of law is, that it was to be paid immediately. Peets v. Bratt, 6 Barb., 662. Nor is it necessary to show that the debt had become payable at the commencement of the action. If it had not, that is matter of defence, to be set up in the answer. Smith ®. Holmes, 19 N. T., 271 ; Maynard v. Talcott, 11 Barb., 569. (d) The time of demand will only be material where interest commences to run therefrom. (e) Where a special request Is necessary to be averred, the general aIleg9,tion of " though often requested" is not enough. Bush v. Stevens, 34 Wend., 256 ; Whitton d. Whitton, 38 N. H., 127. Though the defect was cured by verdict even at common law. LefBngwell v. White, 1 Johns. Gas., 99. But an allegation thkt he " refused, &c., though then and there particularly requested so to do," is a sufSciently explicit allegation of a request. Super visors of Allegany v. Van Campen, 3 Wend., 48. (/) The allegation of non-payment Is usual, but perhaps may not be essen- tial. Compare Lanning «. Carpenter, 20 N. T., 458 ; McKyring c. Bull, 16 Id., 397. COJfPLAINTS. 1C3 Admitting Payments. has been paid, except — state briefly the total of pcnjme7its],{g) and. the defendant is now justly indebted therefor to this phiin- tiif in the sum of dollars, with interest, from the 20th day of October, 1S5Y [or, if it was to he repaid on demand, claim interest from the day of demand^ 214. On an Account, hy Assignee of Lender against Bor- rower, (h) I. That on the day of j 18 , at the city of , (i) the defendant was indebted to one M. N., in the sum of dollars on an account (J) for money lent (g) The plaintiff need not state pay- 300 ; Tucker v. RushtOD, 7 JSF. T. Leg. snents made on account of the claim in 06s., 315 ; S. C, 3 Oode R., 59 ; Graham suit, but may declare upon the original ?). Camman, 5 Duer, 697. cause of action entire, and leave defend- (i) This is a sufficient statement of ant to show his payments by way of the place, where the payments in the defence. The spirit of the Code, how- account mentioned were made. Emery over, requires parties always to plead ®. Fell, 2 T. B., 28. truthfully; and there is a necessity to do ( j) We think the practitioner should so, wheie the complaint is to be verified, be somewhat cautious how he employs It is usual to deny payment before suit this general form of complaint, except brouo-ht; and he cannot do tliis under in cases where the items of the claim oatli, as to the whole claim, where part- are embraced in an account. The case payments have been made. In such case of Allen v- Patterson, 8 If. T. (4 Scld), he should briefly state what amount has 476, decided simply that a demurrer, been paid, not because it is necessary to on the ground that the complaint did anticipate the defence, or to state the not state facts sufficient to constitute a nayments as entering into the statement cause of action, would not lie to a com- of his cause of action, for it is not (Van plaint merely alleging—" that the de- Demark i>. Van Demark, 13 How. Fr., fendant is indebted to the plaintiffs in 372; Giles )A Belts, 15 ^Wotts' A-., 285), the sum of, &c., on an account, &c." but to enable him to deny payment as But the question whether a motion to the balance; and to prevent defend- against this complaint, on the ground ant from answering. But defendant may that it was indefinite and uncertain, then prove payments under a general would lie, was left wholly untouched. denial. Quin v. Lloyd, 41 jV. Y,. 34t). ' That question was presented in Cud- (A) This form is supported by Cud- lipp «• Whipple, 1 Abbotts' Pr., 106, Upp V. Whipple, 1 Abbotts' Pr., 106 ; which was an action by assignees of a and Allen v. Patterson, 7 iV. Y. (3 8eld.), demand upon an account. The allega, 476 ; Freeborn v. Glazier, 10 Oal, 337. tionsof the complaint in relation to the DeWitt «. Porter, 18 Id., 171; Beek- demand, were,— "that the defendant man v. Platner, 15 Barb,, 550 ; Merwin was indebted, cS:c., in the sum of, &c.. c. Hamilton, 6 Buer, 244; Second feeing a balance of an account duo Avenue E. K. Co. v. Coleman, 24 Ba/rb.. from said defendant to said W., on an 164: ABBOTTS' FORMS. Assignee on an Account for Money Lent. by said M. N. to said defendant, and for money paid, laid out, and expended by said M. N. to and for the use of said defend- ant, and at his request. II. That thereafter said M. IST. duly assigned {k) said indebted- ness to this plaintiff, of which the defendant had due notice, but no part of the same has been paid, and there is now due and payable to this plaintiff, thereon, from the defendant, the sum of, &c. account for money lent by said W. to said defendant, and for money paid, laid out, and expended by said W. to and for tlie use of said defendant, and at Ms request." On defendant's motion to make the complaint more definite and certain, the court held that the action being upon an account, the rem- edy of defendant for any lack of fulness in details furnished by the complaint, ivas not by motion, as sought, but by demanding a copy of the account referred to ; under the provisions of section 158 of the Code. Neither of these cases are authorities for the position that this form is suffi- ciently definite and certain, in an action not upon ah account. And the result of the cases would seem to be, that where the action is not on an account, this complaint may be obnoxious to a motion to make it more definite and certain, if defendant is prejudiced by its want of particularity. Eno v. Wood- ward, 4 N. T. (4 Cmnst), 249 ; Blan- chard v. Strait, 8 How. Pr., 83 ; Wood V. Anthony, 9 Id., 78 ; Chesborough v. N. Y. & Erie E. R. Co., 13 Id., 557 ; Graham v. Cammau, Id., 360 ; Hall v. Southmayd, 15 Barb., 32. But it is not necessarily obnoxious to such a motion. Adams «. HoUey, 12 jBomi. Pr., S?'J ; Dows ®. Hotchkiss, 10 N. T. Leg. Ohs., 381. An account for various items may be alleged as a single cause of action, though the items accrued at different times ; and an averment of a promise is not necessary in order to avoid the objection of duplicity, but is redundant. Dows ?). Hotchkiss, ION. T. Leg. Ohs., 281. We regard this as the true rule, and it is further supported by the cases above cited, though the contrary was held in Acome i). American Mineral Co., 11 Emo. Pr., 34. Where the action is for a legal rem- edy in distinction from equitable relief, items wliioh accrued to him in his own right should be stated as a separate cause of action from such as came to him by assignment under the Code, and for which, before the Code, he coukl not sustain an action in his own name : and in case he wishes to include causes of action assigned to him by different persons, there should be a count for each of such classes. But if the action be in fact for an accounting, it may be treated as one cause of action of an equitable nature, and stated according- ly. Adams «. Holley, 13 How. Pr., 326. (K) In a complaint seeking to set off a judgment held by the plaintiff as as- signee, against one recovered by de- fendant against the plaintiff, the time of the assignment is stated with suffi- cient definiteness if it is said that the j udgment against the plaintiff was re- covered after the assignment. An alle- gation that the third person " assigned, sold, and set over to the plaintiff the said judgment," sufficiently alleges an absolute assignment, and the consider- tion for the assignment need not be stated. Martin «. Kanouse, 3 Abbotts Pr., 330. COMPLAINTS. 165 Implied Promises. II. Money Paid. (Z) 215. By One having paid Money to a Third Person at Defendants Request. I. That on the day of , 18 [at j, at the re- quest of the defendant, the plaintiflr" paid to one M. N. dollars. II. That in consideration thereof, the defendant promised to repay the same to the plaintiff [on demand], [iri) III. That [on the day of , 18 , the plaintiff de- manded payment of the same from the defendant, but] he has not repaid the same, (n) (l) A partner against whom a judg- ment is recovered in an action for an accounting, and who is subsequently compelled by legal process to pay part- nership debts, to an amount equal to the sum remaining unpaid upon the judgment, cannot maintain an action against his former partners to have the amount paid by him ascertained, and allowed to liim as payment on the judg- ment. He can obtain relief, it seems, only by a bill of review, or supplemen- tal bill in the nature thereof. Hayes V. Eeese, 34 Barb., 151. (m) Implied promises need not be al- leged in pleading under the Code. It is sufficient to state the facts from which the law infers a liability or implies a promise ; for these are the facts consti- tuting the cause of action. Parron v. Sherwood, 17 iT. Y., 227 ; Jordan & Skaneateles Plank-road Co. v. Mosley, 23 Id., 553 ; Byxbie v. Wood, 24 Id., 607 ; Swan's PI, 174 ; and see, also. Berry v. Fernandez, 1 Bine/., 338 ; Dun- ford V. Messiter, 5 M. d 8., 446. If there was an express promise, it should be alleged as in the form above; but if not, that allegation may be omitted, and the object of the payment may be briefly stated, so far as neces- sary to complete the facta upon which the law implies a promise. (n) No demand is necessary for the purpose of fixing a date for the com- mencement of interest. Interest should he claimed from the day when it is due, as follows : Where money is expended by plain- tiff on an understood condition that de- fendant would pay the principal on de- maud, and demand was made, — from the date of the demand. Where money is expended on such condition, but there was 710 demand, — from the date of the commencement of the suit. Where money is expended on a promise to repay it at a particular time though without mention of inter- est, and though no demand was made, — from the date when payment became due by the promise. Where money is expended on a promise to repay it with interest, — from the date of the expenditure. 166 ABBOTTS' FORMS. Complaints for Money Paid. 216. By One having paid the Debt of Another, to he Repaid on Demand. I. That on the day of > 18 ? [at ,] tliis plain- tiff paid to the use of the defendant, at his request, (o) and on condition that the same should be repaid ou demand, the sum of dollars, in paying, to one M. N. one quarter's rent of the house then occupied by the defendant (jp) \or, otherwise show what the debt was], II. That this plaintiff, on the day of , 18 , at , duly demanded {q) payment of the same fi-om the de- fendant, bilt no part thereof has been paid [or, no part thereof has been paid, except — amount of payment made, if any]. 217. By One homing paid the Debt of Another, to be liepaid on a Day Certain. I. That on the day of , 18 , at , this plain- tiff paid, to the use of the defendant, and at his request, the sum of dollars, in paying to one M. IST. the amount of a promissory note made by the defendant. II. That defendant promised to repay said sum [with inter- est] to tliis plaintiff on the day of , 18 , but has not paid any part thereof [except, &c.] (») An averment of request is neces- lars of the debt alleged to liave been sary in a complaint for money paid, paid ou his behalf, in order that he laid out, &c. See 3 Oreenl., E\>., 93, might identify it with that which he § 107, and note. The request may be requested the plaintiff to pay, and as- implied or express. As to the cases in certain whether it was in truth paid, which it will be implied, see Id., 103, Chesborough v. N. T. & Erie R. R. Co., g 114. 13 How. Pr., 557. If it be only implied, the facts rais- In general the plaintiff should, as ing it may be alleged; instead of aver- fully as he can, distinguish the claim ring it as if it were express. See sub- from others that may have existed sequent forms. against the defendant. Where the {p) The above complaint might be circumstances of the payment are pre- ' good on demurrer if the words descrip- sumably within the defendant's own tive of the claim against the defendant knowledge, less detail will be necessary which was paid off by plaintiff, were than in other cases ; — e. g., where a note omitted. But it would be obnoxious to ^ made by defendant is paid, a very gen a motion to make the complaint more eral description of the note will be suf definite and certain, if the defendant ficient. needed to be informed of the particu- (g) The commencement of the suit COMPLAINTS. ir. For Money Paid on Notes, and Bills, 218. By Maker of Accom.modation Note, having paid it. {r) I. That on the day of , 18 , at , the plain- tiff made and delivered to the defendant his promissory note, of ■which the following is a copy : [or, state its legal effect, as in Form 220]. II. That the plaintiff never received any consideration there- for, but it was an accommodation note, made and given to the defendant, at his request, and upon his promise that he would pay it at maturity. m. That as the plaintiff is informed and believes, the de- fendant thereafter and before its maturity negotiated it for value. IV. That he failed to pay it at maturity, and that the plain- tiff was thereupon compelled (s) to pay it ; and did on the day of , 18 , at , pay it, and that no part of the same has been paid to the plaintiff. 219. By Aooeptor without Funds, against Drawer. I. That the defendants on the day of ,at , be- came indebted to him for moneys advanced by him, and by him paid in taking up a certain draft drawn by the defendants, by tlieir firm-name of X. Y. Z. & Co., bearing date on the day of , whereby they requested this plaintiff days after date to pay to one M. N. tlie sum of dollars. II. That the plaintiff duly accepted said draft, and paid it at maturity, without funds of the defendant in his hands to meet the same; and that no part of the same has been repaid by the defendants. IS a sufficient demand, except lor the («) If tlie accommodation maker was purpose of recovering interest where sued, insert here, "by suit . brought there was no promise to pay interest, against him by M. N., the holder, in or to pay the principal at a particular the Court." Packard v. Hill, 7 Gow.. time. 443. He may recover the costs of suit, (r) An accommodation maker or in- unless it was evident that he had no dorser is a surety, and may sue as such defence. Parsons' Merc. L., 93, and to recover payments made by him. note; Stratton «. Matthews, 12 Jur., Baker ■». Martin, 3 Ba/rb., 634 ; Neafls v. 924 ; Baker v. Martin, 3 Barb., 634, Mercer, 15 Id., 318. and cases there cited. 168 ABBOTTS' FORMS. Complaints for Money Paid. 220. By Indorser of Note, homing paid a Part, {t) I. That on the day of , 18 , at , the defendant made and delivered to this plaintiif his promissory note, whereby he promised to pay to the order of the plaintiff, days after date, the sura of dollars, for value received [or, set out copy of the note, as in Form 218]. II. That thereafter, and before maturity of said note, the plaintiff indorsed it and negotiated it for value. III. That at the maturity it was duly presented for payment to the defendant [c;r, allege excuse for non-presentment'], but was not paid, whereof the plaintiff had due notice, and that there- after this plaintiff was compelled to pay, and on the day of , 18 , at , did pay, to one M. N., the holder of said note, on account of the amount due thereon from the defendant, the sum of dollars.- No part of which has been repaid to the plaintiff. 221. By Stoch-'broTcers^for Money advanced on account of their Principal, (m) I. That the plaintiffs are partners, doing business in the city of New York as bankers and brokers, under the firm-name of W. S. & M. {v) II. That as stock-brokers, on or about the day of , 18 , they purchased for and on account of the defend- ■ ant, and at his request, the following stocks : [designating the stocTcs and prices] ; said stocks to be paid for by the defendant (i) Wiere an indorser has paid up Wend., 369 ; Pownal v. Ferrand, 6 the whole of a note and become the Ba/mw. & G., 439 ; S. C, 13 Bag. Com. legal owner of it, lie can either sue the L. S., 230 ; Bater i}. MartiL 3 Barb., maker or the prior indorser, or both, 634; Dygert «. Gros, 9 Id., 506. It on the note. Or perhaps he can sue seems that separate prior iadorsers can either one for money paid, &c. Baker not be joined as defendants in such an V. Martin, 3 Barb., 634 ; Wright v. But- action for money paid, &c. Barker v. ler, 6 Wend., 390. But where he has Cassidy, 16 Id., 177. only paid it in part, he must sue for (u) This form Is sustained by White- the amount actually paid, as for money house v. Moore, 13 Abbotts' Pr., 142. paid to the use of the maker or prior (d) This is a material averment in indorser. Wright i>. Butler, Id., 284 ; this action See Hearne v. Keene, 5 affirming S. C, 20 Johns., 367 ; and 3 Bo.^w.. 584 COMPLAINTS. 169 For Money Paid on Purcliase of Stocks. On Tax. at the expiration of thirty days from tlie day of purchase, with the right to the defendant to paj'' for said stocks at any time before the expiration of said thirty days, should he so elect. III. That it is the custom of brokers in such cases to pur- chase the stocks in their own names, without disclosing the name of their principal ; and in case of the failure of the prin- cipal in paying the purchase-money, to resell the stocks with- out notice to or demand upon him or tendering him the stock, and to charge him with the deiiciency and their commissions, which custom the defendant then well knew, {w) IV. That according to said custom, the plaintiffs purchased said stocks in their own names, and without disclosing the defendant's name. Y. That on or about the day of , 18 , the defendant paid to the plaintiffs, on account of the said pur- chase of stock, dollars. YI. That at the expiration of the said thirty days, the defendant having failed to pay the balance due for said stocks, the plaintiffs, being liable therefor, paid for the same, and to reimburse themselves did, in accordance with the custom of brokers in such cases, without notice to or demand upon the defendant, or a tender to him of said stocks, sell the same on his account, at \_stating the price, it being below cosf\. YII. That there is now due and payable to the plaintiffs from the defendant, on account of the said purchase of stock, the sum of dollars, together with the sum of dollars for commission for the purchase and sale of said stocks. 222. By Landlord, having paid Tax (as) which Tenant had agreed to pay. I. That at , on or about the day of , 18 , the plaintiff and the defendant entered into an agreement, of (m) It is better to set forth, thus the had demanded payment of the price, nature of the custom, than merely to and had transferred or offered the allege that what plaintiffs' did was in stocks to his principal. Merwin v. accordance with a custom of brokers ; Hamilton, 6 Duer, 344. but adding that defendant knew it is (x) In an action brought by a widow, not essential. Whitehouse v. Moore, to whom a life-estate in certain parts oi mipra. Unless such a custom is al- a house have been assigned as dower, leged, the plaintiff must aver that he against the owner of the fee, to recov- 170 ABBOTTS' FORMS. Complaint for Money Paid by Surety. which the following is a copy : [set forth agreement or lease, or say, an agreement by which the defendant hired of the plaintilf a house in , and farther agreed, &c., reciting stipulation to pay tax}. n. That there was duly laid upon said premises for the year 18 , and while the covenants of the aforesaid agreement were in full force, and the defendant was in possession of the premi- ses by virtue thereof, a tax of dollars, which the defend- ant neglected to pay [and that said plaintiffs were not aware, until on or about the day of 5 18 , of such neglect]. III. That by reason thereof the plaintiff was, on the day of , 18 , compelled to pay the said sum of dollars, with dollars arrearages of interest, amounting in the whole to dollars. lY. That no part thereof has been repaid. 223. By Surety on Lease, against Principal. I. That on or about the day of , 18 , the defendant entered into an agreement in writing with one M. N., of which the following is a copy ; {setting it forth. Or say, an agreement in writing, whereby he hired of M. N., the house, designating it, for the term of , and agreed to pay there- for, to the said M. N., the rent of dollars in equal quar- terly instalments]. II. That at the request of the defendant, the plaintiff made and delivered to the defendant his guaranty thereon, in writing, of which the following is a copy : [setting it forth. Or say, his guaranty thereon, in writing, whereby, in consideration of one dollar, the plaintiff guarantied the faithful performance on the part of defendant of the said agreement]. er a sum averred to be his fair propor- more definite and certain. Graham ». tion of taxes, &c., upon the whole prem- Dunnigan, 4 Abbotts' Pr., 426 ; S. C, 6 ises, paid by her to protect her estate BiKr, 639. under his neglect, no averment of re- Upon a lessee's breach of his cove quest or promise is necessary. The law nant for the payment of taxes, the les- implies it. Omitting to state what part sor's right of action is perfect without of the premises are in defendant's pos- a previous demand of the tenant of the session, or that any specified portion is payment of such taxes, or of the re- in his possession, does not render the payment to the lessor, if he has paid complaint demurrable, but at most ob- them for his tenant. Garner v. Han- noxious to a motion that it be made nah, 6 Duer, 263. COMPLAINTS. 171 Money Paid on Guaranty. On Undertaking on Appeal. III. That the defendant delivered said agreement and guar- anty to M. N., and thereupon, and in consideration thereof, ob- tained and had possession of said premises, pursuant to said agreement, whereby the defendant became liable to the said M. N. for the rent therein named, (y) TV. That a portion of it, to wit, the instalment of dol- lars, which became due on the day of , 18 , the defendant failed to pay. Y. That the plaintiff was compelled to pay, and did pay on the day of , 18 , at , to the said M.. JST., at his request, and to the use of the defendant, the sum of dol- lars, being the aforesaid sum, with interest, and that no part of the same has been repaid to the plaintiff. 224. £y Surety against Principal, for Money paid on Undertaking on Appeal. L That on the day of , 18 , one M. IST. recovered in the Court of a judgment duly given against the defend- ant for dollars [or, for the possession of specific ])roperl-y, &c.], from which the said defendant appealed to tlie Court of Appeals [or, other court]. II. That on the day of , 18 , at the request of the defendant, the plaintiff executed an undertaking, a copy of which is hereto annexed, or whereby he undertook [^reciting the obligation]. lil. That on the day of , by the said [appellate] court, the said judgment was affirmed, with dollars costs and damages. IV. That on the day of , 18 > the plaintiff paid dollars upon the said undertaking, to the said M. JST. No part of the same has been repaid to him. {3/) The defendant's legal liability to an express promise by defendant to re- pay the debt which plaintiff has paid, pay the plaintiff. 3 Oreenl. on M>., 103, is an essential fact in an action to re- § 114, n. cover the money paid, unless there be 172 ABBOTTS' FORMS. Complaints by Sureties for Money Paid. 225. By Surety against Principal, for Debt for Goods sold and Costs of Judgment thereon, paid hy Surety. I. Tliat on the day of , 18 , at , the plaintiff, at the request of the defendant, bought of one M. IS^., to be hj him delivered to the defendant and to his- nse, certain goods, viz. : of the value of dollars, which were thereafter de- livered to the defendant, but he failed to jjay for them. II. That on the day of , 18 , in an action brought to recover from the plaintiff the price of said goods, said M. N. recovered judgment, which was duly given {z) by the Court of county against the plaintiff, then defendant, for the sum of dollars, being the amount of said price, with interest and costs. III. That the plaintiff was compelled to pay on the day of , 18 , at , and did pay to said M. JST. the sura of dollars, being the amount of the said judgment (a) and interest thereon ; and that no part of the same has been re- paid to him. 226. By One of two Joint Makers of a Note, having paid it, against the Other, for Contribution. I. That on the day of , 18 , at , this plain- tiff and the defendant made and delivered to one M. N., their joint [or, joint and several] promissory note, in writing, of which the following is a copy : [or, whereby, &c., as in Form 220]. II. That at the maturity of said note the plaintiff was com- pelled (5) to pay and did pay the same ; and no part thereof has been repaid to him. (o) (?) This is sufficient even if the judg- sons' Merc. L., 39 ; Baker v. Martin, 3 ment was in an inferior court. Code, Barb., 643. In this State his right is §161. established by statute. Laws of 1858, (a) It is not settled in what cases 606, ch. 314, § 3. the surety may recover costs paid by (6) The payment must be compulso- Mm in defending himself. His right ry to entitle the payer to contribution ; against the principal seems less doubt- but this does not mean that there must ful than that against a co-surety. See be a suit, biit only a fixed and positive 1 Pa/raons on Cont, 38, note /; Par- obligation. 1 Parsons on Cant., 33 COarPLAINTS. 173 Demand tefore Suit. in. Monet Received, (d) ■M Common Form, [i) I. That on the day of , 18 , at [or, at sundry times between the day of , and the day of , at J, the defendant received from one M. IS". \or, received from the plaintiff, and as his agent, or, otherwise] the sum of dollars, to the use of the plaintiff. II. That thereafter, and before this action, the plaintiff de manded payment thereof from the defendant. (/") Peck n. IngersoU, 7 N. Y. (3 SeU), 528. (c) This form is supported by Van Demaik v. Van Demark, 13 Sow. Pr., 373. (d) In an action for tortious taking and sale of personal property, tlie com- plaint may be simply for tlie money received, or for goods sold. The plain- tiff may waive the tort, and his plead- ing need not show how the money came to defendant's hands. Harpeu- ding v. Shoemaker, 37 Barb., 270. Com- pare Byxbie «. Wood, 34 N. Y., G07. A claim to rents and profits of real estate, turning on a question of title, cannot be recovered in an action alleg- ing merely money received. Carpen- ter V. Stilwell, 3 Abbotts' Pr., 459. (e) This form is supported by Betts XI. Bache, 14 Abbotts Pr., 370 ; Second Avenue E. E. Co. ■». Coleman, 34 Barb., 300. It is sufficiently definite and cer- tain. The defendant, if ho wishes more, must seek a bUl of particulars. Sloman v. Schmidt, 8 Abbotts' Pr., 5. (/) Where defendant, having receiv- ed money to'the use of another, is right- fully in possession, a demand must be alleged in the complaint. Eeina v: Cross, 6 Oal., 39. According to the usual course of busi- ness, and in the absence of any special agreement, a banker cannot bo sued for money until after the customer has drawn for it, or in some way required its repayment. Downes v. Phoenix Bank, 6 Hill, 397. An action against a stakeholder, to recover money deposited on an illegal wager, may be maintained without pre- vious demand, when the money has been paid over before the action. Euck- man v. Pitcher, 1 N. Y. (1 Comst.), 393. In such an action interest is recover- able from the time of demand, — e. g., from the commencement of the action. Euckman v. Pitcher, 30 N. Y, 9 ; and 13 Barb., 556. A person, not an attorney, who col- lects a note at the request of another, is liable for the amount, after a reason able time, without demand. Hickok 1). Hickok, 12 Barb., 632. In general, an attorney is not lia^ ble to an action for moneys .collected until after a demand or instructions to remit. Beardsley ■». Eoot, 11 Johns., 464 ; Stafford ». Eichardson, IS Wend., 302; Taylor v. Bates, 5 Cow., 376; Eathbun •». Ingalla, 7 Wend., 320; Walradt «. Maynard, 3 Barb., 584. But he may waive the right to a demand. And where an attorney in correspond- ence with his client, denied his lia- bility, and set up a claim against his client to a larger amovmt, — Held, this was a waiver of a demand. Walradt D. Maynard, supra; and see Satterlee V. Prazer, 2 Sandf., 141. 174 ABBOTTS' FORMS. Complaints for Money Received. III. That he has not paid any part thereof [except the sum of dollars], (g) 228. Against Agent, for Money collected. (A) I. That before the dates hereinafter mentioned, the plaintiffs authorized the defendant, as their agent, to -collect and receive [premiums on policies of insurance, policy fees], and other mon- eys for them, for the purpose of remitting and paying over the same to them when collected. II. That said defendant, as such agent, at or about the dates mentioned in the schedule hereto annexed, marked "A," re- ceived, collected, or was otherwise possessed of the several sums of money respectively set opposite said dates, {i) which sums amounted in the aggregate, on the day of , 18 , to the sum of dollars. III. That after deducting all credits due the defendant, there still remains due and owing to these plaintiffs, from said de- fendant, the sum of dollars. IV. That plaintiffs have, since the same became due and payable, demanded payment thereof from him, but the defend- ant refuses to pay over the same. Attorneys practising as partners may leging that all that is essential to make both be sued for money collected, al- Mm indebted has been done, and con- though it was paid to one of them, and sequently that a demand has been has been demanded from him only. made. In such a case the summons is McFarland v. Crary, 6 Wend., 297 ; a sufficient demand ; and if none Trere affirming S. C, 8 Cow., 353. Compare made, the defendant should pay the Ayrault v. Chamberlain, 26 Barb., 83. debt, but not the costs. Second Av- (g) The implied promise to pay is a enue R. R. Co. «. Coleman, 34 Barh., fiction which need not be alleged. Byx- 300. bie 11. Wood, 34 N. T., 607. (i) If the pleader prefers, this allega- (7t) In an action by a corporation, to tion may be more general, merely say- recover funds received by the defend- ing that defendant, as such agent, had ant as their treasurer, if the complaint collected from divers persons divers shows the relation of the parties, and sums, either stating the aggregate or alleges as a matter of fact that defend- asking ' an accounting ; and a bill of ant is indebted, giving a statement of particulars can be obtained only by an the items of moneys received by him, order. West v. Brewster, 1 Bv£r, 647; this is equivalent, on demurrer, to al- S. C, 11 JV. Y. Leg. Oba., 157. COMPLAINTS. 11 5 For Money Eeceived. Short Forms. 229. To recover 'back a Wager. I, That on the day of ,18 , at ', the plaintiff and one M. ]Sr. entered into a wager, depending on the result of the general election in this State in that year, which was then to take place [or, npon the event of a horse-race then about to take place]. II. That while the event upon which said wager was made was still contingent [or, unknown, or, both], the plaintiff deposit- ed in the hands of the defendant, as stakeholder, the sum of , to abide the event of such wager, whereby an action accrued to the plaintiff, according to the provisions of the Stat- ute of Betting and Gaming, (j) 230. Short Form, for Money received contrary to Statute, {k) That defendant is [or, where he is sued as executor or admin- istrator, the defendant's testator was, or, intestate was, before his death] indebted to the plaintiff in the sum of dollars [the sum received, or, value of goods received], whereby an ac- tion accrued to the plaintiff, according to the provisions of the statute regulating the interest on money [or, against betting and gaming, or otherwise stating its suhject}. 231. J*or Money Overpaid by Mistake. I. That heretofore the parties having had frequent dealings with each other, the defendant, on or about the day of , at , rendered tJieir account to the plaintiff, which account set forth an indebtedness of the plaintiff to the defend- ant in the sum of dollars. {}) This form is supported by O'Ma- also, O'Maley «. Eeese, 6 Barb., 658; ley v. Reese, 6 Barb., 658. Wliere the CoUins v. Ragrew, 15 Johns., 5 ; Cole v. wager .is void at common law only, add Smith, 4 Id., 193. This form is deem- averment of demand, in the place of ed sufficient mider the Code. Betts v. the reference to the statute. Bache, 14 Abbotts' Pr., 279 ; S. C, 23 (Jc) This is the short form which was How. Pr., 197; People «. Bennett, 5 authorized by 2 Rev. Stat., 351, in ac- Id., 384. Though it maybe obnoxious tions of debt to recover any thing re- to a motion to make more definite and ceived contrary to any statute. See, certain in some cases. ] 76 ABBOTTS' FORMS. Complaint for Money Advanced. II. That the plaintiff, supposing said account to be correctly stated, paid to the defendant said amount. (1) III. Tliat the account was not correctly stated, but that it overcharged {m) the plaintiff with the sum of dollars, for \sj>ecifying the error], (n) 232. For Repayment of Advances on a Contractfor Services, unfulfilled. I. That on the day of , 18 , at , the plaintiff entered into an agreement with the defendant, whereby the defendant undertook to render his services to the plaintiff as , for the term of , in consideration of the sum of dollars, to be paid therefor by the plaintiff. II. That on the day of , 18 , at , the plaintiff paid to the defendant, on account of his services to be rendered thereafter in pursuance of said agreement, the sum of dollars. III. That the defendant wholly neglected and refused to render ^id services, (o) 'although this plaintiff has been ready to receive and to pay for the same, {p) and that no part of said sum has been repaid to the plaintiff". (}) It lias been held, that under a («,) A demand is not necessary before complaint alleging that the plaintiff suit for money paid by mistake. The settled an account by paying in money party receiving money paid under a the whole amount claimed to be due, mistake of facts is not a bailee or trus- and claiming to recover a sum vi^hich tee, nor does his duty to return it arise he overpaid in consequence of an over- upon request. Utica Bank v. Van Gie- charge in the account, the plaintiff can- sen, 18 Johns., 485. not recover on proving that he settled Upon the same jprinciple it seems the account by an order for delivery of unnecessary to aver that it has not been stock. Mann v. Moorewood, 5 Sandf., repaid. The plaintiff is not bound to 559. But this would probably now be prove this negative ; and the rule that a regarded as a mere variance, unless de- breach must be alleged does not apply, fendant was prejudiced by it. (o) The plaintiff must prove the non- (m) If the complaint states fraudulent performance. Wheeler i). Board, 12 representations of the defendant, by Johns., 863. which the plaintiff was induced to pay (p) Where an agreement on which him the money, which he seeks to re- money has been advanced has been re- cover back, this does not necessarily scinded by the defendant, or perform- stamp the action as one in tort, or ance so neglected as to entitle the show that the cause of action is not as- plaintiff to rescind it, a demand of re- signable. Byxbie v. Wood, 34 2f. T., payment is not necessary to enable the 607. plaintiff to recover back the money COMPLAINTS. ] 77 For Money Paid. 233. For Repayment of Deposit'on a Contract for the Pur- chase of Real Estate^ unfulfilled, {q) I. That on the day of , 18 , the said defend- ants and this plaintiff entered into a contract in writing, sub- scribed by the defendants, whereby it was mutually agreed that the said defendants should sell to this plaintiff certain leasehold premises known as , in , for the sura of dollars, to be paid therefor by this plaintiff; that the defendants should make a good title to the said premises, and deliver a deed thereof on the day of , 18 ; and that the plaintiff should thereupon pay to the said defendants the said sum. {r) II. That the plaintiff, as a security, as well for the per- formance of said agreement on his part, as to secure a perform- ance thereof on the part of the said defendants, then and there deposited in the hands of said defendants the sum of dollars as a part of the said purchase-money, to be to and for the use of the defendants, and to be retained by them on ac- count of tiie purchase-money, if the plaintiff should complete his purchase and receive the deed ; but to be to and for the use of this plaintiff, and to be returned to him, if the defendants should fail to fulfil their agreement, and give a deed at the time and pursuant to the agreement. III. That he has always been ready and willing to do and paid. Baymond v. Bearnard, 12 Johns., action for damages for non-jjerfonn- 274 ; and see Utiea Bank ■». Van Giesen, ance of the contract as well as for re- 18 Id., 485. If the defendant has re- payment of the deposit. Hanson v. sdnded, plaintiff need not prove readi- Eobordeau, Peake's N. P. C, 130. See ness to pay the whole contract price. Kent's Oom., 680, 631 ; Mauri v. Heffer- Main V. King, 8 Barb., 535. nan, 13 Jolins., 58 ; Bank of Rochester (j) Where a sale is by auction, the v. Monteath, 1 Ben., 403 ; Mills c. Hunt, auctioneer holding the deposit is a 30 TF«B(f., 481 ; affirming S. C, Yl Id., stakeholder, and upon a failure of the 333. vendor to complete the contract, — e. g., (r) Such an agreement is mutual, in failure of title, — is always bound to and the covenants are dependent on repay the purchaser. See Lee v. Munn, each other. Green v. Reynolds, 3 Johns., 1 Moore, 481 ; Curling v. Shuttleworth, 307 ; Jones ■». Gardiner, 10 Id., 266 ; 6'Binff., 131'; Berry v. Young, 3 Ssp., Gazley v. Price, 16 Id., 367 ; Hardin v. 641 ; Bobbhington on Auctions, 173. Kretsinger, 17 Id., 393 ; Parker v. Par- And if he failed to disclose his prin- mele, 30 Id., 180 ; Morris ». Sliter, 1 cipal, he is liable individually in an Ben., 59. Vol. L— 13 178 ABBOTTS' FORMS. Averment of Performance of Purcliaser's Contract. perform every thing in the agreement contained on his part, and on the said day of , 18 , was ready and willing, and duly offered to the defendants, to accept and take the deed of the premises pursuant to the agreement, and to pay to them the balance of the purchase-money due therefor, (s) [Or, III. That the plaintiff duly performed all the conditions of said contract on his part.] {t) IV, That the defendants did not on said day of , nor have they at a,nj other time whatsoever, given him a deed of the premises pursuant to the agreement, but refused to do so [or, but have wholly failed so to do, although the plaintiff waited a reasonable time, to wit, days after said , and then offered to receive a deed], (m) (s) It is necessary for the plaintiff to aver tliat he was ready and willing to fulfil at the time and place appointed, whether the other party was ready or not. Porter v. Rose, 13 Johns., 209, and cases there cited. Where the covenants are dependent, the purchaser is not bound to make an absolute tender of performance. An offer to perform, conditioned on the defendant's performing, is sufficient. Robb V. Montgomery, 20 Johns., 15 ; West «. Emmons, 5 Id., 179 ; Topping 1). Root, 5 Gow., 404 ; Rawson v. John- son, 1 East, 203 ; Watterhouse «. Skin- ner, 2 Boa. & P., 447 ; and see Miller v. Drake, 1 Cai., 45 ; Bellinger ti. Kitts, 6 Barb., 273 ; and cases supra. But an offer to perform is necessary. An averment of mere readiness is in- sufficient. Lester v. Jewett, 11 N. Y. (1 Kern.), 453; affirming S. C, 13 Barb., 503, 505 ; Williams v. Healy, 3 Den., 363 ; Johnson v. Wygant, 11 Wend., 48 ; and see cases supra. (f) This form of averment is author- ized by the Code, § 163. (m) Upon failure by the vendor to be ready with ilie deed, and convey a good title on the day specified, the vendee may rescind the contract and recover back the deposit. 11 Johns., 525, 527 ; Benedict ». Lynch, 1 Johns. Ch , 870 ; Dominick u. Michael, 4 Sandf., 374, 426 ; Cornish v. Rowley, 1 Selw. JT. P., 179 ; Van Benthuysen v. Crapser, 8 Johns., 257. See, also, 8iigd. on Vend., 359. And a demand of the depositis a rescission. Dominick i). Michael, 4 Sandf., 436. Many of the cases hold that between vendor and purchaser a mere demand of a conveyance is not enough ; the purchaser must wait a reasonable time for its preparation and execution, and then offer to re- ceive it. The bringing of the action is not a sufficient demand. Fuller v. Hubbard, 6 O'no., 13 ; Hackett 'ii. Hu- son, 3 Wend., 349 ; Connelly v. Pierce, 7 Id., 128 ; Foote v. West, 1 Ben., 544; Lutweller v. Linnell, 13 Barb., 512. To the contrary are Carpenter v. Brown, 6 Id., 147 ; Flynn v. McKeon, 6 Bmr, 203; Driggs i>. Dwight, 17 Wend., 71, where it was held, that where the right to a deed is perfect, if any re- quest can be deemed necessary, one is enough to put him in default, and the purchaser is not, in general, bound to prepare a deed and demand its execu- tion ; though it may be proper in pecu- liar circumstances, — e. g. , where the day is not fixed. In Blood V. Goodrich, 9 Wend., 68, it was held that if, on demand, the ven- dor positively refuses, the purchaser COMPLAINTS. IJi) For Money Collected on Collateral Securities. Y. And the plaintiff further states, that on the day of ,18 , he demanded (v) of the said defendants that they pay to him the sum of dollars he had deposited with them ;. but that no part of the same has been paid. 234. Bi/ Pledgor of a JVote as Collateral, against the Pledgee, the Note having since heen collected iy him ; — to recover its Excess over the Amount of the Debt. I. That on the day of , 18 , the plaintiff being then indebted to the defendant in the sum of dollars, he delivered \or, indorsed, if the note was transferred hy indorse- ment] to said defendant, as a collateral security for the pay- ment of the same, a promissory note made by one M. N. for , bearing date on the day of , 18 , and payable at months after its date. II. That at its maturity the note was collected by the defend- ant, and by the application of the moneys so received by him, said indebtedness was wholly paid and extinguished. III. That after payment of said indebtedness there remained in the hands of the defendant a balance of dollars, be- longing to this plaintiff; payment oF which the plaintiff de- manded of the defendant on the day of , 18 , but no part thereof has been paid. 235. By Assignees of a Debtor, against his Pledgees of a Mortr gage as Collateral to Notes on which he was jointly liable, the Mortgage having since been collected by the Pledgees ; — to recover its Excess over the Amount of the Notes, and to have the Notes delivered up. [w) need not make another demand ; and tledale, 6 Ad,. & E., 486 ; Hodges v. where several persons are bound to Littlefleld, 1 Sing., 493), and interest convey, and one, -upon demand, re- on money belonging to the plaintiff fuses, a demand of the others is un- and kept by him lying idle, ready to necessary. complete the purchase. Sherry v. Oke, (b) The plaintiff is entitled to recover 3 Dowl.Pr. 0., 349. But such dam- interest on the deposit from the time ages must be specially pleaded, of his demand for repayment. Farqu- {w) This is, in substance, the com- har ». Farley, 7 Taunt., 593. He may plaint in Cahom v. Bank of Utica, 7 also recover as damages for the defend- Sf. Y. (3 Seld.), 486. It states but a ant's breacli of contract, expenses of single cause of action, examination of title (see Jones v. Lit- 180 ABBOTTS' FORMS. Complaint by Debtor against Creditor. I. That, as they are informed and believe, on or about the day of , 18 , S. "W. B. \_plaintiff''s assignor] assigned and delivered to the defendants a bond and mortgage executed by one B. P. C, bearing date , on which there was due, or to become due, and unpaid, the sum of , be- sides interest thereon, to be held by the said defendants as col- lateral security for the payment of certain moneys due them from said S. "W". B., as specified in a receipt for the same, then delivered by said defendants to the said S. "W". B., of which the following is a copy : [setting it out], (x) II. That, as they are informed and believe, the notes'iof said B. & K., "mentioned and referred to in said receipt, were as follows [describing them] : and that there were no other notes of said B. or of B. & R., indorsed by said C, then in said bank ; nor has there been since any other such notes as the notes described in said receipt, except the three notes above specified. III. That on the day of , 18 , the said S, "W". B., by an instrument in writing, under his hand and seal, assigned and transferred to the plaintiffs all his goods, chattels, demands, property, and personal estate of every name and nature. lY. That shortly afterwards, and before the payment to the defendants of either the said notes or the said mortgage, S. "W. B. died, and that no executors or administrators have been ap- pointed upon his estate. V. That, as they are informed and believe, on or about the day of ) 18 , the full amount of said bond and mortgage due, or to become due thereon, with interest, was' paid to the defendants ; that the said bond and mortgage were given up and cancelled, and that thereupon, by the application of the moneys secured in said mortgage and so paid to the defendants, the said notes were fully paid and satisfied. That the amount so paid on the bond and mortgage was greater than the whole amount due and secured by the said notes ; so that there remained a balance, after .paying and satisfying said notes, of about dollars ; by which means the plaintiffs be- came entitled to the possession of said notes, and to have the {x) A better mode of pleading tbe very concisely, without setting out tbe debt would be to describe tbe notes receipt. COMPLAINTS. ISl For Money Collected ou Collateral Securities ;— On Judgment. balance of said moneys paid over to them as the assignees of said S. W. B. YI. That on the day of ,18 , the plaintiffs requested the defendants to account for and pay over to thera the balance aforesaid, after deducting the amount due on said notes, and to deliver to them the said notes ; (y) but the said defendants have not done so. Vn. That the said bond and mortgage was the sole and indi- vidual property of said S.W.B., and that the notes of B. & R. were and are due from a mercantile firm which formerly exist- ed, composed of said S. W. B., and one W. K., who has since died, to be paid by them equally, and that the said notes are now the property of and belong to the plaintiffs as such as- signees. "Wherefore the plaintiffs demand judgment against the de- fendants for dollars, with interest from ; and that the defendants be required to deliver to the plaintiffs the notes for the payment of which said bond and mortgage were hypoth- ecated. 236. I^or Repayment of a Judgment paid and afterwards reversed, {z) I. That on or about the day of , 18 , the de- fendant recovered judgment duly given against this plaintiff in the Court, in and for the county of , in an action wherein the defendant was plaintiff, and this /)laintiff was de- fendant, for the sum of dollars. II. That on the day of , 18 , at , the plain- {y) In an action against a creditor to Where A. sues to recover back money compel him to convey, pursuant to his recovered from him on his arbitration- contract, lands conveyed to him to se- note, by C, to whom B. had trans- cure his debt, the complaint must allege ferred it, and upon the ground that the his refusal to convey. Merely aUeging award vpas void, it is essential to aver a demand is not enough. Dodge «. that the note was transferred before it Clark, 17 Oal., 586. fell due, so as to show that the defence (z) The power of an appellate court could not have been set up in the suit to make restitution, under the Code, byC. Battey v. Button, 13 Johns., will usually aflford a remedy which is 187, preferable to an action. 182 ABBOTTS' FORMS. Complaint for Money Paid nnder Duress. tiff was compelled to pay, and did pay to the defendant the um of in satisfaction thereof, III. That afterwards on the day of , 18 , by the nidgraent of said court [or, other apellate courf] said first-men- tioned judgment was duly reversed ; {a) but that no part of the sum paid in satisfaction thereof has been repaid to this plaintiff. 237. -Sy Owner of Goods against Com.mon Carrier, to Recover Bach Excess of Freight exacted. I. That on the day of , 18 , the defendants agreed with this plaintiff to transport from to , and to deliver there to him certain goods of the plaintiff, for the sum of dollars [or, for a reasonable sum]. \_0r, where there was no special contract, I. That the de- fendants being common carriers for hire between and , on the day of , 18 , undertook to trans- port for the plaintiff from to certain goods of his, for a reasonable compensation.] II. That in pursuance thereof the defendants transported said goods [for which service dollars is a reasonable sum] ; and upon their arrival at , the plaintiff demanded said goods of the defendants, and offered to pay them, for transport- ing the same, said sum of dollars ; but that the defend- ants refused to deliver said goods, unless the plaintiff would pay to the defendants the sum of dollars for transporting the same. III. That the plaintiff thereby was compelled to pay, and on the day of , 18 , and to obtain the delivery of said . goods, did pay to the defendants the said sum of dollai-s which sum he paid under protest, and expressly denying the defendants' right to claim it. (&) (o) It is not enough to show that the But the fact that a new trial is or- judgment was erroneous. It must have dered does not suspend the right to re- been reversed. Walker ®. Ames, 3 cover back the payment. Sturges v. Cow., 428 ; White v. Ward, 9 Johns., Allis, 10 Wend., 355. 333 • and see Roth v. Schloss, 6 Barb., (b) This form is based on Harmony 308, V. Bingham, 1 Buer. 309. COMPLAINTS. 183 For Money Keceived. 238. Against a Factor^ for Price received iy him for Goods sold, I. That on the day of , 18 , at , the plain- tiff employed the defendant to sell upon commission [here des- ignate the goods'],, the property of the plaintiff, and thereupon delivered the same to him for that purpose. II. The plaintiff further states, upon information and belief, that thereafter, and before the day of , 18 , but on what particular day or days he is not informed, the defend- ant sold said goods for the su'm. of dollars, which sum he thereupon received, (o) III. That, as this plaintiff is informed and believes, the just charges of the defendants for the commissions and expenses therein, amount to dollars, and no more, {d) IV. That on the day of , ^8 , the plaintiff de- manded of the defendant payment of the balance of said price remaining after deducting said charges ; but that no part of the same has been paid, (e) (c) K tlie declaration in an action to recover tte price of goods sent for sale on commission, alleges that defendant sold, but did not account to plaintiff, the plaintiff must prove that a sale ac- tually took place. Elboume v. Upjohn, 1C.& P., 573 ; S. C, 11 Unff. Com. L. R., 476. If defendant has accounted, it ■will be better to sue on the account stated. Under a covenant to sell land, using diligence to do so to the best advan- tage, and pay over the proceeds, as- signing as a breach that the defendant did not pay over the proceeds of the sale, is bad on special demurrer. There must be a direct averment of a sale and the receipt of money. Brown v. Steb- bins, 4 Hill, 154. (d) This allegation is not essential, but may prevent any answer setting up his claim. (e) In an action against a factor for the proceeds of goods sold, of which he apprised his principal, a demand must be shown, unless he had instructions to remit, or the usage of his business made it his duty to do so without in- structions. The action is founded on a supposed breach of trust wltich must be made out affirmatively. Cooley v. Betts, 24 Wend., 308 ; Ferris «. Paris, 10 Johns., 385 ; Brink i). Dolsen, 8 Barb., 337 ; Halden v. Crafts, 4 R D. Smith, 490 ; S. C, sub nom. Walden v. Crafts, 3 Abbotts' Pr., 301 ; Baird «. Walker, 13 Bmb., 398. As to the distinction, in respect to the necessity of proving a demand, be- tween an action for not accounting, and an action for not paying over, see Cooley V. Betts, 34 Wend., 303. In an action against an agent for not accounting, &c., a request to account and pay over must be alleged and proved. Bushnell «. McCauley, 7 Cal., 431. 184 ABBOTTS' FORMS. Complaints for Money Received. 239. Against Factor, under Del Credere Cmnmission. I. That on the day of , 18 , the plaintiffs em- ployed the defendants to sell certain goods and merchandise of the plaintiffs, of the value of dollars, upon commission, and then delivered the same to them; and the defendant then promised to sell the same, and to be responsible to the plain- tiffs for the price thereof. II. That as the plaintiffs are informed and believe, thereafter and on or before the day of ,18 , but on what particular day or days they are not informed, and cannot state, the defendants sold said goods and merchandise for the sum of dollars, on a credit of months from the time of such sale; which credit expired before the commencement of this action. (/") III. {As in Form 238.] lY. The plaintiffs further state on information and belief, that the sum of dollars, being the price of said goods and merchandise after deducting said charges, became due and payable to these plaintiffs from the defendants on the day of , 18 . Y. That on the day of , 18 , at , the plain- tiffs demanded (^) payment of the same from the defendants, but that no part of the same has been paid. (/) Where the defendants sold under the principal, or instructions to remit ; a d,el credere commission, it is unneces- except, perhaps, where it is shown that sary for the complaint to aver that the it was according to the usual course of purchaser was in default; and if he dealing to remit without demand, was in default it is not necessary to Walden v. Crafts, 2 Ahbotts' Pr., 301 ; aver a demand on him, though it might S. C, sub nom. Halden «. Crafts, 4 B. be otherwise if the factors merely guar- D. Smith, 490 ; Ferris v. Paris, 10 Johns., antied the payment of a price, to he ■ 285 ; Murray «. Coster, 30 Id., 576- ; collected by the principal. MilUken ■». Leverick v. Meigs, 1 Cow., 645 ; Taylor Byerly, 6 fibw. P';'., 314 ; and see Wolff D.Bates, 5 Id., 376; as explained hy «. Koppel, 3 Den., 368 ; 1 Parsons on Lyle ■». Murray, 4 Sandf., 590, 594 ; Cont, 78. Cooley ®. Betts, 24 Wend., 203 ; Hays i). (g) The rule is settled in this State Stone, 1 Hill, 128 ; Baird ®. Walker, 13 that a foreign factor is not liable to an Barb., 298 ; and see Lillie v. Hoyt, 5 action for the proceeds of sales made MUl, 395 ; and Heuhach «. Rother, 3 by him for account of his principal on Buer, 337, 352 ; S. C, N. Y. Leg. Obs. commission until a demand made by 369. COMPLAINTS. 183 For Money Received. 2J:0. Against Note-hroTcer, far' Proceeds of Note discounted. (A) I. That on the day of , 18 , at , the plaintiff employed the defendant to sell or procnre to be dis- counted a promissory note, the property of the plaintiff, made by one M. N. \]iere describe the note~\, and thereupon the plain- tiff delivered the same to the defendant, who undertook to sell it or procure it to be discounted for a reasonable commission, and to pay the proceeds over to the plaintiff. II. The plaintiff further states, on information and belief, that on the day of , 18 [or, thereafter and before the day of , 18 , but on what particular day he is not informed], the defendant procured said note to be discounted by one O. P., and received as the proceeds thereof the sum of dollars. III. [As in Form 238.] lY. That the plaintiff, on the day of > 18 j at , duly demanded from the defendant payment of the sum of dollars, being the balance of the proceeds after deducting his commission, but no part thereof has been paid. 241. £y an Assignee, to recover Official Fees received hy One who had usurped the Assignor's Office, {i) I. That prior to the day of , 18 , the defendant was in possession of, and claimed to hold and administer the office of [chamberlain of the city and county of ISTew York]. II. That on or about that day, by and at , under and in pursuance of the laws of this State, N. C. P. was duly appointed to fill the said office, and was constituted thereby [the chamberlain of the city and county of New York] in place (A) In an action against brokers for part of the plaintiff. An allegation selling, witliout authority, stock wMcli that defendants sold it may he deemed, they had purchased for the plaintiff, if on demurrer, to imply that they had the complaint shows that they purchas- perfected the sale by delivery. Clark ed the stock for the plaintiff, to be v. Meigs, 13 Alhotts' Pr., 467 ; S. C, 23 delivered to him at his option within a How. Pr., 340 ; reversing S. C, 13 ^15- specified time, but sold it meanwhile lotts^ Pr., 267, and 21 Eow. Pr., 187. against his express instructions, it need (i) This form is fi om Piatt v. Stout, not allege a demand and tender on the 14 Abbotts' Pr., 178. 186 ABBOTTS' FOKMS. Complaint to Eecover Fees Received. of the defendant; and N. C. P. thereupon duly made and ex- ecuted the official bond with the sureties, and took the oath of office required by law of persons who are appointed to hold the same ; that said bond was duly approved by . , and the same, with the said oath, were duly filed in the ofiice of ; and after that date, and until on and after the day of , 18 , was entitled to hold and administer said ofiice, and to receive the fees, emoluments, and commissions apper- taining thereto. III. That N. 0. P. thereupon gave due notice to the defend- ant of the foregoing matters, and demanded that defendant relinquish the ofiice to him, and deliver to him the books and papers belonging to the same, all which the defendant refused to do; and he wrongfully and unlawfully usurped and con- tinued to exercise and perform the duties of said office, and to receive the emoluments, fees, and commissions thereof, until on and after the 7th day of June, 1860. lY. The plaintiff further alleges, upon information and belief, that between the day of ,18 , and the day of ,18 , the defendant, so unlawfully exercising and per- forming the duties of said office, collected and received, under color thereof, the sum of dollars for State taxes, collected in the city and county of New York, which taxes the chamber- lain of the city and county of New York was empowered and required by law to receive and pay over forthwith to the treas- urer of the State of New York, and to demand and receive therefor the commission and fee of one per cent, on every dol- lar which he should so receive and pay ; that on or about the day of ) 18 , the defendant paid over to the treasurer of the State of New York the sum of dollars (part of said sum of dollars), and retained and appropri- ated to his own use the balance thereof, to wit, dollars as and for the of&cial commissions and fees thereupon, which rightfully belonged to the said N. C. P. V. That N. C. P., before the commencement of this action, duly assigned to this plaintift' his claim, demand, and cause of action therefor against the defendant ; and that the defendant has not paid the same nor any part thereof. COMPLAINTS. 187 On Sale of Goods. Section III. COMPLAINTS IN ACTIONS TOE GOODS SOLD, (a) Setllee against bityer. 243. Sale and delivery p. 187 243. The same, where the price was agreed on 188 244. Short form, upon an account 188 245. Sale to defendant, and delivery to a third person 189 246. Sale and delivery, anticipating and avoiding defence of pay- ment '. 189 347. The same, anticipating and avoiding defence of an unexpired credit 191 348. Against husband and wife, for goods sold for 'her separat* ^ estate 191 249. For necessaries furnished to defendant's wife or children 193 250. By assignee, for price of stock and fixture^ of store and good- will, agreed to be paid in instalments 193 251. Agauist a fraudulent buyer, seeking an injunction restraining sale pending the suit 194 Seller against BirrEE. 242. Sale and Delivery. (5) I. That on the day of , 18 , at , tlie plaintiff sold and delivered to the defendant, (. Kaylor, 2 H. B. Smith, 134; see ante,'lQ^, Form 214, note. As to when separate accounts be- tween the same parties are separate causes of action, and therefore must be separately stated, see Phillips v. Berick, COMPLAINTS. 189 For Goods Sold. 2i5. Sale to Defendant, and Delivery to a Third Person, {i) That on the day of 18 , at the plaintijff bargained and sold to the defendant, and delivered to one M. ]^., at the ]-equest of the defendant [continue as in jpreceding Form 'i^l^from the *]. 246. Sale and Delivery, Anticipating and Avoiding Defence {j) of Payment. [Allege sale, as i?i preceding forms.] m. That on the day of , 18 , at , the de- fendant passed to this plaintiff, as in payment of his indebted- ness for said goods, the check of one M. N. upon the Bank of 16 Johns., 136 ; Stevens «. Lockwood, 13 W^d., 644 ; Staples v. Goodrich, 21 Barb., 317 ; Secor v. Sturgis, 2 Abbotts' Fr., 69 ; and Longworthy v. Eaiapp, 4 Id., 115. (7i) A complaint, although it refers to an account, should indicate the na- ture and character of the claim, and the period within which it arose. Farcy v. Lee, 10 Abbotts' Pr., 143. (i) That person is liahle to whom the creditor at the time gave the credit. Storr V. Scott, 6 Carr. <& P., 241 _; C'7dt. on Gontr., 226 ; Btory on Agency, 213, § 363 ; Smith's Mere. L., 313 ; Dixon v. Frazee, 1 S. D. Smith, 33 ; Briggs «. Evans, Id., 193. When goods sold are delivered to a third person for the exclusive use of such person, his authority to receive them, and their delivery to him, are material and issuable facts, which the plaintiflF, in an action against the pur- chaser, is bound to prove upon the trial, and is therefore bound to aver in the complaint. It is only as a conclusion of law that such a delivery amounts to the delivery to the purchaser. Smith v. Lei and, 2 Duer, 497. But a variance in this re- spect may be disregarded if the defend- ant does not appear to have been mis- led. Rogers ■». Verona, 1 Bosw., 417 ; Briggs V. Evans, 1 JE. D. Smith, 192. (j) The pleader wiU do well to be cautious how he undertakes to antici- pate and avoid in his complaint a proba- ble defence ; as his privilege to do so must be claimed rather from the indul- gence of the court shown to the exigen- cies of the plaintiffs case, than from any distinct authority in the Code. In pleading in equity the complainant was allowed to anticipate a defence by setting it up in the charging part of the bUl as a pretence of the defendant, and averring matters in opi^osition to it. Stafford v. Brown, 4 Paige, 88. And this was the common practice. Morrell J). Morrell, 8 Barb., 336; Hetfield v. Newton, 3 Sandf. Ch., 564 ; Harris- v. Knickerbacker, 5 We7id., 638 ; see Equity Pule 5 of 1847. The com- plainant, however, was not bound to do so, even where the defence was the Statute of Limitations. Radcliff «. Row- ley, 3 Barb. Oh., 23. Under the new practice his right to 190 ABBOTTS' FORMS. Complaints on Sale of Goods. 0. P., which check the defendant represented to this plaintifl to be good ; but that on the contrary, said M. 'N. then had no funds at the said bank, and his said ciieck was worthless, as the defendant then well knew [or, was worthless, and although the same was duly presented for payment on the day. of 18 , it has never been notice], (k) paid, of which the defendant liad due do so is not settled. The plaintiflf is not bound to anticipate a defence. Van Demark v. Tan Demark, 13 Sow. Pr., 373. Bat "whether he is entitled to do so, the authorities are not agreed. Thus in Butler v. Mason (5 Abbotts Pr., 40), it was held that he could not properly allege matters only important "by way of anticipating and avoiding a defence which it is wholly optional with the de- fendant to interpose in his answer, or to waive, — e. g., the Statute of Limita- tions. And the same rule was applied in Sands v. St. John, 36 Barh., 628 ; S. C , 23 How. Pr., 140. But in Bracket i'. Wilkinson (13 Id., 102), it was held, however, that he might do so ; — e. g., allege that he had heen induced, by false representations, to receive in pay- ment a worthless check. In Wade v. Rusher (4 Bosw., 537), it was held that in an action where the setting aside of a release or account stated is necessary to reach the relief sought, the com- plaint may, after stating the original cause of action,, set forth the defence which it is anticipated defendant will intei-pose, with statements which avoid the defence. So in Thompson v. Min- ford (11 How. Pr., 373), it was held that plaintiff may amend his complaint, in a proper case, by adding allegations necessary to show securities or eviden- ces of debt, taken for the cause of ac- tion set out in the original complaint, — 6. g., a foreign judgment recovered upon it. This is not adding a new count. Upon either view a complaint alleg- ing such facts should be regarded as good upon demurrer. Roth v. Palmer 27 Barb., 652 ; Campbell v. Wright, 31 How. Pr., 9 ; AtwlU -o. Le Roy, 4 Ab- botts' Pr., 438. It certainly seems to be no strained construction of the requirement to state in the complaint facts constituting a cause of action, to hold that in those cases, at least, where the defence is apparent on the face of the complaint (as in the case of the Statute of Limita- tions), or where special relief is neces- sary, averments necessary to meet it may be inserted. And the only remedy for the error, if any, in so doing, is by motion to strike out the anticipatory averments as irrelevant. This motion is addressed to the discretion of the court, in this respect, that if the irrele- vant allegation which has crept into the pleading will not in any event do harm to the opposite party, the court is not bound to strike it out. Martin v. Ka- nouse, 3 Abbotts' Pr., 330. The motion should be denied unless the defendant is aggrieved. There is a certain sanction in this rule for an occasional departure from the systematic theory of pleading, where the real merits of the plaintiff's case re- quire it ; which must not, however, be trusted too far. It is with reference to its use in these cases, and not as a theoretically ap- proved mode of pleading, that Forms 246 and 247 are given. (/<;) As to when the averment of de- mand and notice may be omitted, see notes to Complaints on Checks, Sec- tion XI., infra. COMPLAINTS. 191 Goods Sold. To Wife, for Separate Estate. 247. The Same^ Antimpating and Avoiding Defence of an Unexpired Credit. {I) I. [Allege sale on credit, as in preceding forms.] II. That in order to induce the plaintiff to allow him credit upon such sale, the defendant then falsely and fraudulently- represented himself to the plaintiff to be worth a large sum, to wit, , over and above all his just debts and liabilities ; whereas, in truth, he was insolvent ; and that the only credit given by the plaintiff to the defendant was solely induced by said false and fraudulent representations, and solely on the faith thereof, (m) 248. Against JBusiand and Wife, for Goods sold for her /Separate Estate. I. That between the day of > 18 , and the day of , 18 , at , the plaintiff furnished to the defendant "W". Z., who was then, and still is, the wife of the de- fendant Y. Z., {n) materials used for the building of a house (Z) Wliere goods are sold ou a credit, Pulver, 5 Barb., 91 ; Roth v. Palmer, and are to be paid for by a note or 27 Id., 653 ; Campbell v. Wright, 21 bUl, and the buyer refuses to give the How. Pr., 9 ; and see Pierce v. Drake, note or bUl, the seller cannot sue as for 15 Joli'ris., 475 ; Atwill v. Le Koy, 4 goods sold and delivered, until the ex- AhhotW Pr., 438. pif ation of the credit ; though he may (m) These allegations of fi-aud are sue immediately upon the refusal, for not the gravamen of the suit, but go to damages for the breach of the agree- show the plaintiff's right to rescind the ment to give the note. Hanua -b. Mills, contract. Soth v. Palmer, 27 Barb., 21 Wend., 90 ; Yale d. Coddington, 31 653 ; Campbell v. Wright, 31 Eow. Id., 175 ; Corlies d. Gardner, 3 Hall, Pr., 9. 345 ; and see Ward v. Begg, 18 Barb., (n) The husband should be joined 139. with the wife as defendant. Where But where goods are sold on a credit the action concerns her separate prop- whioh the buyer fraudulently obtained, erty, the wife may sue alone ; but it is by false representations, the seller may only when the action is between her- reclaim the goods, or may bring tres- self and her husband that she can be pass or trover (Ash v. Putnam, 1 HUl, sued alone. Code, % 114 ; Smith v. 303 ; Gary v. Hotaihng, Id., 311) ; or Scribner, 12 How. Pr., 501 ; Francis v. he may waive the tort and affirm the Ross, 17 Id., 561. Compare, however, sale, but rescind the credit ; in which Walker v. Swayzee, 3 Abbotts Pr., case he wUl sue as for goods sold. WiU- 136 ; Arnold v. Rlngold, 16 How. Pr., Bon V. Foree, 6 Johns., 110; Camp v. 158. 192 ABBOTTS' FORMS. Complaint to charge Separate Estate of Wife. for her, upon, and for the benefit of, (o) her own separate lands and premises, situated in the town of , in the county of .(p) II. That the said defendant l_wife] in consideration that the plaintiff would furnish such materials as aforesaid, then and there promised the plaintiff that she would pay for the same dollars [or, as much as they should be reasonably worth], out of her own separate property, and did appoint the same to be paid for out of her separate property, (q) III. That such [materials so furnished were reasonably worth the sum of dollars, which] sum became due to the plain- tiff from her on the day of , 18 , but no part thereof has been paid [except the sum of, &c.] TV. The plaintiff further shows, on information and belief, that the premises above mentioned and hereinafter more particularly described, were, at and before the day of , 18 [which was the day of the marriage of defendants], since have been and now are, her sole and separate property ; and the same are worth. about dollars, and are bounded and de- scribed as follows : [description qfprernises]. (r) (e) The form above given is adapted where a different view of the operation from that employed in Dickerman v. of those statutes was taken by the Abrahams (21 Barb., 551), which was New York Common Pleas, based upon the established principles, The above form is further supported relative to the rights and MbUities of by Francis v. Euss, 17 Sow. Pr., 561. married women, which prevailed prior As to the proper mode of pleading in to the ac'^3 of 1848 and 1849. The an action on a contract under the acts weight of the decisions is, that those of 1860 aind 1S63, compare Coster v. acts enlarged only the power of mar- Isaacs, 16 Abbotts' Pr., 338 ; Baldwin v. tied women to hold and convey their Kimmel, Id., 353 ; Young v. Gori, 18 separate estate, but did not operate to Id., 13, note; Thompson v. Sargent, 15 subject them to new remedies on their Id., 453 ; Aitken v. Clark, 16 Id., 338, personal contracts. Gates ii. Brower, 9 Tiofe. if. Y. (5 Seld.), 205 ; Switzer v. Valen- (p) Alleging a sale and delivery to tine, 4 Buer, 96 ; Cobine ii. St. John, 13 the husband, instead of alleging a sale Sow. Pr., £'33 ; Coon d. Brook, 31 Barb., and delivery to the wife on the faith of 546 ; Dickerman «. Abrahams, Id., 551 ; or for the benefit of her separate estate, Yale 1). Dederer, Id., 386 ; Lovett v. is not sufficient. Arnold e. Ringold, 16 Robinson, 7 Sow. Pr., 105 ; Phillips v. Sow. Pr., 158. llagadon, 13 Id., 17 ; Wotkyns v. Abi-a- (q) Merely alleging a sale on the hams, 14 Id., 191. Nor alter the mode credit of her estate, is insufficient on of pleading. (See Phillips ■». Hagadon, demurrer. Bass «. Bean, 16 Sow. Pr., 13 Sow. Pr., 17.) Compare, however, 93. Walker «. Swayzee (8 Abbotts' Pr., 136), (r) This allegation which was not iu COMPLAINTS. 193 For Goods Sold. Necessaries. Good-will, &c. Wherefore the plaintiif demands judgment (s) that the sepa- rate property aforesaid of the defendant [wife] be charged witli the payment of the said sum of , with interest from , togetlier with the costs of this action, and that the said property be applied to the payment of the same, and that a receiver be appointed to take possession of. her said separate property, and dispose of it, or of so much thereof as shall be necessary to satisfy the same. 249. JFor Necessaries furnished to Defendant''s Wife or Children,. I. That between the day of 5 18 , and the day of , 18 , at , the plaintiff found and provided for one Y. Z., then the wife [or, infant son, or, infant daughter] of the defendant, at the request of said Y. Z., necessa- ries for her use, to wit, , to the value of dollars. II. That said sum thereupon [or, on the day of , 18 j, became due therefor from the defendant to this plaintiff, but no part thereof has been paid. 250. By Assignee, for Price of Stock and Fixtures of Store and Good-will, agreed to he paid in Instalments. I. That on the day of j 18 , one M. N. sold and delivered to the defendant the stock and fixtures of the [drug- store, No. , in street, in J, the property of said 'K. N., and bargained, sold, and relinquished to the defendant the good- will of the business theretofore carried on by said M. N. there ; for which the defendant agreed to pay said M. N. the sura of dollars in equal quarterly payments on the days of the months of thereaftei". tte original complaint in Dickerman v. («) This demand of judgment is con- Abrahams (21 Barb., 551), was held formable to tlie directions given in necessary in Sexton v. Fleet, 6 Abbotts' Cobine «. St. John, 13 Sow. Pr., 833 ; Pr., 8 ; Cobine v. St. John, 12 How. and Coon 1). Brook, 21 Ba/rb., 546. See, Pr., 333 ; Coon v. Brook, 21 Barb., 546. also. Tale v. Dederer, 23 iV. T., 450; 31 For other averments showing a sepa- Barb., 525 ; 18 If. Y., 365 rate estate, see Forms 190-193, 198-300. Vol. I. — 13 194 ABBOTTS' FORMS. Complaint for Price of Goods Sold. II. That he has not paid the same or any part thereof [except the sum of, &c.J III. That thereafter and before this action said M. E". duly assigned to this plaintiff the indebtedness of the defendant therefor, of which the defendant had due notice. 251. Against a Fraudulent Buyer, seeking an Injunction restraining Sale pending the Suit, {t) [Allege sale, c&c, as in Form 242 or 243.] II. That in order to induce the plaintiff to make said sale and delivery, and with intent to defraud him of said goods, the de- fendant then falsely and fraudulently represented himself to the plaintiff to be worth a large sum, to wit, , over and above all his just debts and liabilities, whereas in truth he was insolvent; and that induced by said false and fraudulent repre- sentations, and solely on the faith thereof, the plaintiff made said sale and delivery. III. That thereafter, and with such intent, said defendant removed said goods to , and is about to sell and dispose of the same. IV. That the defendant is insolvent and, as the plaintiff is informed and believes, a judgment against him will be unavail- ing and worthless, if he is suffered to sell and dispose of said goods. "Wherefore the plaintiff demands judgment against the de- fendant for the sum of , with interest thereon fi'om the said day of ? 18 , and that the defendant and his agents be enjoined from selling, disposing of, removing, or in any wise interfering with said goods or any of them, until such judgment be fully satisfied. (i) On a fraudulent purchase the sell- Pr., 59 ; Erpstein «. Berg, 13 Id., 91. er may disavow the sale and reclaim But where the transfer has already the goods, or affirm the sale and sue been made, none hut a judgmentcred- for their price ; and in the latter case iter can restrain a disposition of the it seems that an injunction may he property by the fraudulent assignee, granted under section 219 of the Code Reubens «. Joel, 13 N. T. (3 Kern), 488 ■ restraining the "buyer from disposing of Bayaud v. Fellows, 28 Barb., 451 ; Per- the goods. Malcolm v. Miller, 6 How. kins v. Warren, 6 Eow. Pr., 341 ; Se. Pr., 456 ; Reubens «. Joel, 13 JST. T. (3 bring v. Lant, 9 Id., 346. K^ern .), 488 ; Furniss v. Brown, 8 Sow. COMPLAINTS. 195 Action for Use and Occupation. Section IV. OOMPLATNTS IN ACTIONS FOE USE AND OCCUPATION, (a) 253. General form p. 195 253. For a fixed rent 190 254. For pasturing 196 355. For lodgings 197 252. General Form, (b) I. That the defendant occupied (c) the house and lot of the plaintiff, {d) No. , street, in \or otherwise describe (a) The foundation of this action is an agreement, express or implied, by which the tenant, with permission of the owner, occupied or had an exclu- sive right to occupy the premises. Keating v. Bulkley, 3 Stark., 419 ; S. C, 3 Eng. Com. L. R., 411 ; Atkins «. Scrivener, 2 C. B., 654 ; S. C, 53 Eng. Gem. L. B., 653 ; Selbey v. Browne, 7 Q. B., 030 ; S. C, 53 Eng. Gom. L. B., 620. If the occupation was contrary to the owner's will, his action must he for damages. Smith v. Stewart, 6 Johns., 46 ; Bancroft v. Wardwell, 13 Id., 489 ; Featherstonaugh ads. Bradshaw, 1 Wend., 134; Hall v. Southmayd, 15 Barb., 32. A contract may he implied. Osgood V. Dewey, 13 Johns., 340 ; Abeel V. Radcliff, Id., 397 ; Porter v. Bleiler, 17 Barb., 149 ; Eyerss ». Farwell, 9 Id., 615; Harland i). Bromley, 1 Stark., 4.'5o ; S. C, 3 Eng. Com. L. B., 467. The plaintiff may give in evidence a lease not under seal, to prove that the relation of landlord and tenant existed, and what was the rent agreed. 1 Bev. Stat., 748 ; Williams v. Sherman, 7 Wend., 109 ; Wood v. Wilcox, 1 Den., 37 ; and cases cited *Mpra. And it has been held that since the Code a lease under seal may be given in evidence under a complaint for use and occupa- tion. Ten Eick v. Houghtaling, 13 How. Pr., 533. But an occupation must be shown, which is not necessary in an action on the lease. See the cases infra, and Edwards v. Hetherington, 7 Dowl. B., 117 ; Salisbury v. Marshall, 4 Ca/r. & P., 65; Cowie v. Goodwin, 9 Id., 878; Smith 4). Marrable, 1 Oar. & M., 479 ; Collins V. Barrow, 1 Moody &B., 113. (6) This form is supported by Waters «. Clark, 33 How. Pr., 104; Hall v. Southmayd, 15 Barb., 33. (c) The plaintiff need not set forth an implied demise, but may declare for use and occupation, and recover on the special facts shown. Morris ■». NUes, 13 Abbotts' Pr., 103 ; Waters ti. Clark, 23fi"w«).Pr., 104. {d) No tenancy can be implied under a party who has not the legal estate. Morgell V. Paul, 3 Mann. & B., 303 ; S. C, 17 Eng. Com. L. B., 303 ; Evans v. Evans, 3 Ad.&E., 133 ; S. C, 10^ Eng. Gom.L. B., 80. But one occupying and paying rent to an apparent proprietor as his landlord , cannot, when sued, allege that he has only the equitable estate. Dolby d. Hes, 11 Ad. & E., 385 ; S. C, 39 Eng. Com L. B., 195. 196 ABBOTTS' FORMS. Complaints for Bent ; — for Pasturing the landl, by permission of the plaintiff, {e) as his tenant, from the day of 5 18 , until the day of , 18 . II. That the use of the said premises for that period, was reasonably worth dollars. III. That no part of the same has been paid [except the sum of,&c.](/) 253. For a Fixed Rent. I. That on the day of , , 18 , at , the defendant hired from the plaintiff the [first floor of the ware- house], No. , street, in , at the [yearly] rent of dollars, payable [on the first day of every month]. II. That the defendant occupied the said premises from the day of , 18 , to the day of , 18 . \_0r, where the defendant had abandoned possession, 11. That the defendant took possession of and occupied the said premises under said agreement.] [g) III. That the sum of doUai-s, being the part of said rent due on the first day of j 18 , is still unpaid. 254. For Pasturing. {As in 252 or 253, substituting,] the pasture of the plaintiff in , by his permission, as his tenant, for the grazing of his cattle [or, horses, &c.], from, &c. Tenants in common may properly the executors as such. Pugsley v. Aik- join in an action for use and occupation en, 11 i^T. Y. (1 Kern.), 494. ■without showing a joint demise. Por- («) If the complaint shows that the ter V. Bleiler, 17 Barb., 149. An infant occupation was a trespass, it is had on may maintain this action although he demurrer. Huid «. Miller, 3 Si?*., 540. has a general guardian. lb. ; and see (/) Interest may be recovered on a Fitzmaurice -o. Waugh, 3 Dowl. & B., daim for use and occupation. Ten 273; S.C.,16Mig.Com.Z.B.,im. Eick 1). Houghtaling, 13 Sow. Pr., In an action for use and occupation, 533. For allegation of demand, see demands for rent which accrued in the Form 343. lifetime of a decedent, and for rent ac- (g) Actual continued occupancy is cruing after his decease, while the not necessary to be shown. Little v. tenancy was continued by the executors Martin, 3 Wend., 330 ; Westlake ■». De on account of the estate, are properly 6raw, 35 Id., 669 ; Hoffman v. Delihan- joined as one cause of action, against ty, 13 Abbotts' Pr. 388. COMPLAINTS. 197 For Kent. 255. For Lodgings. (A) \As in 252 or 253, svbstituting ^\ rooms in and part of the house of the plaintiff at \and if furnished., add., together with furniture, linen, aad other household necessaries of the plaintiff, which were therein] ; by the plaintiff's permission as his tenant, from, &c. Section V. COMPLAINTS FOK THE HIRE OF PERSONAL PEOPEETY. {a) 256. On an account for the hire of horses, carriages, &c p. 197 257. For the hire of a pianoforte, with damages for not returning it 197 358. For the hire of furniture, &c., ^with damages for ill-use 198 256. On an Account for the Hire of Horses., Carriages., c&c. (5) I. That between the day of , 18 , and the day of , the defendant hired (c) from the plaintiff horses, carriages, and saddles, for which he owes the plaintiff on an account thereof, the sum of dollars, which was payable on the day of II. That no part of the same has been paid [except the sum of, &C.J 257. For the Hire of a Pianoforte., with Damages for not returning it. First: For a first cause of action, I. That on the day of , 18 , at , the defendant hired from the plaintiff one pianoforte, the property (A) For a complaint for board and amount of compensation claimed by lodging, see Form 273. plaintiff depends. Eelyea v. Drew, 1 (a) As to Oiarter-parties, see infra. Ben., 561. A declaration on a contract for the (J) For the authorities for this form, hire of a thing, the compensation for see ante, 163. which was to depend upon its earnings, (c) " Hired," implies a request. Em- must set forth thd facts on which the ery i\ Fell, 3 T. S., 38. 198 ABBOTTS' FORMS. Complaints for Hire of Personal Property, and Injuries thereto. of the plaintiff, for the space of [six] months, then next ensuing, to be returned to this plaintiff at the expiration of said time in good condition, reasonable wear excepted, for the use of which he promised to pay this plaintiff a reasonable sum. (d) II. That dollars was a reasonable sum for the hire of the same ; which sum, on the day of ? 18 , became due from the defendant to the plaintiff. III. That no part of the same has been paid [except the sura of J. Second: And for a second cause of action, I. The plaintiff further states, that the value of the piano- forte so hired by the defendant, as above alleged, was dollars, (e) and that the defendant, not regarding his said under- taking to return the same to this plaintiff, has not returned the same, although he was, on the day of , 18 , at , requested by the plaintiff so to do, to the damage of the plain- tiff dollars. 258. J^or the Hire of Furniture^ <£io., with Damages for lU-use. First: For a first cause of action, I. That on the day of , 18 , at , the de- fendant hired from the plaintiff household furniture, plate, pic- tures, and books, the propertj^ of the plaintiff, to wit : [descriie or enumerate the articles, or refer to a schedule annexed'] ; for the. space of then next ensuing, to be returned by him to the plaintiff at the expiration of said time, in good condition, reasonable wear and tear thereof excepted. II. That he promised to pay the plaintiff for the use thereof dollars [in equal quarterly payments, on the days of thereafter]. (/") in. That no part thereof has been paid [except the sum of , &c]. Second: For a second cause of action, I. This plaintiff further states, that the value of the property so hired by the defendant, as above alleged, was ' dollars. (d) In case tlie amount was agreed personal property, stould state the on, aver it as in the next form. value of the property. (e) The complaint in an action to re- (/) If the amount was not agreed cover damages for the conversion of on, aver it -as in preceding form COMPLAINTS. 199 Actions for Work, Labor, and Services. II. That the defendant, not regarding the said undertaking to return the same in good condition, took so little care thereof, that through his negligence, carelessness, and ill-use, the same became broken, defaced, and damaged beyond the reasonable ■wear thereof, and in that condition were returned to the plain- tiff, to his damage dollars. Section VI. COMPLAINT IN ACTIONS FOR WOEK, LABOE, AND SEEVICES. (a) 259. General form p. 200 260. The same, upon an account 201 361. For commissions of broker 201 262. For freight, against consignor 201 263. The same, against consignee 203 264. For writer's services in editing a newspaper 203 265. The same, for services in editing or compiling a book 203 266. By an architect, for his services 203 267. By a parent, for services of minor son 203 268. For work and materials furnished 203 269. The same, on an account 204 270. By an attorney, for services and disbursements 204 271. For tuition bills ." 205 273. For board and lodging 305 273. For stabling of horses 205 274. By proprietors of a newspaper, for advertising ': 205 275. By advertising agent, for services and disbursements 206 276. On a special contract, completely fuliilled 206 277. The same, where the contract was fulfilled by an assignee 208 (a) The forms comprised in this sec- written contract, the plaintiff must in tion are appropriate, not only in actions any case produce it on the trial, or ac- for services rendered in pursuance of a count for its absence. Clark ii, Smith, verbal agreement, but also in actions 14 Johns., 326, and cases there cited ; where the work was undertaken in Champlin v. Butler, 18 Id., 169 ; Wood pursuance of a written contract, if the v. Edwards, 19 Id., 305 ; Smith v. Smith, contract has been fully performed on 1 Sandf., 206 ; Ladue v. Seymour, 24 the part 'of the plaintiff, or has been Wend., 60; Sherman ■». N. Y. Central abandoned by agreement, or rescinded R. R. Co., 23 Barb., 389 ; Adams v by the wrongful act of a party, or its Mayor, &c., of N. T., 4 Duer, 295. execution is incomplete by reason of an Where there is a special agreement, excuse. Farron v. Sherwood, 17 iK Y., and the plaintiff has performed on his 227 ; Wolfe ii. Howes, 20 Id., 197. part, so that nothing remains to be Where, however, there has been a done by the contract but payment of 200 ABBOTTS' FORMS. Complaint for Services. 259. General Form. I. That from the day of j 18 , to the day of , 18 , at , the plaintiff rendered services to the de- fendant, at his request (5) * as his household servant \or otherwise. See the following forms]. II. That for said services the defendant promised to pay him dollars per month, (c) [(9r, II. That the same were reasonably worth dollars, which sum became due therefor on the day of , 18 .J III. That no part of the same has been paid. IV. [Zfemand, if necessary, as in Form 243.] the stipulated price, he may rest his ac- tion upon the duty raised by the law on the part of defendant to pay the price agreed upon, or he may plead the express agreement, and allege perform- ance. This rule is not affected by the Code. Farron v. Sherwood, V! N. Y., 237. The same rule applies where the plaintiif has rendered services which amount only to a part-performance by reason of an excuse, — for instance, his illness, which prevents him from com- plete performance. He is not bound, even here, to plead the contract and his excuse. Wolfe v. Howes, 20 JV. T., ^97. It has been held, however, that "If the contract contains such special provisions as to the mode of perform- ance as require an allegation of per- formance before the plaintiff would be entitled to recover, then the proper mode of declaring is stiU on the con- tract itself, and not on the general counts, setting it out at length, or in substance, with proper averments, to show that the conditions to the plain- tiff's right of recovery have all been complied with. Adams v. Mayor, &c., of N. Y., 4 Duer, 295 ; Atkinson v. Col- lins, 30 Ba/ri., 430 ; S. C, 9 AWotts' Pr., 353 ; Brown v. Colie, lE.D. Smith, 265. (6) The fact that the plaintiff has rendered valuable services to the de- fendant for which the defendant has refused to pay Mm, constitutes no cause of action. The services must have been rendered in pursuance of an agreement express or implied that they were to be paid for. Maltby i). Harwood, 12 Barb., 473 ; Livingston v. Aclieston, 5 Cow., 581 ; Wniiams v. Hutchinson, 3 W. T. (3 Comst.), 312 ; GrifBn «. Potter, 14 Wend., 209; Brunner v. Stout, Hard. {Ky.\ 225 ; Winston v. Francisco, 2 Wash. (Va.), 187 ; Lee «. Welch, 2 8tra., 793 ; 1 Selw. iy. P., 45 ; and cases infra- And where a promise to pay, made subsequent to the completion of the services, is shown, it must also be shown that the services were rendered at the defendant's request. Bartholo- mew V. Jackson, 20 Johns., 28 ; Frear V. Hardenbergh, 5 Id., 272 ; Force v. Haines, 2Sarr. (if. J.), 385 ; Parker v. Crane, 6 Wend., 647; Comstock v. Smith, 7 Johns., 87 ; Hayes v. Warren, 2 Stra., 938 ; Lampleigh «. Brathwait, 1 Smith's Lead. Gas., 67, and note. (c) Under a covenant to pay a salary at a certain rate, to be paid quarterly or half-yearly, according to the request of the plaintiff, the request is not a condition precedent, and it is not necJS' COMPLAINTS. 201 For Services, of Broker ; — of Carrier. 260. Tlie Same, Ifpon an Account, {d) I. That the defendant is indebted to the plaintiff on an ao- . ;ount for the work, labor, and services of the plaintiff [and his servants], * in [here state hriefly the nature of the services, — -see other forms'], performed at the request of the defendant, be- tween the day of , 18 , and the day of j IS , {e) in the sum of , and interest thereon from the day of ,18 .(/) . II. That no part thereof has been paid [except the sum of, &C.J 261. 2^or Commissions of BroTc&r. As in preceding forms, substituting at the *, as broker, in the purchase \or, sale, or, hotK] for defendant of stocks, bonds, and negotiable securities [or, of real estate in J, to the amount of dollars, (^) [continuing as above]. 262. For Freight, against Consignor. As in preceding forms, substituting at the *, in carrying in their vessel, the , from to , [100 barrels of flour, or, sundry goods and merchandise,] at the request of the defendant. (A) sary for tlie plaintifE' to state a special and the period within wliicli it arose, request or demand in the declaration ; Farcy v. Lee, 10 AVbotts' Pr., 143. but the bringing the action is itself (/) Bringing an action on a contract a legal demand. Ernst -e. Bartle, 1 for services and materials, is a demand Johns. Oaa., 319. of payment, and plaintiff is entitled to (d) This form is sustained by Moffet interest at least from the commence- V. Sackett, 18 N. T., 533. It is appli- ment of the action. Feeter v. Heath, cable even where there was an express 11 Wend., 477. contract, if the only thing special about (g) This is at least sufficient on de- the contract is the stipulation as to murrer. Merwin «. Hamilton, 6 Duer, price. 244. (e) In order to be sufficiently definite (A) That freight does not bear in- and certain, the complaint should show terest tm after demand. Schureman v. the nature and character of the claim. Withers, Anth. N. P., 330. 202 ABBOTTS' FOEMS. Complaints for Services, of Carrier ; — of Writer ; — of Architect. 263. The Sa/me, against Consignee. As in preceding forms, substituting at the *, in carrying in their vessel, the , from to , [100 barrels of flour, or, sundry goods and merchandise,] which were consigned to the defendant, and by the plaintiff delivered to him, and by him accepted. 264. For Writer'' s Services in Editing a Newspaper. (*) As in preceding forms, substituting at the *, as an editor, in conducting the newspaper of the defendants, known as " The ," and in writing and preparing articles and paragraphs for the same. 265. The Same, for Services in Editing or Compiling a Booh. As in preceding forms, inserting at the *, in compiling and editing a certain book entitled " The ," and in preparing the same for the press, and revising and correcting the proofs of the same. 266. By an Architect, for his Services. As in preceding forms, inserting at the *, as architect, in forming and drawing plans, and making estimates for, and superintending the erection of a dwelling-house to be known as No. , in street. (j) A stronger case is required to Donaldsons a. Becket, 17 Pari. Hist., raise an iniplied promise on tlie part of 990 ; judgment reported in 4 Burr., the publisher to pay for the services of 3408 ; Thurlow, a/rg. in Tonson v. Cpl- the author, than in the case of other lins, 1 W. Blackst., 306 ; Yates, arg., services ; and it seems that the fur- Id., 383 (this case was never decided) ; nishing of articles for publication at Beckford v. Hood, 7 T. B., 620, and see the request of the publisher is not of 627 ; Chappell «. Bir dy, 14 Mees. & itself a service for which a promise to W., 303 ; Jeffreys «. Boosey, 30 Eng, pay vnll be implied. See, as to the L. & M B., 1 ; "Wheaton ■», Peters, rights of the author without copy- 8 Pet., 591 ; S. C, 11 Curtis^ Decis., right. Opinion of Lord Campbell in 223. COMPLAINTS. 203 Services of Minor Son. For Wort and MaterialB. 267. By a Parent^ for Services of a Minor Son. I. That one C. B. rendered services to the defendant, at his request, as a clerk in his store at , from , 18 , un- til , 18 . II. That such services were reasonably worth dollars [or, allege price agreed, as in Form 259]. III. That the said C. B. is the son of the defendant, and was then, and is now under twenty-one years of age. IV. That uo part of the same has been paid. 268. For Work and Materials Furnished, (j) As in Form 259, substituting at the * in \Jiere indicate hriefly the nature of the services, — e. g., printing 1,000 copies of a book called "The "], and that the plaintiff then and there fur- nished the paper and other materials necessary in the said work iji) upon the like request, and that he delivered the same to the defendant. (j) If the services were rendered 63; SewaUu. Fitcli, 8 Cow., 215 ; Prince pursuant to a written agreement, it v. Down, 2 E. D. Smith, 525. And it may in some cases be necessary to has been held, that the lilaintlff cannot, plead the agreement specially. See on an account for goods sold, recover 7U>te (a), supra. merely upon proof of materials found by A distinction is to be observed be- him, and used in services rendered, tween a contract to sell goods then in CoUerell v. Appsey, 6 Taunt., 322. existence, and a contract for making (A) "Where an action is for work and and delivering goods not in existence, materials furnished in the perfonnance Crookshank v. Burrell, 18 Johns., 58, of such work, so that both items go to and cases there cited. Where the per- constitute but a single cause of action, son ordering the goods refuses to take this must be made to appear in the them' when made, it has been held, complaint, if the allegation is that the that the maker may deliver to a third defendant is indebted, &c., for services, party, with notice to the defendant, &c., and for goods and materials fur- and sue for goods sold (Bement «. nished, &c., the plaintiff may be com- Smith, 15 Wend., 493), or he may sue pelled to strike out one of the claims, on the contract for damages for its or amend by separating the causes of breach (but in these cases the Statute action, or showing that the items con- of Frauds may defeat the claim), or he stitute but one cause of action. Zunde' may sue for work done and materials v. Hintz, MS., Supreme Gt., Chambers, furnished. Cooper v. Elston, 7 T. B., 1862. 14 ; Rondeau v. Wyatt, 3 R. Blaekst., 204 ABBOTTS' FOEMS. Attorney's Services, &e. 269. The Same, on an Account. As in Form 260, inserting at the *, in [here indicate hriefiy the nature of the services, — e. g., in painting the house of the de- fendant in said town, or, in making a carriage for the defend- ant, or, in repairing the machinery in the mill of the defendant in said town], and for materials and other necessary things furnished by this plaintiff in and about said work, on the like request. 270. By an Attorney, for Services and Disbursements. (J). I. That the defendant is indebted to the plaintiff in the sum of , upon an account for the services of the plaintiff as the attorney of the defendant, (to) rendered upon his retainer, (w) between the day of , and the day of , in prosecuting and defending certain suits ; and for like services, at his request, in drawing, copying, and engrossing various in- struments in writing, and in counselling and advising him, the defendant, and for divers journeys and other attendances in and about the business of said defendant [according to the facts\, at his request ; and for money paid out and expended by this plaintiff for the defendant, at his request, in and about (Q This form is sustained by Beek- 143 ; Burgliart «. Gardner, 3 Barb., 64. man n. Platner, 15 Ba/rb., 550 ; and see It is not necessary, however, to show a 2 Ghitt. PI,, 68. written retainer ; that was anciently (to) If the services were rendered as required, but is so no longer, though attorney of another person than the de- the loractice of taking written retainers fendant, facts showing the defendant's has been strongly recommended. Owen liability therefor must be alleged. Mer- ». Ord, 3 Carr. de P., 349 ; Wiggins v. ritt 11. Millard, 5 Bosw., 645. Peppin, 3 Beav., 340. See, also, Allen {n) Since the Code, in the absence of d. Bane, 4 Id., 493. A parol employ- an agreement fixing the rate of com- ment vrill sufiice ; or the jury may in- pensation, a quantum meruit will be fer a retainer from acts of the client, in the measure of the recovery. the progress of the suit, amounting to In an action by an attorney for his a recognition of the attorney, or from ■ fees, it is necessary to aver and prove his undertaking to pay for the ser- 011 the trial, a retainer or employment vices. A pleading drawn in the haud- of the plaintiff as attorney, in the suit writing of the attorney and subscribed or business in which his services were by him, but verified by the party, ia rendered. Merely to show the per- sufficient evidence. Harper v WU formance of the services, is not suffi- Uaicson, 1 MeCord, 156. cieut. Hotchkiss v, Leroy, 9 Johns., COMPLAINTS. 20 { For School BiEs ;— For Board ;— For Advoi'L^lri^. said suits and business, which sum became due and payable, from the defendant to the plaintiff, on the da-' of 18 . . ^ II. That on said day [or, on the day of , 18 , at J, payment of the same was duly demanded {o) from the defendant by this plaintiff, but no part thereof has teen paid [except the sum of, &c.J 271. Mr Tuition Bills. As ill Form 260, substituting at the *, in instructing the de- fendant's children in various useful branches of learning, and for boobs, papers, and other necessary things furnished by th^'s plaintiff in and about said work, at the like request [and fc - the board, lodging, and other necessaries for said children, pn vided by the plaintiff during said time, at the like request! 272. For Board and Lodging. I. That from the day of ,18 , until the day of , 18 ,* the defendant occupied certain rooms in, and part of, the house No. street, , by permission of the plaintiff, and was furnished by the plaintiff, at his re- quest, with food, attendance, and other necessaries. II. That in consideration thereof, the defendant promised to pay dollars [or, the same were reasonably worth the sum of dollars]. III. That the defendant has not paid the same. 273. For Stabling of Horses. As in ^preceding form, 'inserting at the *, the plaintiff, at the request of the defendant, provided for, kept, and fed the two horses of the defendant. 274. By Proprietors of a Newspaper, for Advertising. I. That these plaintiffs, at the times hereinafter mentioned, were the proprietors and publishers of the daily newspaper known as "The ," published in (o) Demand is unnecessary, except to therefore need not be averred umess it charge the defendant with interest, and is intended to claim interest. 206 ABBOTTS' FORMS. / Complaints for Services ; — Advertising. II. That on the day of ,18 [or, if there were several insertions, between the day of , 18 , and the day of , 18 J, these plaintiffs rendered services to the defendant, at his request, in publishing in their said newspaper the advertisements of the defendant [or, of the , in which defendant was interested]. [Continue as in Form WO, paragraphs II. and III.] 275. By Advertising Agent, for Services and Disbursements. I. That between the day of , 18 , and the day of , 18 , at , this plaintiff rendered services to the defendants, at their request, in causing the defendants' advertisements of their business to be inserted in the following named newspapers and periodicals: [names cf papers, or an- nex aiid refer to a list] . II. That this plaintiff, for such insertions, for the use of the defendants, and at their request, paid out [and incurred liabil- ity to pay] the sum of dollars, the amount of which pay- ments, together with a reasonable sum for said services, the de- fendants promised to pay this plaintiff, {p) III. That such services were reasonably worth the sum ot dollars, which sum, with the amount of said disburse ments, became due on the day of > 18 5 but no part thereof has been paid [except the sum of ]. 276. On a Special Contract, Completely Fulfilled, {q) I. That on the day of , 1 8 , (r) the defend- ants [in consideration of ], (s) executed (;!) in writing ' {p) If the contract was in vrriting, as vfork, unless expressly authorized, the Is usual in large transactions, it may plaintiff, to recover for it, should allege be specially pleaded. either a special employment, or, if he (q) It is not always necessary to set relies on the defendant's acceptance of forth the contract as in this form. See it, should show that it was so distinci note {a), supra. If the plaintiff has a from the work called for by the con- claim for extra work done Independent tract that the latter might have heen , of the written contract, it may be stated accepted without the former. Duncan as a separate cause of action for servi- v. Commissioners of Miami, 19 Ind. ces and materials, &c., as in the pre- {Kerr), 154. ceding forms. (r) The time of making the con- If the contract set forth forbids' extra tract should be stated. 1 Chit. PI., COMPLAINTS. 207 On Contracts for Services, &c. under their hands and seals (m) [and delivered {v) to the plain- tiff] a contract {w) with the pla;intiif, of which the following is a copy : [copy, contract], {x) n. That thereafter and before the day of 5 18 , the plaintiff duly performed all the conditions thereof on his part, iy) 313. But under the Code it is only necessary where the complaint would not be sufBciently definite and certain without it. («) If the complaint avers that the agreement was under seal, it need not allege any consideration. The seal imports one. McCarty ■». Beach, 10 Cal., 461 ; Willis v. Kempt, 17 Id., 98. In Iowa and Indiana written agree- ments generally import a consideration. Tousley v. Olds, 6 Cte?'7c {Iowa), 536. {t) An averment that an agreement was " executed," amounts to an aver- ment that it was " subscribed" by the party to be charged. Cheney v. Cook, 7 Wis., 413. (m) The words "witness our hands and seals," and the " Locus Sigilli" in the copy of the instrument set forth, did not before the Code supply the place of an averment that the instrument was sealed (Cabell v. Vaughan, 1 Saund., 291, note 1 ; 1 Chit. PI, 109, 311 ; Van Santvoord v. Saudford, 13 Johns., 197 ; Macomb v. Thompson, 14 Id., 307 ; Stanton ■». Camp, 4 Barb., 374) ; al- though certain words of art, — e. g., " in- denture," "deed," "writing obligato- ry," — were held to import a seal. Ca- bell V. Vaughan, supra, and cases there cited ; and Id., 330, note 3. So an allegation that a party covenanted " by indenture," imports that the cove- nant was under seal. Phillips v. Clift, 4 Hurlst. & N., 168. (») Ail averment that one covenanted by his deed or other sealed instrument imported a delivery, and a distinct averment of delivery is not necessary, unless the time is material. Oro. Eliz., 178; Cro Jac., 430; 3 Ld. Baym., 1538 ; Tompkins v. Corwin, 9 Cow., 355; Cecil v. Butcher, 3 Jac. & W. 571 ; Brinckerhoflfj). Lawrence, 3 Sandf. Ch., 400. So an averment that defend- ant made his contract in writing, im- ports a delivery of it. Prindle v. Ca- ruthers, 15 N. T., 435. See Form 389, note (6). (w) It is only the actual and exist- ing contract, that should be pleaded. And if a former contract has been wholly superseded by a subsequent con- tract, the latter alone should be set forth. Chesbrough v. N. Y. & Brie R. K. Co., 13 How. Pr., 557. (cr) Instead of setting forth the con- tract, it will in many cases be more convenient to annex a copy, and say, "of which a copy is hereto annexed, and marked Exhibit A." It was held at common law that where a contract was uncertain, the pleader must aid it by alleging what he deemed its legal effect. Thus, if no time was stated, it must be averred that the performance was to be in a reasonable time, or vipOn request. Os- borne V. Lawrence, 9 Wend., 135 ; and see Coonley « Anderson, 1 Ilill, 519. But under the Code this is unneces- sary, for that which the law implies upon the facts need not be alleged. The only respect in which the contract needs to be aided in pleading is in al- leging a consideration, where this is not suificiently expressed or implied in the contract. {y) This is a suflBcient averment of performance. Code, § 103. In an action on a contract by which the plaintiff had bound himself to do certain acts, and to procure third par. 208 ABBOTTS' FORMS. Complaint on Special Contract fulfilled by Assignee. in. That on the day of , 18 , at , the plaintiff duly demanded of the defendants payment of the sum of dollars [being the last instalment] in said contract mentioned, is) lY. That no part of the same has been paid [except, &c.J 277. The 8a/me\ where the Contract was Fulfilled hy an I. That on the day of , at , defendants in consideration of , executed in writing under their hands and seals, and delivered, a contract with one M. N., of wliich the following is a copy [or, of which a copy is hereto annexed, and marked Exhibit A.] II. That thereafter and before the day of , said M. N. duly assigned the same, and all his rights under it to the plaintiff. III. That up to the time of the assignment, the assignor had duly performed all the conditions of the contract on his part, and that since said assignment, the plaintiff dxily performed all the conditions thereof on his part, (a) [Continue as above, III and IV.] ties to do certain acts, he may, under In such case the plaintiff should plead section 162, allege performance by aver- the modified contract. Smith ■». Brown, ring that he has fully and faithfully 17 Barb., 431. See Form of Complaint performed, &c., on his part; and add- on such a contract. Section XII., Art. ing that those on whose behalf he IV., infra. acted have also performed, is unneces- ^ {z) Demand need not be averred in sary. Rowland i). Phalen, 1 Bosw., 43. such an action, except where it is Where the plaintiff does not aver necessary to charge the defendant with performance in this short mode an- interest. thorized by the Code, but undertakes {n) One suing on a contract assigned to set forth the facts showing perform- to him may allege performance by say- ance, he may be held to aver them with ing that up to the time of the assign- the certainty required by the rules of ment the assignor had performed, on pleading before the Code. Hatch v. his part, all the covenants of the con- Peet, 33 Barb., 575. If the contract has tract, and that afterwards the plaintifi' been modified, it is not sufficient to use fully performed the conditions imposed the above allegation of performance, by the contract on the assignor. Cali- adding, " except" in such and such par- fornia Steam Navigation Co. v. Wright, ticulars. setting out the modifications. 6 Cal., 258. COMPLAINTS. 209 On a Compromise. Section VII. EXPKESS PROMISES (a) TO PAY MONEY UPON VARIOUS CONSIDERATIONS. 278. Upon a compromise of a suit p. 309 279. The same, for withdrawing opposition to the probate of a will 210 280. Upon a promise made to a third person, to pay money to the plaintiff. 210 281. On a promise to pay for the surrender of a lease 211 282. For the consideration-money of a conveyance 212 283. On an express promise, in consideration of a precedent debt 212 284. On a debt barred by the Statute of Limitations, or a discharge, and re- • vived by a new promise 213 278. Upon a Compromise of a Suit. I. That on the day of , an action was pending between the parties to this action, brought by the plaintiff to recover from the defendant the sum of dollars, which the defendant owed the plaintiff, but which he disputed. Q)) II. That in consideration that the plaintiff would discontinue his said action, and would accept dollars in satisfaction of said disputed claim, the defendant promised to pay the plaintiff the sum of dollars [on the day of ]. III. That the defendant accordingly did discontinue said ac- tion, (fi) \_0r, III. That the plaintiff has duly performed all the con- ditions thereof on his part.J (a) In pleading a contract which the gar «. Marvin, 4 Id., 393 : Dewey v. Statute of Frauds requires to be in Hoag, 15 Barb., 365; Washburn e. writing, it is not necessary to allege the Franklin, 7 Ahbotts' Pr., 8 ; S. C, less facts relied on to take the case out of fully, 28 Barb., 27 ; Thurman v. Ste- the statute. It is sufficient, on demur- vens, 2 JDiter, 609 ; and see Le Roy «. rer, to allege that a contract was made. Shaw, Id., 626 ; Merwin v. Hamilton, 6 Such an allegation is to be understood Id., 244. The rule is otherwise in ludi- ua intending a real contract, — some- ana. Estep v. Burke, 19 Ind. (Kerr), 87. thing which the law would recognize (5) A complaint on a promise in con- as such, and not repudiate as void. It sideration of a. compromise, should is held that there is no reason for de- show that there was some shadow of a parting, under the Code, from the for- claim (Dolcher v. Fry, 37 Barb., 152) ; mer well-settled rule in law and equity, though it need not show that the plain- The existence of a writing in such case tiff had a valid claim. Palmer v. North, is matter of evidence, it is not one of 35 Id., 282. the pleadable facts. Livingston «. (c) It must also aver that the litigation Smith, 14 Sow. Pr., 490 ; Stern v. was discontinued according to the corn- Drinker, '2, E. D. Smith, 401; Ambur- promise. Dolcher d. Fry, 37 5ar6., 152. Vol. I.— 14 210 ABBOTTS' FORMS. Complaint on Compromise. IV. That no part of said sum has been paid [except the snm of, &c.] 279. The Same^ for Withdrawing Opposition to the Prolate of a Will. I. That heretofore one M. !N. died, leaving him surviving A. B. this plaintiff, one of his heirs-at-law [or, next of kin]. n. That after his death the defendant [and others] produced and propounded for probate, in the court of the surrogate of , an instrument purporting to be the will of said M. 'E., whereby [a part of] the estate to which tlie plaintiff would have succeeded if said M. N. had died intestate, was devised and be- queathed to the defendant, {d) lit. That there were doubts as to the validity of said devises and bequests [or, of the execution of said will, or both'], and that the plaintiff threatened to oppose its probate on that ac- count, (e) IV". That in consideration that the plaintiff would withhold all opposition to the proving of the will, the defendant, on the day of , promised that he would pay to the plain- tiff the sum of dollars [on, &c.J V. That the plaintiff accordingly withdrew all opposition to the probate of the will, and it was thereupon duly proved be- fore said surrogate. [Or, V. That the plaintiff has duly performed all the con- ditions thereof on his part.] YI. That no part of said sum has been paid [except the sum of, &c.] 280. Upon a Promise made to a Third Person, to pay Money to the Plaintiff, (f) I. That on the day of , one M. N. was, and ever since has been, indebted to the plaintiffs in the sum of dollars. {d) The plaintiff should show that oppose it is enough. Seaman v. Sea- ne would have derived a benefit from man, 13 Wend., 381 ; Palmer «. North, setting aside the Tvill. Seaman «. Sea- 85 Barb., 283. man, 12 Wend., 381. (/) This form is sxipported by Dela (e) It need not be alleged that the ware & Hudson Canal Co. 5. West will was void. A substantial right to Chester County Bank, 4 Den., 97. COMPLAINTS. 211 On Promise to Pay for Surrendering Lease. n. That on that day, the said M. N., being the holder of a bill of exchange [describing it], indorsed and delivered the same to the defendants, in consideration of which the defend- ants then and there promised M. N. that they would endeavor to collect the same, and that when collected they would apply the proceeds in payment of said indebtedness of said M. K to the plaintiffs. III. That afterwards, and on the day of , the defendants collected and received the amount thereof, {g) rV. That no part of the same has been paid to the plain- tiff. (A) 281. On a Promise to'Pay fm the Surrender of a Lease, {i) I. That at the time hereafter mentioned, the plaintiff had a lease of a house and lot in tlie town of , for a term com- mencing on the day of > 18 , and ending on the day of ) IS , under which he was entitled to tlie possession of said house and lot. II. That on the day of ', the defendant being the owner of [or, having purchased] the reversion of said premise?, subject to the unexpired term of the lease, promised the plain- tiff that in consideration that he, the plaintiff, would surrendfjr to the defendant the unexpired term and the possession, he would pay the plaintiff the sura of dollars [on, &c.] III. That the plaintiff thereupon accordingly surrendered. tlio unexpired term and the possession to the defendant. [Or, III. That the plaintiff duly performed all the conditions thereof on his part.] IV. That no part of said sum has been paid [except the sum oi', &C.J (g) On a promise to pay money when to B., as well as to the plaintiff. If a collected, collection is condition prece- delivery to the former is, in law, snf- dent, and must be averred. Dodge v. flcient to satisfy the agreement, it is Coddington, 3 Johns., 146. matter of defence to be set up in the (h) In an action for a breach of an answer. Eowland v. Phalen, 1 Bosw., agreement to pay money to A. for the 43. benefit of B., it is not necessary to aver (i) This form is supported by Amble; that the defendants have refused to pay v. Owen, 19 Barb., 145. 212 ABBOTTS' POEMS. Complaints on Express Promises to Pay. V" 282. For the Consideration-^money of a Conveyance. (J) I. That on the day of , 18 , at , this plain- tiff sold and couvej'ed to the defendant, at his request, {Jc) cer- tain premises in the town of , known and described as follows : [designate the premises]. {I) II. That the defendant agreed to pay the plaintiff therefor the sum of dollars, on the day of , 18 ; III. That no part of the same has been paid [except the sum of, &C.J 283. On an Express Promise., in Consideration of a Precedent Debt, {m) 1: That on the day of , at , the defendant being then indebted to the plaintiff in the sum of dollars for [here state concisely the consideration, e. ff., goods hereto- fore sold and delivered by the plaintiff to the defendant], ii consideration thereof promised the plaintiff that he woiild pay him said sum on the day of - [or, on demand, or otherwise, as the case may ie]. II. That no part thereof has been paid [except the sum of, &C.J ( j) Assumpsit will lie for the consid- they are concluded hy the confirmation eration of a deed, although there was of the assessment. Stafford v. Mayor, no valid contract under the Statute of &c., of Albany, 7 Johns., 541. Frauds (Thomas v. Dickinson, 13 JT. T. (1) It is said that in assumpsit for (3 Kern.), 364), notwithstanding the lands sold, &c., as well as for use and deed contains a receipt for the consid- occupation, it is unnecessary to state eration. Shephard 1). Little, 14 Jolms., the situation, &c., of the lands, and 310 ; Bowen d. Bell, 30 Id., 338 ; Thom- unadvisable to do so, because a vari- as 1). Dickinson, 13 N. T. (3 Kern.), 864. -ance would be fatal. 3 Chitty's PI., (Jc) As to the necessity of an aver- 39, note e ; 43, note g. But under the ment of reqilest in assumpsit for the Code, the variance would be disregard- purchase-money of lands, see 1 Saund., ed, unless it was shown to have misled 364, note 1 ; Comstock v. Smith, 7 the defendant ; and a description suffi- Johns., 87, and cases there cited ; Par- cient to identify the premises is neces- ker V. Crane, 6 Wend., 647. The decla- sary to give the complaint the requisite ration of an owner of land taken for definiteness and certainty, local improvements, need not aver that (m) This form is supported by Har- the corporation has taken possession, if lem Canal Co. v. Spear, 3 Hall, 510. COMPLAINTS. 213 On Express Promises. 284. On a Debt hatred hy the Statute of Limitations, or a Dis- charge, and Revived hy a New Promise, {n) [Plead the original cause of action as in other cases, and con- timce.] (?t) This form sliould not be used witliout consideration, -for its propriety turns upon diverse provisions of differ- ent Codes and unsettled questions. See ante, 181), note {j). There is much conflict in the author- ities as to the proper mode of pleading a debt which has been barred by the Statute of Limitations, or by a dis- charge in insolvency or bankruptcy. It is settled in this State that in an action under the Code upon a demand which, but for a new promise, would be barred by the Statute of Limitations, the com- plaint may be upon the original de- mand ; and if the Statute of Limita- tions is interposed as a defence, the new promise or acknowledgment may be given in evidence to avoid it, without being alleged in the pleadings (Essels- tyn V. Weeks, 12 JST. Y. (2 Kern.), 635 ; S. C, 2 Abbotts' Pr., 272 ; Qark v. At- kinson, 2 E. D. Smith, 112) ; and it was the rule at common law that the action might be on the original demand, and if the Statute of Limitations were inter- posed the defendant might set up the new promise by replication ; and the same rule applied in the case of a debt revived by a new promise after a dis- charge in bankruptcy or insolvency. Shippey v. Henderson, 14 Johns., 178 ; Depuy V. Swart, 3 Wend., 135 ; Fitz- gerald 1). Alexander, 19 Id., 402 ; and see McNair v. Gilbert, 3 Id., 34A. In California it is held by a recent case that where a demand barred by the Statute of Limitations or by a dis- charge in insolvency, is revived by a new promise, the action must be on the original demand, and the new promise is only a waiver of the defence. Smith «. Eichmond, 19 Cal, 476. In Ohio the rule seems to be that where a new promise or acknowledg- ment has been made, the plaintiff may state the demand barred, as a con- sideration of the new promise, and allege the new promise in writing as the cause of action. Sturges v. Burton, 8 Ohio St., 215. In Iowa the new promise must be alleged. See 12 Iowa, 294. In the case of a voluntary release and a subsequent new promise reviving the debt it was held in Stearns v. Tappin (5 Duer, 294), that the action must be upon the new promise, and that a vari- ance between the allegation of a sub- sisting note, as a cause of action, and the evidence of a new promise to pay a note which has been extinguished by a release, cannot properly be disregard- ed on the trial. The only cause of ac- tion alleged in the complaint, viz., the note, is in such case disproved in its entire scope and meaning by the re- lease. Proof of the new promise would substitute a new cause of action, which the defendant had not been required to answer, and to which the defence in his answer was not at all directed. This question will be much simpli- fied by a more exact use of the term " cause of action." It may be urged with reason that where an indebtedness against which the statute has run or which has been released in any way so as to leave a debt of imperfect obliga- tion which the law will not enforce, but which is a sufficient consideration for the new promise, and a new promise is thereupon made, the original debt and the new promise are not separate caa- ses of action. The plaintiff has not two causes of action, there is but one. 214 ABBOTTS' FORMS. Complaints on Instruments for Payment of Money only. II. Tliat tliereafter on the day of , (o) in con- sideration of tlie foregoing facts, the defendant promised (^) to the plaintiff that he would pay such indebtedness, (q) III. That DO part of the same has been paid [except the sum of, &C.J Section VIII. SIIOET MODE OF PLEADING ON INSTRUMENTS FOE THE PAYMENT OF MONEY ONLY. [In an action or defence founded upon an instrument for the payment of money only, it is sufficient for a party to give a copy of the instrument, and to state that there is due to him thereon from the adverse party a speci- fied sum which he claims, (a) This is not applicable to instruments which provide for any thing else than the payment of money, — e. g., an action for rent on a lease.] (b) He has two sets of facts, either of which might perhaps support his action ; but averring both classes of facts, like as- signing two breaches of a bond, only states a single cause of action. Alleging both the original debt and the new promise may make a double issue, but it does not make a double cause of ac- tion. The Code does not disallow double issues. The above form is not sanctioned by authorities, for all cases ; but upon any view perhaps it might be sustained on demurrer, even in those States where it is held necessary to rely on the new promise. In Smith B. Richmond (15 Cal, 501), where the complaint framed in this way after alleging a note, went on to state that defendant having after- wards obtained a discharge in insol- vency, subsequently made a new prom- ise, it was held that the new promise should be deemed the cause of action, and the note merely inducement. ■ It may be obnoxious in this State to a motion to strike out. See Form 346, ante, and notes. (o) In pleading a subsequent promise, in order to avoid the Statute of Limita^ tions, it is necessary to aver definitely the time of such promise ; a general averment of repeated acknowledgments amounts to nothing. Bloodgood «. Bruen, 8 W. T. (4 Seld.), 363; reversing S. C, 4 Sandf., 427. (p) Where a promise to pay a debt is relied on to take a case out of the Statute of Limitations, it is not ne- cessary, in pleading, to aUege that it was in writing, signed by the party. Lynch ■». Musgrave, Sayei & Jones, 831. (g) If the new promise be conditional, it should be so stated, and performance of the condition averred. Wait «. Mor- ris, 6 Wend., 394. (a) Code of Pro., § 163. The earlier cases held that the plaintiff must also allege that the defendant made the instrument, and that the defendant owns it, and show how he became the owner in case he was not a party to it. But these decisions are now clearly overruled. Keteltas ®. Myers, 19 JT. Y., 281 ; Prindle v. Caruthers, 15 Id., 435 ; Genet D. Sayre, 12 A»otta' Pr., 347 , COMPLAINTS. 215 On Instruments for Payment of Money only. 285. General form p. 315 286. Averment of performance of conditions precedent 216 287. Avei-ment of consideration 216 288. Averment that defendant made the instrument 217 285. General Form. I. That his action is founded on an instrument for the payment of money only,* made and delivered by defendant to plaintiff, of which the following is a copy : [co^ of the instrument, (c) II. That there is due to the plaintiff thereon from the defend- ant the sum of dollars [with interest fi'om ], f which he claims, and asks judgment for. Butchers & Drovers' Bank ». Jacohson, \%AmotU' Pt., 318; Bv>an'» PZ., 183, 189 ; Ohio Life Ins. & T. Co. •». Goodiu, 1 Sandy, 81. The opinions in Prindle e. Caruthers, which is the leading case, are not harmonious, but that of Shank- LAKD, J., lavs down the rule that this provision constitutes an 'exception to the rule that the facts constituting the cause of action must be stated, and was intended to adopt and extend the brief method of declaring on bills and notes under the old practice, by annexing a copy to the money counts. Under that practice, where an indor- see suing an acceptor omitted to give a copy of the indorsement, the defect was disregarded. Delivery was sufficiently averred by implication, and indorse- ment is unnecessary to transfer the title. Purdy «. Vermilya, 8 N. T. (4 Seld.), 846. From this view of the statute it will follow that even if there are conditions precedent to the liability of the defend- ant, performance need not be averred. But as there are no cases in which this point has been passed upon, it may be thought better to aver per- formance as above in Form 286. (6) Suan on PI., 183. In Ohio this provision extends to accounts, and other instruments " for the unconditional pay- ment of money only." It is tliere held that a judgment cannot be so pleaded. Memphis Medical College v. Newton, 3 Eandy, 163. (c) Where the instrument was a note payable to G. W., and the plaintiff named himself as Gilbert W., it was held that he should be presumed the same. Marshall v. Kockwood, 12 How. Pr., 453. Where the defendants were named individually without alleging a partnership, and the instrument was signed in the name of one of them " & Co.," the complaint was held sufficient. Butchers & Drovers' Bank ■». Jacobson, 15 Abbotts' Pr., 318 ; S. C, 34 How. Pr., 304. If the instrument is in a foreign lan- guage it is sufficient on demurrer to set it forth in that language. Nourny «. Dubosty, 13 Abbotts' Pr., 138. But it is the better practice in such cases to plead it according to its legal effect, as in the forms given in subsequent sec- tions. All pleadings are to be in the English language (3' Bev. Stat., 375, § 9). And the court does not take judi- cial notice of the meaning of words in a foreign language, 216 ABBOTTS' FORMS. Performance. Consideration. 286. Averment of Performance of Conditions precedent. [Insert after the copy of the instrument,] II. That the plaintiffs [and the holders thereof] have duly performed all the condi- tions on their pai-t. {d) 287. Averment of Consideration, {e) [Insert after the copy of the instrument,'] II. That the defend- ant made the same for value received [or, made the same in {d) This is the short form of pleading the performance of conditions precedent in any contract, under § 162 of the Code — which provides that it shall not be necessary to state the facts showing such performance ; but it may be stated generally that the party duly performed all the conditions on his part ; and if such allegation be controverted, the par- ty pleading shall be bound to establish on the trial the facts showing such per- formance. See ante 208, notes (y) & (as). Section 57 of the English common- law procedure act, authorizes a general averment of the performance of condi- tions, as do our Codes ; and it is the common practice to aver, in the same general way, the happening of all events that are conditions, by saying that " aU things happened and all times elapsed necessary to entitle the plain- riff," &c. But this is held not to be authorized by the provision of the statute, and the adverse party may require a more particular statement of the happening of events other than the performance by the pleader. Williams on PI., 117, note n. This may be taken vrith some qualiiication where the events so averred may be presumed equally in the knowledge of the adverse party as of the pleader. The general averment of the per- formance and happening of all things necessarily imports a sufficient state- ment of being ready to do all things necessary in the future. Bentley v. Dawes, 9 Exeh., 666. In actions against indorsers of notes and bUls, and drawers of bills, the demand and notice necessary to charge the indorser may be more safely averred in the form given on page 232. See Conkling v. Gandall, 1 Eeyes, 228. Where the conditions contained in the contract have been modified, or plaintiff has become excused from them, an averment of performance is not proper ; the modifications or excuse should be stated, and performance alleged accordingly. Oakley b. Morton, 11 N. T. (1 Kern.), 25. But a tender, since it is an act in pais, and no part of the contract, is governed by a dif- ferent rule, and under an averment of a tender the plaintiff may prove a waiver of it by the defendant. Holmess «. Holmes, 9 N. T. (5 Seld), 525. The first of these rules as to pleading ex- cuse from conditions was applied, under the Code, in Garvey v. Fowler, 4 Sdndf., 665, and in Shultz v. Depuy, 3 Abbotts' Pr., 252, in a broader way than it would have been before the Code. In neither of these cases was the above provision of section 162, relied on. Compare, as to its effect in such cases. Smith ». Brown, 17 Barb., 431. («) Where the instrument neither expresses a consideration, nor, as in the case of a sealed instrument or negotia- COMPLAINTS. 217 Instruments for Payment of Money only. consideration of goods theretofore sold and delivered to liim by the plaintiff; or, of services theretofore rendered to him by the plaintiff, at his request, or otherwise state the nature of the con- sideration]. 288. Averment that the Defendants Made the Instrument, {f) I. That on the day of , 18 , at , the de- fendants [being then partners under the firm-name of Y. Z. & Co.J (g) made their promissory note [or, made and sealed their bond] in writing, of which the following is a copy : II. [^Oontinue as in Form, 285.] Section IX. COMPLAINTS ON PEOMISSOEY NOTES. [The most convenient form of plefiding bills and notes in ordinary cases is that given in the preceding section. More specific forms are here given, which the pleader will in some cases prefer to those, either for the purpose of setting forth extrinsic facts, or in order to put the defendant to specific denials. The forms in this section are appropriate for notes drawn without the words "or order," "bearer," &c., as well as for those containing such words.] {a) I. Payee against maker. 389. Ordinary form, pleading the legal effect of the note p. 319 390. On two notes, one being partly paid 330 291. Several notes given upon an agreement to pay all upon a de- fault in any .• 231 ble paper. Imports one, a consideration ceived," or "in consideration of," &o., should be averred (Spear v. Downing, as in Form 387. 12 Abbotts' Pr., 437); though perhaps {a) A written promise to pay to "A. this might be implied from the term B.," Without adding " or order,'' or "or " contract," if that were used to desig- bearer," is a promissory note within the uate the instrument. Prindle v. Caru- the statute. Burchell v. Slocock, 3 Ld. thers, 15 N. T., 425. Baym., 1545 ; Smith v. KendaU, 6 T. B., (/) This form may sometimes be 133 ; Downing ■». Blackenstone, 3 Gai., preferred in order to require specific 137 ; Goshen & Minisink Turnpike Co. denials from the defendant. «. Hurtin, 9 Johns., 317. (g) Where it is desired to aver a con- For complaints en notes payable in sideration, insert here "for value re- chattels, &c., see Section XII., Art. IX. 218 ABBOTTS' FORMS. Analysis of the Section. — . - 293. On a note signed by an agent p. 231 293. On a note made by partners 223 294. On the same ; another form, averring partnership of the makers 223 295. By partners, on a note payable to the order of their firm- name 233 396. By a surviving partner, on a note payable to the order of his late firm 224 397. By payee against surviving maker 224 398. By a receiver, payee, against partners, makers 225 399. By a manufacturing corporation, formed imder the general act, payees, against a foreign corporation, makers 335 300. By an insurance company, on a deposit note 326 301. On a note payable at a certain time after sight 227 802. On a note vrrongly dated 227 II. iNnOHSBB AGAUfST MAKBB. 303. First indorser against maker ; ordinary form, pleading legal effect 228 304. Second or later indorsee against maker 229 305. On a note payable to bearer, or to a fictitious person, or to the maker's own order 231 'III. INDOKSEB AGAINST INDOKSBB. 306. First indorsee against payee, indorser; ordinary form, plead- ing legal eflfect 231 307. Remote indorsee against the same 233 308. Remote indorsee against his immediate indorser 234 309. Special averment of excuse for non-presentment, where the maker could not be found 234 310. The same, where the indorser has waived notice 234 311. On a note which is not valid as against the maker 235 IV. INDOKSEB against MAKBB AND ESTDOESEE. 313. First indorsee against maker, and payee, indorser 235 313. Remote indorsee against maker, first indorser, and a later indorser 236 V. Payee against makbb and rsTDORSEB. 314. Payee having parted with full value on the faith of the in- dorsement 236 VI. By teansfbrbes of negotiable paper, not claiming by in- dorsement. 315. By an assignee of a note 237 316. On a bank-note 238 ' 317. On a negotiable bond payable to bearer 238 318. By the treasurer of an unincorporated company, on a notn payable to the former treasurer 239 ; 19. By receiver of mutual insurance company on deposit note . . . 840 COMPLAmTS. 219 On Promissory Notes. I. Payee against Makek. 289. OrdiiKwy Form., Pleading the Legal Effect of the Note. I. That heretofore the defendant made {h) his promissory note in writing, * dated on the day of , 18 , at , and thereby promised to pay to the plaintiff (o) [or his order] dollars, months {d) after said date [or, on the day of J. {e) \p) It is not necessary to add an aver- ment of delivery where the plaintiff is the payee. " Made" imports delivery. Churchhill v. Gardner, 7 T. B., 596 ,- Chamberlain e. Hopps, 8 Verm., 94 ; Eussell v. Whipple, 3 Cow., 536 ; Prin- dle B. Caruthers, 15 N. Y., 425 ; Keteltas V. Myers, 19 Id., 231 ; and see note {jg), p. 229, infra. (c) A complaint pleading a note ac- cording to its legal effect must state a payee, otherwise it seems it is demur- rable. White V. Joy, 13 N. Y. (3 Kern.), 83. In case the note is payable to the or- der of a fictitious person, and in case it is payable to the maker's own order, it is in law payable to bearer. 2 Bev. Stat., 178 ; Minet «. Gibson, 1 H. Blackst., 569 ; Masters v. Barrets, 2 Car. & K., 715 ; Plets v. Johnson, 3 Hill, 112. {d) A variance of one month in the time of a note described, was disre- garded in Trowbridge v. Didier {iDuer, 448), as immaterial, the defendant not having been misled. Where no time of payment is named, the note is due immediately (Thomson e. Ketcham, 8 Johns., 1^9; Gaylord u. Van Loan, 15 Wend., 308 ; Peets «. Bratt, 6 Bar\>., 662j ; and interest runs from date, and without demand. On such a note a count stating no time of payment is good. Herrick v. Bennett, 8 Johns., 374. («) No consideration need be averred ; for every note within the statute im- ports a consideration. Bank of Troy ■». Topping, 13 Wend., 557 ; Goshen Turn- pike Co. v. Hurtin, 9 Johns., 217 ; Con- roy ». Warren, 3 Johns. Cas., 259 ; Prin- dle V. Caruthers, 15 N. Y., 435. Where the complaint on a promis- sory note shows that by agreement of the parties its payment was made con- ditional upon the payment, iy the payee, of a certain debt of the payor, such payment is a condition precedent to plaintiff's right to recover on the note, and must be averred in the com plaint to have been made. Rogers v. Cody, 8 Col., 324. . It is unnecessary to insert here, " that the plaintiff is the lawful owner and holder of said note," for the facts before stated show his title, by averring that it is payable to him. Such allegation is equally unnecessary where the com- plaint is by an indorsee, and alleges that the note was indorsed to him by the payee. Benson v. Couchman, 1 Code R., 119; Appleby v. Elkins, 2 Bandf., 673 ; S. C, 3 Code B., 80 ; Tay- lor V. Corbiere, 8 How. Pr., 385 ; Loomis V. Dorshimer, Id., 9 ; Bank of Loiwille V. Edwards, 11 Id., 316 ; Peets v. Bratt, 6 Barb., 662 ; Ohio Life Ins.& Trust Co. V. Qoodin, 1 Handy, 31 ; Niblo v. Har- rison, 7 Abiotts" Pr., 447. And when the plaintiff's title is shown in such a way, a denial of the additional allega- tion, that he is the lawful owner and holder, is frivolous. Catlin v. Gunter, 1 Buer, 253, and cases there cited; Fleury v. Eoget, 5 Sandf., 646, 220 ABBOTTS' FORMS. Complaints, against Maker of Notes. 11. That no part of said note has been paid (_/) [except the sum of, &C.J (g) 290. On Two Notes^ one leing Partly Paid: First. For a first cause of action, (/i) I. That heretofore the defendant made his promissory note in writing [continue as in Form 289, from the *]. {i) II. That no part thereof has been paid, except the sum of dollars. Second. For a second cause of action. I. That heretofore the defendant made his other promissory note in writing [continue as ahove]. II. That no part thereof has been paid. Wherefore the plaintiff demands judgment against the de- fendant for the sum of [aggregate princijpal], with interest on dollars thereof from the day of , and (/) At common law, if it appeared from the declaration tliat tlie note was not yet payable, a demurrer would lie. Waring?). Yates, 10 Johns., 119 ; Lowry «. Lawrence, 1 Cai., 69. Under the Code it is not necessary that the com- plaint allege that the time for pay- ment has elapsed. Peets v. Bratt, 6 Barh., 663 ; Maynard «. Talcott, 11 Id., 569 ; Smith i>. Holmes, 19 N. T., 271 ; Keteltas ■». Myers, Id., 231. As against the maker of a note, pay- able on demand, no demand before suit is necessary. Haxton ii. Bishop, 3 Wend., 13. It makes no diflference that the note is made payable at a particular place, at a day certain ; yet if the maker was ready to pay at the tinle and place, he may plead that, as he would a tender, in bar of damages and costs, bringing the money into court. Wolcott D. Van Santvoord, 17 Johns., 248 ; Caldwell v. Cassidy, 8 Cow., 271 ; Troy City Bank V. Grant, Sill & D. Supp., 119 ; Haxton v. Bishop, 3 Wend., 1 3. So, also, of a bill of exchange, as against the accep- tor thereof. Foden ■». Sharp, 4 Johns., 183; Wolcott V. Santvoord, 17 Jd, 248 ; Green v. Goings, 7 Barb., 652 ; 17 Mass., 389 ; Gay i). Paine, 5 How. Pr., 107; WaUace ». McConuell, 13 Pet.. 136. On a note made in another State, and bearing higher interest than is lawful by the law of the forum, the foreign statute need not be pleaded, for the court may presume that the common law, by which any rate of interest is lawful, prevails in the law of the place of the contract. Buckinghouse v. Gregg, 19 Ind. [Kerr), 401. {g) It is not necessary to add m averment that the defendant is in- debted, &c. Connecticut Bank v. Smithy Q Abbotts' Pr.,l&B,. (h) Several notes are several causes of action, and must be separately stated. Van Namee ». Peoble, 9 How. Pr., 19S ; Dorman v. Kellam, 4 Abbott^ Pr., 302. The contrary is held in Iowa. Merritt «. Nihart, 11 Iowa, 57. (i) If preferred, a, copy of the note may be set out as in Foi'm 285, by con- tinuing as in that form from the * to the-j-. COMPLAINTS. 221 On Promissory Notes. with interest on dollars thereof from the day of 291. On several Notes given wpon an Agreement to pay All upon a Default in Any. (J) I. That upon the day of > 18 , the defendants were indebted to the plaintiffs in the sum of dollars. II. That to secure the payment of that sum the defendants agreed to deliver, and did make and deliver to the plaintiffs their promissory notes in writing, of which copies are hereto annexed. m. That at the same time the defendants agreed with the plaintiffs in writing that in case of any default of the payment of any of the said notes at any time when the same should become due and payable, the whole amount of the said sum of dollars and interest, then remaining unpaid, should forthwith, at the option of the plaintiffs, become at once due and payable. lY. That the defendant has made default in the payment of the first of said notes which became due and payable on the day of , and no part thereof has been paid. 292. On a Note signed Ixy an Agent. I. That heretofore the defendant, by one M. N:, his agent (^) ( j) This form is supported by Brown has often his election to state the act •5. Southern Michigan E. R. Co., 6 Ab- in either way. hotts' Pr., 237. The action is rather It has been held, that in the common upon the special agreement than on counts it is not necessary to state that the note, but the consideration and the defendants acted by an agent, but origin of the indebtedness need not be that an averment that the act was the stated. 3,ct of the defendants would be sup- (A;) The question often arises, whether ported by proof of the act of their an act done by an agent should be agent. Sherman v. N. T. Central R. R. pleaded as the act of the principal, or Co.; 22 Barb., 289. The case of Dollner whether the agency should be stated. ■». Gibson (3 Oode B., 158), in which the Wliere the pleading shows, by setting words in the complaint showing tho out a copy of the instrument, that the agency by which the defendant acted act was by an agent, his authority were struck out on motion, as setting fchould be averred. McCuUough v. Moss, forth, not a pleadable fact, but mere 5 Den., 567. In other cases the pleader evidence, was reversed on appeal. 222 ABBOTTS' FORMS. Complaints on Note made hy Agent ; — by Partners. lor, his attorney in fact], duly authorized {I) thereto, made his promissory note in writing, dated on the day of , at ; and thereby promised to pay to the plain tiif [or his order], dollars, months after said date [or, on the day of ]. II. That no part thereof has been paid [except the sum of, &c,] 293. Gn a JVbte made ly Partners. I. That heretofore the defendants, under their firm-name of Y. Z. & Co., irn) made their promissory note in writing, dated In St. John «. Griffitli (1 Abbotts^ Pr., 39), amotion to strike out an averment that the defendant acted by his agent ■was denied, on the ground that it was a fact necessary to be stated. Ives v. Humphreys (1 M B. Smith, 196) was an action of trespass, where two of the defendants actually committed the act, and a third defendant instigated and employed them to do it ; and the state- ment of the fact in that form was deemed to be more proper than would have been an averment that all of the defendants entered, &c. In Bennett v. Judson (31 JST. T., 3B8) it was held that fraud committed through au agent is well stated in pleading as that of the principal ; or if this were otherwise, and it appeared at the trial to be that of an agent without any participation of his principal, the variance would be subject of amend- ment, and should be disregarded upon appeal. See, also, Cuitis v. Fay, 37 Barb., 64. That it is the better prac- tice to state the fact that the defendant acted by an agent, see, also, 3 G?iU. PL, 117 ; 1 Wenfw., 845. (Q The ratification by a principid, of an unauthorized act of an agent, has a retroactive efficacy, and being equivar lent to an original authority, an allega- tion of due authority is sustained by proof of such ratification. Hoyt v. Thompson, 19 JST. T., 307. (m) An indorsement or signature of a note, in the name of a firm, by a part- ner, may be alleged as made by the firm. It is sufiicient to set forth a vmting according to its legal effect. Manhattan Co. v. Ledyard, 1 Cai., 193 ; S. C, Ool. & a Cos., 336 ; VaUett «. Par- ker, 6 Wend., 615 ; and see Bass v. aive, 4 Campb., 78. So, also, of joint makers not alleged to be partners. (3 Camp., 305.) Mack )). Spencer, 4 Wend., 41L Otherwise, if the allegation be "their own proper hands, and names being thereunto subscribed." Pease e. Mor- gan, 7 Juhns., 468. So, also, under a declaration that of three defendants, two were partners, and that the defendants made a note, their own proper hands being there unto subscribed, plaintiff may recover on proof that one of the partners signed the firm-name, and the other defendant his own. Porter v. Cumings, 7 Wend., 173. In an action against one M. as the maker, and others as indorsers, of a promissory note, a complaint which set forth a copy of a note signed M. & Co., upon which it alleged the defendants were indebted, &c., was held bad on demurrer, as showing a partnership note as a cause of action against an individual. If there was no real firm, it should have been alleged that the COMPLAINTS. 223 On Notes made by Partners. on the day of , at ; and tlierebj promised to pay to the plaintiff [or his order] dollars, months after said date [o?; on the day of J. 11. That no part thereof lias been paid [except the sum of, &C.J 294. On the Same / Another Form^ averring Partnership of the Makers, (n) I. That at the time of the making of the note hereinafter mentioned the defendants were partners doing business at , under the firm-name of Y. Z. & Co. II. That on the day of , the defendants, under said firm-name, (p) made their promissory note in writing, dated on that day, at ; and thereby promised to pay the plain- tiff [or his order] dollars, months after said date [or, on the day of ]. III. That no part thereof has been paid [except the sum of, &c.] 295. By Partners., {p) on a N'ote payable to the Order of their Firm-name. I. That heretofore the defendant made his promissory note in writing, dated on the day of , at ; and there- by promised to pay to these plaintiffs under their firm-name {<][) note was signed by M., in tbe name of partnership. Anable v. Steam-Engine M. & Co. This objection is not strictly Co., 16 Abbotts' Pr., 386. for defect of parties, but that the com- (o) "Where a partnership between plaint does not, on its face, show an in- the makers is averred, it would be suf- divid ual liability on the part of M. ficient to state that the said firm made Price «. McClave, 6 Duer, 544; affirm- the note. Manhattan Co. «. Ledyard, ing S. C, 5 Id., 670 ; 3 Ahbotts' Pr., 1 Cai., 193 ; S. C, Col. & 0. Gas, 336 3o3. See note (m), supra. (n) Where the fact of partnership is {p) Under the Code, a dormant part- likely to be drawn in question, it will ner is a necessary co-plaintiff. Secor v. sometimes be better to aver the fact Keller, 4 2>i<«r, 416. Otherwise before : distinctly. See Oechs v. Cook, 3 Duer, lb. ; and Clark v. Miller, 4 Wend., 638. 161.. The averment of copartnership And it is otherwise of a special partner is immaterial, vmless the defendant imder the statute. 3 Rev. Stat., 173, denies the execution of the note. Whit- § 14. well V. Thomas, 9 Oal:, 499. A mere (q) The plaintiffs must show them- denial of the iict is not a denial of the selves to be the persons composing the 224 ABBOTTS' FORMS. Complaints on Notes Payable to a Finn. of A. B. & Co. [or their order], dollars, months after said date [or, on the day of j. II. That no part thereof has been paid [except the sum of, &C.J 296. By a 8v/rvimng Partner, (r) on a Note payable to the Orde/r of his Late Firm. I. That, at the time of the making of the note hereinafter mentioned, the plaintiff and one 0. D. were partners, doing business under the firm-name of A. B. & Co. II. That on the day of , 1 8 , at , the defendant made his promissory note in writing, dated on that day ; and thereby promised to pay to them, under their said firm-name [or their order], dollars, months after said date [or, on the day of ]. III. That no part thereof has been paid [except the sum of, &c.] IV. That on the day of , 18 , at , said C. D. died, leaving the plaintiff the sole surviving partner of said firm, {s) 297. By Payee against Surviving Maker. I. That at the time of the making of the note hereinafter mentioned, the defendant and one W. X. were partners, doing business under the firm-name of T. Z. & Co. firm. McGregor v. Cleveland, 5 Wend., -witli his firm before Lis copartner's de- 475 ; Ord v. Portal, 3 damp., 239, note ; cease. Bernard v. WUcox, 3 Johns. but see WardeU v. Pinney, 1 Wend., Cos., 374, and cases there pited. 317. (s) In an action by a surviving part- A distinct averment of the fact of ner, on a chose in action -which was of partnership between the plaintiff's, is the partnership, the death of the de- only necessary vl^hen their right of ac- ceased partner and the plaintiffs sur- tion depends upon the partnership, vivorship must be stated. Holmes v. When a joint ownership or joint con- De Camp, 1 Johns., 34 ; Jell ». Douglass, tract wiU enable them to recover, it is 4 Bwmw. dbA., 374 ; S. C, 6 Eng. Com. no objection to their complaint that L. B., 451. But otherwise if the note ■^lieir partnership is not pleaded. Loper w^e originally made to or the account V. Welch, 8 Duer, 644 ; and see Oechs stated by the survivor, although the V. Cook, Id., 161. consideration proceeded from "the part- (r) The surviving partner may sue nership. lb.; S. P., White v. Joy, 13 in his own name on a debt contracted iV. Y. (3 Kern.), 83. COMPLAINTS. 225 On Note Payable to Receiver ; — to Corporation. n. That ou the day of , 18 , at , they made, under their said firm-name, their promissory note in writing, dated on that day ; and tliereby promised to pay t'j- the plaintiff [or his order], dollars, months after said date \or, on the day of ]. III. That no part thereof has been paid [except the sum of, &c.] lY. That on the day of , 18 , at , said "W". X. died, leaving the defendant the sole surviving partner of said firm. 298. By a Receiver, Payee, against Parimirs, Mahtrs. {t) I. That heretofore the defendants, under their firm-name of Y. Z. & Co., made their promissory note in writing, dated on that day ; and thereby promised to pay to the plaintiff, as such receiver (w) [or his order], dollars, months after said date {or, on the day of ]. II. That no part of the same has been paid [except the sum of, &c.] 299. By a Manufacturing Corporation formed under the Gen- eral Act, Payees, against a Foreign Corporation, Mahers. I. That the plaintiffs are a corporation created by and under the laws of this State, organized pursuant to an act of the Legislature entitled "An Act to authorize the formation of Corporations for Manufacturing, Mining, Mechanical, and Chem- ical purposes," passed February 17th, 1848, and the acts amend- ing the same, (v) II. That the defendants are a corporation duly cliartered by (J) This form Is supported by White ter is once suflBciently stated, the word e. Joy, 13 N. T- (3 Kern), 83. plaintiff in subsequent parts of the (m) The act should be averred as pleading requires no addition of the . that of the party as such receiver, &c. description. Merritt v. Seaman, 6 N. T. (3 Sdd.), (®) This form of averment is sup- 168, and cases there cited. This clause ported by N. Y. Floating Derrick Co. it. was contained in the complaint in N.J. Oil Co., Z Duer, 648; Oswego & Smith D. Levinus, 8 N. T. (4 8eld), Syracuse Plank-road Co. ». Bust, 5 472 ; and see Gould v. Glass, 19 Barb., How. Pr., 390. It is not, however, 179 ; Sheldon ■». Hoy, 11 Sow. Pr., 11. necessary in the case of a domestic coi Where, however, the plaintiff's charao- poration plaintiff. Vol. I.— 15 226 ABBOTTS' FORMS. Complaint on Insurance Note. and under the laws of the State of New Jersey, and pursuant to an act of the Legislature of said State entitled \title of the aci], passed [date of enactment], {w) III. That on the day of , 18 , at , the defendants, being such corporation, by their agent duly author- ized tliereto, made {x) their promissory note in writing, dated on that day ; and thereby promised to pay to the plaintiffs (y) [continue as in Form 289]. 30©. By an Insurance Company .^ on a Deposit Note, {z) I. That the plaintiffs are a Mutual Insurance Company, duly organized under and pursuant to an act of the Legislature of this State, entitled , and passed on the day of , and the acts amending the same. II. That on the day of at the defendant {w) This form of averment is sup- ported by the Mutual Benefit Life Ins. Co. D. Davis, 13 N. T. (2 Kern.), 569 ; N. Y. Floating Derrick Co. v. N. J. Oil Co., 3 Buer, 648. {x) In the absence of any prohibitory statjite, a corporation may give a note for a debt contracted, in the course of its legitimate business, although not specially authorized by statute to make promissory notes. Mott v. Hicks, 1 Gow., 513 ; and see page 533, and cases there cited. Moss «. Oakley, 3 EUl, 365 ; Attorney-general v. Life & Fire Ins. Co., 9 Paige, 470 ; Kelly «. Mayor, &c., of Brooklyn, 4 EUl, 263 ; McCul- lough «. Moss, 5 Den., 567. And where there is nothing on the face of the note to show that it was issued contrary to law, or to raise a suspicion that the , consideration or the purpose was ille- gal, the presumption is that it was given for a lawful purpose. Safford v. Wyckoff, 4 EUl, 443 ; Barker v. Me- cluinics' Fire Ins. Co., 3 Wend., 94; 1 Met. Stat., 768, § 3. It was said, in Mechanics' Banking Association t. Spi-ing ■yialley Shot and Lead Co., 13 Mow. Pr., 327, that it must be fur- ther alleged that the note was trans- ferred in the ordinary course of busi- ness. But by the weight of authorities as well as by general principles, the making of the note having been proved, the presumption would be in favor of its validity, and the burden of proof would be on the defendants to show the contrary (see the cases above cited). The power of the corporation being genera], if the defendants' case is an exception, it rests with them to plead the fact. It is, moreover, a fact which lies more particularly within their knowledge. And it is settled in the N. Y. Superior Court that a complaint in the above form is sufficient. N. Y. Floating Der- rick Co. V. N. J. Oa Co., 3 Euer, 648. If the pleader desires, he may insert at (x), " to these plaintiffs in the course of the legitimate business of said de- fendants, as by law they had power to do, their promissory note," &c. {y) Prima facie, a corporation has power to take a promissory note. Mu- tual Benefit Life Ins." Co. v. Davis, 13 M. T. (3 Kern.), 569. (z) For a complaint by the receiver of a company, see Form 319. COMPLAINTS. 227 On Note Payable after Sight. Mistake in Date. made his promissory note in writing, dated on that day ; and thereby promised to pay to the plaintiffs the sum of dol- lars, in such portions, or at such time or times as the directors should, agreeably to their charter and by-laws, require. III. That the plaintiffs by their directors, agreeably to the said charter and to the by-laws of the corporation, on the day of , at , required the defendant to pay the sum of dollars, a portion of said note, on the day of , (a) [Or, III. That the plaintiffs have duly performed all the con- ditions thereof on their part, by requiring the defendant to pay the sum of dollars, on the day of IV. That no part thereof has been paid [except the sum of, &c.] 301. On a JVote payable at a Certain Time after Sight. I. [Allege the note as in preceding forms.] II. That on the day of , 18 , at , said note was duly presented to the defendant [maJcer], with notice that payment was required according to the terms thereof (5) III. [Allege non-payment, as in preceding forms.] 302. On a Note Wrongly Bated, (c) I. That on the day of > 18 , the defendant made his promissory note in writing, bearing date, by mistake, on the day of , 18 , whereas, in truth, it was intended to bear date on said day of , 18 , and thereby (a) In an action upon a " premium the time when it was ordered to be note" given, since the act of 1853 took paid should be stated. Atlantic, &c., effect, to a mutual insurance company, Ins. Co. «. Young, 38 N.S., 451. It assessment or apportionment is a con- would be better to state the facts, show- dition precedent, necessary to be aver- ing that the assessment was regular red in the complaint and proved on the according to the statute relied_on ; or trial. Devendorf«. Beardsley,23 5tw6., to plead the sam-e as a condition prece- 656 ; Williams v. Babcock, 25 Id., 109 ; dent, according to section 102 of the Hurlbut ». Koot, 12 How. Pr., 511. See Code, as in the paragraph in brackets. Williams v. Lakey, 15 Id., 206. It (6) In a note payable at a certain should be averred that the assessment time after sight, " sight" is a condition ordered by the directors was ordered precedent. See 2 Chit. PL, 134. agreeably to the act and by-laws, and (c) See 2 Chit. PI , 117. 228 ABBOTTS' FORMS. Complaints by Indorsees of Notes. promised to pay the plaintiff [or his order], dollars, days after said [intended date']. n. That no part thereof has been paid [except the sum of, &c.] II. Indoesee against Maker. 303. By First Indorsee. Ordinary form, id) pleading the Legal Effect. I. That heretofore the defendant [makerl made his promis- sory note in writing, dated on the day of , at ; and thereby promised to pay to the order of one M. N., (e) dollars, months after said date \or, on the day of , ]. II. That said M. N. {e) thereafter [and before its maturity] [f) indorsed {g) it to the plaintiff (A) [for value]. {/) III. That no part thereof has been paid [except the sum of, &c.] id) For a short form, see Form 285. («) If the payees are a partnership, it is enough here to designate them by the firm-name. Wliere the plaintiff's title to the note is deduced through a firm, the names of the members of the firm need not be set out unless they are defendants. It is sufficirent in such cases to allege^ generally, that M. N. & Co. indorsed it. Cochrane li. Scott, 3 Wend., 229 ; Bacon i;. Cook, 1 Sandf., 77. An allegation that a corporation in- dorsed and transferred and delivered to the plaintiffs the note sued on, suffi- ciently implies that the transfer was made pursuant to a resolution of the board of directors, if such resolution is necessary ; for the allegation is not true if the transfer was ^ not made by the proper officer, and according to law. So an allegation, that after the transfer the company became insolvent and was dissolved, is an indirect statement that it was solvent when the transfer was made. Nelson v. Baton, 15 How. Pr., 805. (/) The words "before its maturi- ty," and " for value," are not material to the cause of action, and the only reason for inserting them can be that in some cases they might, perhaps, be deemed necessary to render the com- plaint sufficiently definite and certain. Unless the contrary is shown, the in- dorsement will be presumed to have been made before maturity. Pinker- ton «. Bailey, 8 Wend., 600 ; Pratt «. Adams, 7 Paige, 615 ; Nelson «. Cow- ing, 6 Mill, 336 ; Case «. Mechanics' Banking Association, 4 N. T. (4 Gomst.\ 166 ; and see James «. Chalmers, GN.7 (3 8eU), 209. The indorsement, as well as the mak ing of a note, imports a consideration i and before the Code it was held that no consideration need be alleged in pleading. Hughes v. Wheeler, 8 Cow., 77 ; Cruger v. Armstrong, 3 Johns. Cos., 5 ; Conroy ■». Warren, Id:, 259 ; Safford v. Wyckoff, AHUl, 443 ; Nelson v. Cow- ing, 6 Id., 336 ; Wheeler v. Guild, 30 Pick., 550 ; CoUins «. Martin, 1 Bos. & P., 648 ; Ogden b. Saunders, 13 Wheat, 313, and see 341 ; Appleby «. Elkins, 3 Sandf., 673 ; S. C, 2 Code B., 80. COMPLAINTS. 229 On Promissory Notes. 304. Second or Later Indorsee against Maker. I. That heretofore the defendant \maTcer\ naade his promis- sory note in writing, dated on tlie day of , at ; and thereby promised to pay to the order of M. N. & Co. dollars, days after said date \or, on the day of ]. II. That said \jpayee\ thereafter indorsed it, and delivered it so indorsed; and thereafter [and before maturity] (i) the same was indorsed [or, passed] (y) to the plaintiff [for value], (-i) A consideration for the indorsement is not necessary, except to charge the indorser, and therefore an averment of value Here is immaterial. As, however, the time and the con- sideration of the transfer are facts within the plaintiff's knowledge, and cannot be presumed to he within the the knowledge of the maker, the de- fendant, a complaint in this form, hut omitting to show whether the transfer was before or after maturity or for value or not, might be considered to be not suflBciently definite and cer- tain. The latter clause of section 163 may be thought to control the question where a copy is set out ; but, apart from that, it would seem that the defendant has a right to be ap- prised of "the precise nature of the charge," with suflScient detail to know whether his equities against the for- mer holder are available as a defence. This question does not appear to have been raised. The phrase, in a declaration on a note, that the plaintiff received it " be- fore maturity, 'bona fide, and in due course of trade," means that he took it for value. Miller v. Mayfield, 37 Mim. (8 George), 688. ■ i.g) An averment that a note was in- dorsed to A., imports delivery to him. Bank of Lowville v. Edwards, 11 Sow. Pr., 216 ; Appleby •». Blkins, 3 8andf., 673; N. Y. Marbled Iron Works v. Smith, 4:Duer, 363 ; Griswold v. Lover- ty. 3/(?., 690; S.C, 13 JT. Y. Leg. Obs., 316 ; Burrall ». De Groot, 5 Duer, 379 ; Marston v. Allen, 8 Mees. & W., 494, and cases there cited ; and see Purdy v. VermUya, 8 N. T. (4 Seld), 346 ; Chit, on Bills, Forms, 553, 554. (7i) On a note payable to a third per- son, plaintiff must set forth by what right he claims it. Montague n. Reine- ger, 11 Iowa, 503 ; Bennett 13. Crowell, 7 Minn., 385. When the complaint alleges that the defendant gave the note to the payee, who indorsed and delivered it to the plaintiff, and the answer does not deny this allegation, the defendant cannot prove that the payee had no capacity to transfer, and thus indirectly contro- vert the transfer. Robbing v. Richard- son, 3 Bosw., 348. ii) As to the necessity of the phrases "before maturity" or "for value," see noi&{f),supra. It is sufficient to say, that "the same came lawfully to the posses- sion of the plaintiff for value." Phelps V. Ferguson, 9 Allotts' Pr., 206 : Lee v. Ainslee, 1 Eat, 377; S.C, i Abbots Pr., 463. ( j) The word "indorsed" is not essen- tial. Alleging that it was passed to the plaintiff is sufficient. Price v. Mc- Clave, 6 Duer, 544. So " transferred" is sufficient. Taylor v. Corbiere, 8 Sow. Pr., 385. It was, however, held in Mon- tague V. King, 37 Miss. (8 George), 441, that the term " transfer" in a declara- tion, when applied to notes, implies a passing of the beneficial interest, but not necessarily of the legal title. 230 ABBOTTS' FORMS. Indorsement of Note and Transfer to Plaintiff. . Ogdens- 503; Suydam ii. WestfaU, 4 Sill, Sll.i burgh,' Qayton & Home E. E. Co., 15 See Complaints foe Monet Lent, W. Y., 337. Paid, &n , ante, 160. (i) See note (a), supra. (h) In an action by the payee of a {fj A -written acceptance of an order draft drawn by the president of a cor- for the delivery of goods is not a sale ; poration on the treasurer of the corpo- it is only a promise to deliver them ration, for payment of an indebtedness upon request, and should be declared of the corporation to the ■ payee, the on as such. Burrall i). Jacot, 1 Barb., complaint may be framed as on a proi»- 165. COMPLAINTS. 249 By Payee of Bill of Exchange. to pay to one O. P., out of the proceeds of [state fund as in the hill], dollars, days after the date [or, sight] thereof [or otherwise], for vahie received, and delivered it to said [paijee]. II. That on the day of , at [or, then and there], upon sight thereof, the defendant accepted the same, payable, when in f'lnds, from the proceeds of [&c., as in accept- ance]. (Jc) III. That on the day of " , 18 , at , said [payee] duly assigned said bill to this plaintiflp. IV. That on the day of ; 18 , the defendant had funds of the said [drawer], proceeds of, &c. V. That payment of said bill was, on the day of , 18 , at , duly demanded by this plaintiff from the de- fendant. YI. That 130 part thereof has been paid [except the sum of. &c.] II. Payee against Drawee. 326. Cw a Bill Payable at a Certain Time after Date or Sight,— for Non-acceptance, (l) I. That on the day of , 18 , at , the defendants [drawers], [under their firm-name of Y. Z. & Co.], made and delivered to the plaintiff their bill of exchange in writing, dated on that day, and directed the same to one M. N. [or, to certain persons, under the firm-name of M. IST. & Co.], and thereby required said [drawee] to pay to the order of this plaintiff [or, of these plaintiffs, under their firm-name of A. B. & Co.] dollars, days [or, weeks, or, months] after the date [or, sight] thereof, for value received. (k) An acceptance generally, without {I) The holder of a hill, upon protest words of restriction to a fund or con- for non-acceptance, has an immediate tingenoy, will in some cases hind the cause of action against the drawer ; acceptor absolutely (see Atkinson i). and even at common law, if demand of Manks, 1 Cow., 691 ; Maber ■». Massias, paymentand protest were deemed void, 2 W. Blaehat, 1072 ; Lent ■». Hodg- averments of them might be rejected if man, 15 Barb., 274) ; and in such cases the declaration counted properly for it is unnecessary to aver that he had non-acceptance. Mason v. Franklin, 3 'iinds. Johns., 203. 250 ABBOTTS' FOEMS. Complaint by Payee, against Drawer. / II. That the same was duly presented to {the drawee\ for ac- ceptance, but was not accepted (m) \jf a foreign 'bill, add, and was thereupon dnlj protested for non-acceptance], of all which due notice was given to the defendant \drawer\. III. That no part of the same has been paid [except the sum of, &c.j 327. On the Same / Another Form, setting out a Cojn/ of the • Bill, (n) I. That on the day of , 18 , at , the defendants [drawers], [under their firm-name of Y. Z. & Oo.J, made and delivered to the plaintiff their bill of exchange in writing, of which the following is a copy: [oopy of the hiW]. {o) II. That the same was duly presented to [the drawee] therein named for acceptance, but was not accepted [if a foreign bill, add, and was thereupon duly protested for non-acceptance], of all which due no.tice was given to the defendant [drawer]. III. That there is now due to the plaintiff thereon the sum of dollars [with dollars damages] and interest from, &c. 328. On a Bill Payable on a Day Certain, or at Sight, or at a Certain Time after Bate,— for Non-jyayment. I. That on the day of , 18 , at , the de- fendants [drawers], [under their firm-name of, &c.], made and (»i) In a complaint against the draw- upon duly protested for non-payment," er of a bank check or of a bill of ex- was held sufficient to admit evidence change, properly so called, it is neces- of demand, neglect, or refusal to pay, sary to aver either demand, and notice and notice thereof to the drawer, to the drawer of non-payment, or such Woodbury «. Sackrider, 3 Abbotts' Pr., facts, — 6. g., want of funds at bank, — as 402. excuse demand and notice. Shultz (m) The action on a bill of exchange V. Depuy, 3 Abbotts' Pr., 352. If the against the drawer may, according to drawee destroys or refuses to return the better opinion, like an action the bill he may be deemed to have ac- against an indorser, be considered as cepted it. In that case the complaint an action on an instrument for the pay- may be for non-payment. See Form ment of money only, within the mean 329, infra. ing of section 162 of the Code. In an action against the acceptor, an (o) The holder must sue on that one averment in the complaint that pay- ofthe set that was dishonored. Downes ment of the biU " was duly demanded i>. Church, 13 Pet., 205 ; Wells v. White- at maturity, and the same was there- head, 15 Wend., 537. COMPLAINTS. 251 By Payee against Drawer. delivered to the plaintiff their bill of exchange in writing, dated on that day, and directed the same to one M. N. [or, to certain persons, nnder their firm-name of, &c.J, and thereby required said [drawee] to pay to the order of this plaintiff [or, of these plaintiffs, under their firm-name of, &c.J dollars on the day of ) 18 , [or, at sight, or, days after the date thereof, or otherwise'], for value received. II. That the same was duly presented to [the drawee] for pay- ment, (j?) but was not paid [if a foreign hill, add, and was thereupon duly protested for non-payment], of all which duo notice was given to the defendant [drawer], III. That no part of the same has been paid [except the sum of, &C.J 329. On a Bill Payable after Date or Sight,— for Non-payment after Aecej>tance. I. That on the day of , 18 , at , tlie de- fendants [under their firm-name of Y. Z. & Co.] made and de- livered to the plaintiff their bill of exchange in writing, dated on that day, and directed the same to one M. N. [or, to certain Dersons, under their firm-name of M. N. & Co-], and thereby required said [drawee] to pay to the order of this plaintiff [or, of these plaintiffs, under their firm-name of A. B. & Co.] dollars, days after the date thereof [or otherwise], for value received. II. That then and there [or, on the day of , 18 , at ], the said [drawee] upon sight thereof, accepted said bill. III. That at maturity the same was duly presented to said [drawee] for payment, but was not paid [if a foreign Mil, add, and was thereupon duly protested for non-payment], of all which due notice was given to the defendant [drawer]. IV. That no part of the same has been paid [except the sum of, &C.J ip) In action against! the drawer of a Wend., 331 ; Montgomery County Bank biU payable on a day certain, or a cer- v. Albany City Bank, 8 Barb., 396 ; tain time after date, it is not necessary Philpott v. Bryant, 3 Carr. d P., 344 ; to aver presentment for acceptance to S. C, 14 Ung. Gom. L. B., 549. the drawee. Allen v. Suydam, 30 252 ABBOTTS' FORMS. Complaint by Payee of Bill, Excusing Want of Demand, &c. 330. On the Same, Non-presentment. for Aoceptance Excused, {q) the Drawer having Countermanded the Bill. I. \_State the Tnalcing and delivery of the Mil, as in paragraph I. of Form 326, or, if payable at sight, as in Form 328.] II. That on or about the day of ,18 , said bill not then having been presented for acceptance [or, for payment], the defendant countermanded the same by instructions to the said [drawee'] not to accept or pay [or, if payable at sight, not to pay] the same ; wherefore it was not presented. III. Tliat no part of the same has been paid [except the sum of, &c.] 331. On the Same, Non-presentment for Acceptance Excused because the Drawee could not be found. I. [State the maldng and delivery of the bill, as in paragraph I. of Form 326, or, if payable at sight, as in Form, 328.] II. Tliat on the day of ) 18 , due search and in- quiry was made for said drawee at [the place of address], in or- der that the same might be presented to him for acceptance, but he could not be found, and the same was not accepted [and if a foreign bill, add, and was thereupon duly protested for non-acceptance], of all which due notice was given to the de- fendant [drawer]. III. That no part of the same has been paid [except the sum of, &c.] 332, On the Same, Demand and Notice Excused by Waiver. I. [As in preceding forms!] II. That the defendant at the time said bill was transferred by him, waived as well the presentation of the same to said W. X. for payment, as notice of the iion-payment thereof, and no part thereof has been paid. i ' icj) For averment of waiver of omission to give notice, see Form 310, ante, 234. COMPLAINTS. 253 On Bills of Exchange. m. Payee against Deawee and Acckptoe. 333. On a Bill Accepted hy the Drawee. I. That on the day of , 18 , at , the de- fendants [drawers^, [under theii* firm-name of Y. Z. & Co.], made and delivered to the plaintiff their bill of exchange in writing, dated on that day, and directed the same to the defendant [ac- ceptor; or, to the defendants, acceptors, under their firm-name W. X. & Co.], and thereby required said [acceptor] to pay to the order of the plaintiff [or, of the plaintiffs, under their firm- name of A. B. & Co.] dollars, days after the date thereof [or otherwise], for value received. II. That then and there [or, on the day of ? 18 , at ], the defendant [acceptor], upon sight thereof, accepted said bill. TIT. That at maturity the same was duly presented to the de- fendant [acceptor] for payment, but was not paid [if a foreign hill, add, and was thereupon duly protested for non-payment], of all which due notice was given to the defendant [drawer], lY. That no part of the same has been paid. 334. On a Bill Accepted for Honor. I. That on the day of , 18 , at , the de- fendants [drawers], [under their firm-name of T. Z. & Co.j, made and delivered to the plaintiff their bill of exchange in writing, dated on that day, and directed the same to one M. N. [or, to certain persons, under their firm-name of M. N. & Co.], and thereby required said [drawee] to pay to tlie order of this plaintiff [or, of these plaintiffs, under their firm-name of A. B. & Co.] dollars, days after the date thereof [or other- wise], for value received. II. That then and there [or, on the day of 18 , at J, it was duly presented to said [drawee] for acceptance, but was not accepted [if a foreign hill, add, and was thereupon duly protested for non-acceptance], of all which due notice was given to the defendant [drawer], {r) if) As to wlietlier it is in all cases of to the drawer, as preliminary to an necessary to aver protest for non-accept- acceptance for honor, see 3 Ohit. PL, anoe by the drawee, and notice there 177, note o. 254: ABBOTTS' FORMS. Complaints by Indorsee of Bill of Exchange. III. That then and there [or, on the day of , 18 , at ,J the defendant [acceptor for honor], upon sight tliere- of, accepted said bill for the honor of said [drawer]. IV. That at maturity the same was duly presented for pay- ment to said [drawee], but was not paid [if a foreign hill, add, and was thereupon duly protested for non-payment], of all which due notice was given to the defendants [drawers]. Y. That thereupon the same was duly presented to the de- fendant [acceptor for honor] for payment, but was not paid [and was thereupon duly protested for non-payment], of all which due notice was given to the defendant [drawer], YI. That no part of the same has been paid. rV". By Indorske. 335. Remote Indorsee against Acceptor, (s) I. That on the day of , 18 , at , the de- fendant [or, the defendants under their firm-name of Y. Z. & Co.], accepted and delivered to the payee therein named a bill of exchange of which the following is a copy: [copi/ of the Mil and acceptance]. II. That said [payees], [under their firm-name of M. 'N. & Co.], thereafter indorsed said bill and delivered it so indorsed, and thereafter [and before maturity] the same came lawfully into the possession of these plaintiffs for value. III. That there is now due to this plaintiff thereon from the defendant the sum of dollars with [damages and] interest from, &c. 336. Against Drawer and Indorser,—for JVon-acceptanoe. I. That on the day of , 18 , at , the de- fendants [drawers], [under their firm-name of Y. Z. & Co.], made their bill of exchange in writing, dated on that day, and directed it to one M. 1^. [or, to certain persons, under the firm- name of M. !N". & Co.], and thereby required said [dr'awee] to pay to the order of the defendant [indorser, or, of one O. P.] («) This form is supported by Levy nom. Levy v. Ely, 15 Bow. Fr., 395 ; ». Ley, 6 Ahbotts' Pr., 89 ; S. C, sub Phelps v. Ferguson, 9 Abbotts'Pr., 206. COMPLAINTS. 255 By Indorsee of BiU of Exciaiige. dollars, days after the date thereof \or otherwise}, for value received. II. That the said [drawers] then and there delivered the same to the defendant [indorser, or, to said O. P., who then and there indorsed it to the defendant, indorser]. III. That then and there [or, on the day of j 18 , at j, the defendant [indorser'] indorsed the same to the plaintiff [or, indorsed the same and delivered it so indorsed, and thereafter [and before maturity] the same came lawfully into the possession of the plaintiff for value], {t) lY. That the same was duly presented to [t7ie drawee] for acceptance, but was not accepted [if a foreign hill, add, and was thereupon duly protested for non-acceptance], of all which due notice was given to the defendants. Y. That no part of the same has been paid [except the sum of, &c.] 337. Against Drawer, Indorser before Acceptance, and Acceptor, —for Non-payment. I. That on the day of , 18 , at , the de- fendant [drawer] made his [or, the defendants, drawers, under their firm-name of, &c., made their] bill of exchange in writing, dated on that day, and directed it to the defendants [acceptors, under their firm-name of, &c.J, and thereby required the de- fendants [acceptors], to pay to the order of the defendant [in- dorser, or, of one M. N.] dollars, days \or, weeks, or, months], after the date [or, sight] thereof, for value received. II. That the said [drawer] then and there delivered the same to the defendant [indorser, or, to the said M. N., who thereupon indorsed it to the defendant, indorser]. III. That then and there [or, on the day of > ^^ , at ], the defendant [indorser] indorsed the same to tliis plaintiff [or, indorsed the same and delivered it so indorsed, and thereafter [and before maturity] the same came lawfully into the possession of this plaintiff for value]. lY. That then and there [or, on the day of > 18 , if) This form of averring plaintiff's son, 9 Abbotts' Pr., 306 ; and see Green- title is supported \>y Phelps v. Fergu- bury «. Wilkins, Id., 306, note. 256 ABBOTTS' FORMS. Complaints by Indorsee of Bill. By Drawer. at J, the defendants [aoGeptors], [under their firm-name of, &C.J, upon sight thereof, accepted said bill. Y. That at maturity the same was duly presented to the de- fendant [acceptor] for payment, but was not paid \if a foreign hill, add, and was thereupon duly protested for non-payment], of all which due notice was given to the defendants \drawer and indorser]. YI. That no part of the same has been paid. 338. Apainst Drawer, Acceptor, and Indorser after Accept- ance,— for Non-payment. r. That on the day of , 18 , at , the de- fendants \dravmrs\, [under their firm-name of, &C.J, made their bill of exchange in writing, dated on that day, and directed it to the defendants {acceptor s\, [under their firm-name of, &c.J, and thereby required said defendants \_acceptors\, to pay to the order of the defendant [indorser, or, of one M. N., or, of certain persons under their firm-name of, (fee] dollars, days after the date thereof [or otherwise'] for value. II. That then and there the defendants [drawers], delivered the same to the defendant [indorser, or, to said M. 'E., who thereupon indorsed it to the defendant, indorser]. III. That then and there [or, on the day of , 18 , at J,the defendants [acceptors], [under their firm- name of, &C.J upon sight thereof, accepted said bill. lY. That then and there [or, on the day of , 18 , at J, the defendant [indorser] indorsed the same to this plaintiff [or, indorsed the same, and delivered it so indorsed, and thereafter [and before maturity] the same came lawfully into the possession of this plaintiff for value]. Y. & YI. [As in the preceding formi] Y. Drawer against Acceptor, (w) 339. On a Bill Retv/rned to, and Taken Up hy the Drawer, (■u) I. That on the day of , 18 , at , the plain- tiffs [under their firm name of, &c.J, made and delivered to the (m) TMs action may be maintained through the payee. Engman v. Ho- vrithout deducing title to the bill taling, 35 Weni., 423, and cases there COMPLAINTS. 257 By Drawer of Bill, against Acceptor. payee therein named, their bill of exchange in writing, dated on that day, and directed it to the defendants [nnder their firm- name of, &C.J, and thereby required the defendant to pay to the order of one M. N. [or, of certain persons under their firm- name of, &C.J, dollars, days after the date thereof [or oikerwise]. II. That then and there [or, on the day of , 18 , at J, the defendants [under their said firm-name], upon sight thereof, accepted said bill for value received. III. That at maturity the same was duly presented for pay- ment but was not paid. IV. That on the day of , 18 , at , the same was returned to the plaintiff for non-payment, (w) and the plaintiff, as drawer thereof, was then and there compelled to take up the same and to pay to said [payee, or, to the holder thereof], the sum of dollars, being the amount of said bill with damages [or, with costs of protest] and interest. V. That no part of the same has been repaid [except the sum of, &c.j 340. On a Bill Payable to the Drawer''s own Order, and not Negotiated. I. That on the day of , 18 , at , the plain- tiffs [nnder their firm-name of A. B. & Co.] made their bill of exchange in writing, dated on that day, and directed it to the defendants [under their firm-name of, &c.], and thereby re- quired the defendant to pay to the order of the plaintiffs dollars, days after date thereof [or oiherwise\. II. That the defendant thereupon [or, on the day of cited. If the drawer has only paid drawers had left in their hands suffl a part, so that he has not taken up cient money to pay the bill, which they the bill, he should sue, not on the biU, had then agreed to pay, is sufficient. but for money paid, &c. See Form Mittenbeyer «. Atwood, 18 Sow. Pr., 320, ante, 168. 330. (d) a complaint against the draw- (w) When the drawer sues on a biU ers of a bUl, alleging that they had re- payable to a third person, it is neces- fused to accept, and that they had had sary to state that it was dishonored, a settlement of accounts with the draw- and taken up and paid by the plaintiff ers, and that on such settlement the 3 Chit. PI., 148. Vol. I.- 17 258 ABBOTTS' FORMS. Complaints in Actions on Checks. , 18 , at j, upon sight thereof accepted • said bill, for value received, and delivered it to the plaintiff. III. That no part of the same has been paid [except the sum of, &C.J Section XI. COMPLAINTS UPON CHECKS. L Against drawee. 341. Payee against drawer p. 258 343. Indorsee, or bearer, against drawer 359 343. Omission to give notice of non-payment excused because the drawer had no funds 260 344. Non-presentment excused because of insolvency of drawee 360 II. Against dbaweb; indorsek, and drawee. 345. Indorsee, or bearer, against drawer and indorser 360 346. Against the bank, drawee, having certified 261 I. Against Drawee. 34:1. Payee against Drawer. I. That on the day of , 18 , at , the de- fendant [or, the defendants, undet their firm-name of Y. Z.. & Co.] made and delivered to the plaintiff his [their] check in writing, dated on that day, and directed the same to the Bank of M. N. \or, to certain persons, under the firm-name of, &c.], and thereby required said \_drawe&\ to pay to the plaintiff or order [or, bearer], (a) dollars, (J) for value received. II. That the same was duly presented (c) to the said \_drawee\ for payment, but was not paid ; of all which duo notice was given to the defendant {drawei^. {d) III. That no part of the same has been paid. (a) A check payable to the order of Bank, 2 Duer, 121), — is to be deemed a fictitious person, — e. g., to the order payable to bearer if negotiated by the of a firm long since dissolved (Stevens maker. See note (e), infra. V. Strang, 2 Sandf., 138), or " to the or- (&) When no time of payment is der of bills payable" (WUlets «. Phoenix mentioned, the check or note ie pay- COMPLAINTS. 259 On Checks upon Bankers. ^" 3i2. Indorsee, or Bearer, against Drawer. I. That on the day of , 18 , at , the de- fendant made his check [or, the defendants, under their firm- name of, &c., made their check] in writing, dated on that day, and directed th-e same to the Bank of M. N. [or, to certain per- sons, under their firm-name of, &c.], and thereby required^ said [drawees'] to pay to one 0. P. or order [or, bearer], dol- lars for value received. II. That the defendant then and there delivered the same to said [payee], [if payable to order, add, who indorsed the same and delivered it so indorsed], {e) and the same thereafter came lawfully to the possession of this plaintiff. III. That thereafter the same was duly presented to said [drawee] for payment, but was not paid, of all which due notice was given to the defendant. lY. That no part of the same has been paid. able immediately, and it is unnecessary that the complaint should state a time of payment. Herrick v. Bennett, 8 Johns., 374 ; PearsoU ■». Prazer, 14 Barb., 564 ; and see Thompson v. Ketcham, 8 Johnt., 189. By the statute of 1857, 838, ch. 416, § 3, it is provided that all checks, bills of exchange, or drafts, appearing on their face to have been drawn upon any banking association or individual banker, carrying on banking business under the act to authorize the business of banking, which are on their face payable on any specified day, or in any number of days after the date or sight thereof, shall be deemed due and pay- able on the day mentioned for the pay- ment of the same, without any days of grace being allowed, and it shall not be necessary to protest the same for non-acceptance. (c) As against the drawer, present- ment at any time before suit brought is suificient, unless it appear that he has been prejudiced by unreasonable delay on the part of the holder. Little V. Phoenix Bank, 3 Hill, 425, and cases there cited ; S. C, 7 Id., 859 ; Harbeck V. Craft, 4 Duer, 133. (d) In general, presentment and no- tice of non-payment are necessary to charge the drawer of a check. Harker D. Anderson, 21 Wend., 873 ; Shultz v. Depuy, 3 AKiotts' Pr., 353 ; and see Franklin «. Vanderpool, 1 Hall, 78 ; but compare Cruger «. Armstrong, 3 Johns. Cos., 5 ; Conroy v. Warren, Id., 259 ; Elting ». Brinckerhoflf, 3 Hall, 459. It is otherwise if the drawees have fail- ed, or their business has been stopped by an injunction, or if the drawer had no funds in their hands ; but in such a case the fact must be averred in excuse of the omission to demand or give no- tice of non-payment. See Forms 343 and 344, infra. («) If payable to bearer or to a fic- titious person, instead of stating that it was -payable to 0. P., &o., say, " and thereby required said [dratcee] to pay to the bearer thereof dollars, foi , value received ; and thereupon the de- fendant negotiated the same." 260 ABBOTTS' FORMS. N ^- Allegations of Excuse for not Presenting ing partner may recover without rectly upon the award, as there pro- averring the death of the other part- vided. An oral submission is good at ner, and the survivorship ; for stating common law, and an action may be the account is in the nature of a new maintained upon the award. Cope ■». promise to the survivor. Holmes ■». Gilbert, 4 Den., 347 ; Diedrick ii. Eich- De Camp, 1 Johns., 34. ley, 2 HUl, 271 ; Hays e. Hays, 23 Wend., («) The words in brackets are im- 363 ; Wells v. Lain, 15 Id., 99. So an necessary if there was no express umpire may be appointed by parol, un- promise. less the submission require the appoint- (/) It is only necessary that the sub- ment to be in writing. Elmendorf «. mission to arbitration should be in Harris, 5 Id., 516 ; but cfimpare S. C, writing where it is made under the 23 Id., 628. 264 ABBOTTS' FORMS. Complaints on Awards. and there, by an agreement in writing, a copy of which is here- to annexed, and marked " Exhibit A," agreed to submit the same to the award of M. N.] III. That- thereafter the said arbitrator, [g) having under- taken the arbitration, heard the plaintiff and the defendant, and on the day of , 18 , at , duly made and published \_and where siich notice is required ly the submission, add, and notified the said parties of] his award (A) [in wri- ting] {i) of and concerning the matter so retferred [which award bears date the day of ,18 ] ; and thereby he awarded and declared, that after due appearance before him on behalf of this plaintiff and said defendant, he found that the said defendant was justly indebted to this plaintiff in the said sum of dollars for the services aforesaid {j) [or otherwise, according to the facts']. [Or, where the award is in writing the pleader viay substitute for this paragraph the following : III. That thereafter said arbitrator, having undertaken the arbitration, duly made and published his award in writing, of which the following is a copy ; or, a copy of which is hereto annexed and marked " Ex- nibit B."] IV. That the plaintiff duly- performed all the conditions thereof on his part, (^) and [afterwards, and on or about the (g) An averment that an arbitrator plaintiff need not set fortli more than made an award means a qualified arbi- is in his favor and sufficient to support trator, and sufficiently imports that he his demand. He need not show the was duly sworn, where an oath is re- award upon both sides ; and if there quired. Browning v. Wheeler, 34 Wend., be any thing by way of condition prece- 358. dent to the payment of the money, the. (A) An allegation that an award was defendant must set it forth in pleading, made, imports that it was ready to be McKingtry «. Solomons, 2 Johns., 57 ; delivered, Munro v. ^aire, 2 Cai., 320. Diblee ». Best, 11 Id., 103. Where the award was required to be ( h) Performance of the conditions oi delivered to the parties, alleging that an award must, under the Code, be it was ready to be, and was delivered pleaded, as well as in the case of those to the plaintiff, it is bad. Pratt «. Hack- of a contract. The exception to this ett, 6 Johns., 14. general rule, which, before the Code, if) Wliere a submission is oral and prevailed in respect to pleading upon does not provide for a written award, an award, is no longer to be observed, an oral award is good at common law. Cole «. Blunt, 3 Bosw., 116. It may be Valentine®. Valentine, 3 5ar6. C%., 430. better to allege performance in the (J) It- was the rule at common law, terms of the award rather than in the that in an action upon an award the general form above given. COMPLAINTS. 265 On Awards. day of 18 , at ] gave notice of said award to the defendant, and demanded (Z) of him payment of the said sum of dollars. Y. That the defendant then and ever since has refused to pay the same ; and there is now due from the defendant to the plaintiff thereon, the sum of dollars, with interest from, &c. 350. On cm Award of an Umpire, (m) Substitute for the first pari of paragraph III. in the preced- ing form: That said M. N. & O. P. \a,rhitrators'], before they proceeded upon the said arbitration, on the day of , 18 , by writing, under their hands, appointed one Q. E. to be Where one party is directed to pay money on or before a certain day, and the other to convey and give up pos- session on or before that day, or the like, the acts are concurrent, and nei- ther can recover without performance or tender. Huy v. Brown, 13 Wend., 591. But where the things awarded to be done by the parties are independent, tender of performance or demand of payment before suit is not necessary. Nichols V. Rensselaer Mutual Ins. Co., 22 Wend., 135. (Q Notice of the award and demand need not be averred, unless required by the terms of the submission. 2 Saund., 63, a ; Eowe v. Toung, 2 Brod. & B., 233. (m) In complaining upon an award it is of consequence to attend to the dis- tinction between the powers and au- thority of a person acting with others as an arbitrator, and the powers and authority of an umpire. Where an um- pire has been appointed and has entered on the performance of his duty, the au- thority to decide is vested solely in him ; the original powers of the arbitrators cease to exist. He is not bound to meet or consult with them, though he may do so ; and the award is his act alone, and if either arbitrator joins in the award his act is superfluous, and the award is stUI that of the umpire only. UnderhiU u Van Cortlandt, 2 Johns. Gh., 339 ; Butler V. Mayor, &c., of N. T., 1 HUl, 489 ; Mayor, &c., of N. Y. v. Butler, 1 Barb., 335. But where two arbitrators unable to agree appoint, under the sub- mission, a third arbitrator, the power to make an award is vested in the three jointly. Wherever, therefore, the action is founded on an award, its true charac- ter, as the act of an umpire or of arbi- trators, must be set forth in the com- plaint, in order that a defence adapted to its true character may be set up in the answer. Lyon v. Blossom, 4 Buer, 318. In that case the complaint averred a submission to two with power in case of disagreement to appoint an umpire ; and alleged a disagreement, the ap- pointment of an umpire, and an award by a majority of the three. The sub- mission offered in evidence contained a power to appoint, not an umpire, but a third party to assist in the arbitration ; and the award was made by one of the original arbitrators with the new ap; pointee. It was held that this submis- sion and award could not be received in evidence, that there was a material variance between the evidence and tho 266 ABBOTTS' FORMS. Complaints on Awards. On Bonds. umpire in the matter so submitted ; and tlie said arbitrators, after hearing the plaintiff and defendant, and not being agreed concerning the matters submitted, the said Q. R. afterwards undertook said arbitration, and heard the plaintiff and defend- ant, and on the day of [proceed to allege the award as in preceding forni\. 351. Allegation of an Enlargement of the Time, (n) That on the day of , 18 [or, thereafter, and within the time limited for making the award], the plaintiff and defendant by agreement [in writing, of which a copy is hereto annexed, and marked " Exhibit C"], extended the time for making the award until the day of Article III. — Bonds. [In actions upon penal bonds, the judgment is in form for the penalty, and execution is to be issued from time to time only for the amounts due. (o) Hence the demand of relief must be for the penalty. If the bond is for the breach of any condition, other than for the payment of money, as well as in actions for any penal sum for the non-performance of any covenant or written agreement, the plaintiff's complaint must assign the specific breaches for which the action is brought, (p) The other class ot bonds may be pleaded in the general form given for Instruments for the Pay- ment of Money only. Ante, § .VIII., p. 209. complaint, which could not be disre- 29 Barb., 383. This rule extends tc garded without prejudice to the defend- every kind of condition, excepting one ant's rights. that the obligor will pay a certain sum (n) Where the submission provided of money at a particular time, or in that the award should be made in De- specified instalments. A bond con- cember, but on the day the parties, by ditioned that a third person shaJl pay. erasure and interlineation, extended the in a certain contingency, or on de- time to a day in January, — Seld, that mand, or an uncertain sum, is not a the award might be counted upon as bond for payment of money within the made at the time of its date, instead of statute ; and breaches must be assigned, at the time of the alteration. Tompkins Nelson v. Bostwick, 5 Sill, 37. So a V. Corwin, 9 Gow., 255. bond given on a plea of title before a (o) "Western Bank 'ii. Sherwood, 39 justice, conditioned to appear in a court Barb., 383 ; Mayor, &c., of N. Y. ■». of record, is within this rule, and spe- Lyons, 34 How. Pr., 280 ; and see Sy- cific breaches must be assigned. Patter- Tacuse City Bank «. Coville, 19 Id., 385. son v. Parker, 3 Id., 598. But it does (p) This was the rule established by not apply to a bond merely for the pay- the Revised Statutes (3 Rev. Stat., 378, ment of money by' instalments. Har- § 5). This statute is still in force under mon v. Dedrick, 3 Barb., 193 ; and see the Code. Western Bank v. Sherwood, Spaulding v. Millard, 17 Wend., 331. COMPLAINTS. 267 Mode of Pleading on Bonds. Where the doing of a single act will be a compliance with the covenant or condition, the breach is well assigned if it be in the words of the contract, or in words of the same substantial import; but where there are several things Tiecessary to the performance of it, a particular breach must be assigned, {q) Where the cause of action on the bond is regarded as entire, but the pleader assigns several breaches, they may appropriately be stated in separate para- graphs ; those after the first commencing with the words : And for a second breach ; And for a third breach, &o. Where the case is regarded as presenting several causes of action, the in- strument may be pleaded with the facts which create one cause of action ; and iu the statement of the subsequent causes of action it will be enough to refer to, without repeating, the allegations concerning the instrument.] I. Bonds fob payment op money only. 353. Common form p. 368 353. By a surviving obligee in a joint bond 368 854. On a bond for the payment of money only, pleading it accord- ing to its legal effect 268 IL On bonds other than fob the payment of money. 355. Common form 269 856. Another form, for cases where the condition is contained in an instrument which cannot conveniently be set forth . . . 269 857. On a bond for rent ; against principal and sureties 209 358. On a bond for the fidelity of a clerk, or cashier 371 359. On a bond for the faithful accounting of a subscription agent 271 III. Aebitration bonds. 860. For refusal to comply with award 273 361. For revoking the arbitrator's powers 374 IV. Bonds given vs suits. 863. On a bond of security for costs 374 863. On a bond given to obtain discharge of an attachment under the absconding debtor act 275 864. On a bond given to procure the discharge of an attachment against a vessel 278 (g) Thus, in an action on an ofScial So, to say that plaintiff has been bond, assigning as a breach that he obliged to pay to the amount of, &c., in did not well and faithfully execute, consequence of the negligence and acts &c., in the words of the bond, is not of the defendant in his office of under enough. He should not be required sheriff, is good, at least on general de- to come prepared to justify his whole murrer. Hughes v. Smith, Id., 168. oflScial conduct. People «. Brush, 6 So, declaring on a sheriffs bond, for Wend., 454 ; People v. Russell, 4 Id., 570. the non-payment of money received by But it is enough to say generally him for military fines, it is not neces- that the defendant had collected or em- sary to name who paid the money to bezzled, &c., such a sum, which he had him, or issued the warrants on which refused, &c., without setting forth the it was collected; a reference to tht» particular items, which would lead to statute makes the breach certain prolixity. Postmaster-general v. Coch- enough. People ■». Brush, 6 Wend., ran, 3 Johns,. 413 ; Hughes v. Smith, 5 454. Id., 168. . Compare, also, Section XIV., infra. 268 ABBOTTS' FORMS. Analysis of the Section. 365. On a bond given to procure a stay of proceedings, — for refor- mation of a mistake in it, and for judgment upon it as reformed 279 V. Official bonds. 36G. On an administration bond 281 367. Assignment of breacli of the bond of a county treasurer 283 368. Assignment of breach in a sheriff's bond, for neglect to levy . 284 369. The same, for neglect to sell after levy 284 370. The same, for neglect to return 285 371. Allegation of judgment for damages and costs against the sheriff. 285 I. Bonds foe Payment of Money only. 352. Common Form,. I. That on the day of , at , the defendant covenanted with the plaintiff, under his hand and seal, to pay to the plaintiff the sum of \_state the penalty]. II. That no part thereof has been paid, (r) Wherefore the plaintiff demands judgment against the de- fendant for [the penalty], 353. By a Surviving Obligee in a Joint Bond, (s) I. That on the day of , at , the defendant covenanted, with the plaintiff and one 0. D., under his hand and seal, to pay to the plaintiff and said C. D. [proceed as in other forms]. II. That on the day of , at , said C. D. died. III. [Allege hreach as in other cases.] 354. On a Bond for the Payment of Money only, Pleading it According to its Legal Effect, {t) I. That on the day of , 18 , at , the de- fendant covenanted with the plaintiff", under his hand and seal, (r) It is suggested iu Western Bank eral interest, one may sue, he must set ■ii. Sherwood (29 Barb., 383), that spe- forth the bond truly, and then, by cific breaches should be assigned iu all proper averments, show a cause of ac- cases under the Code, even on a mere tion in himself alone, clearly embraced money bond. See a form appropriate within the condition of the bond. Ehle to this view. No. 355. v. Purdy, 6 Wend., 629. («) One of two joint obligees cannot (f) This form may be preferable sue, unless he avers that the other is where the plaintiff is entitled to re- dead. Wherever, by reason of a sev- cover more than the penalty. COMPLAINTS. 269 On Bonds. to pay to the plaintiff tlie sum of [state, not the penalty, hut the actual dehi], on the day of , with interest from, &c. [or, as follows : dollars thereof on the day of , and dollars thereof on the day of with interest on each of said sums from, &c. or otherwise, ao- cording to the conditiori\. II. That no part of the same has been paid [except the sum of, &c.] Wherefore the plaintiff demands judgment against the defendant for the sum of [state the amount due']. II. On Bonds other than for the Payment of Monet. 355. Common Form. I. That the defendant, on the day of ? 18 , made .his bond or writing obligatory, sealed with his seal, of which the following is a copy : [set forth copy of bond, including condi- tion']. II. [Set forth a breach : see following forms.] in. For a further breach the plaintiff alleges, &c. 356. Another form, for Cases where the Condition is Cdntainea tn am, Instrument which Cannot Conveniently be Set Forth. I. That on the day of , at , the defendant covenanted with the plaintiff, under his hand and seal, to pay to the plaintiff the sum of [state the penalty]. II. That said obligation was upon the express condition there- under written [whereby after reciting that, &c., it was pro- vided],„that if, &c. [set forth the substance or words of the condi,- tion], the said obligation was to be void, otherwise to remain in full force. . III. [Allege breaches, as in other cases.] 367. On a Bond for Rent / against Principal and Sureties, {u) I. That the plaintiffs were, at the time next hereinafter men- tioned, possessed of certain issues and profits arising and accru- (m) Tliis is, in substance, the com- &c., of N. T. «. Mabie, 13 2f. Y. (3 plaint used in the case of the Mayor, Kern.), 151. 270 ABBOTTS' FOEMS. Complaint on Bond for Rent. ing from certain wharves in the city of New Tork, hereinafter inentioned — viz., the right to collect wharfage from such vessels as should lie against or touch at the said wharves ; and being so ■ possessed, on the day of , by an instrument in wri- ting, bearing date on that day, and one part whereof was duly executed under the common seal of the city of New Tork, and the other part whereof was duly executed under the hand and seal of the defendant [lessee], the plaintiffs demised and leased to the said [lessee], in consideration of certain rents and cove- nants therein reserved and contained, the right to levy and collect to his own use all the wharfage which should or might arise, accrue, or become due between the day of , and the day of , from the use or occupation by vessels of more than five tons burden, of any of the wharves belonging to the plaintiffs, from and including the easterly side and end of the middle pier at Coenties Slip, or Pier No. 7, to and including the westerly half of Pier No. 8, or the pier on the easterly side of Coenties Slip, together with the bulkhead between said piers, and which were known as ',' District No. 5 of Public Docks and Slips," except certain docks, slips, wharves, piers, and places therein mentioned and excepted. And the plaintiffs further thereby authorized the said [lessee] to demand and receive all lawful sums of money due for wharfage thereon. II. And the said [lessee] on his part covenanted to pay to the said [plaintiffs] the sum of dollars, in four equal quarterly payments, on the first days of August, November, February, and May next thereafter. III. That the said [lessee] on that day, in order to secure the j)ayment of the said rent, in and by the said lease agreed to be paid, duly executed, together with the defendants [sureties], under their respective hands and seals, a joint and several bond, in the penalty of dollars, conditioned for the pay- ment of the rents in said lease reserved unto the said [plai7i-, tiffs] at the times at which they should respectively fall due. IV. That the said [lessee] entered upon tlie said premises, and collected and retained for his own use and benefit and behoof, of the wharfage thereof, under and in pursuance of the said lease for the full term thereof, but has neglected and failed to pay the full amount due to the [plaint'ffs] under the said lease, but that there is still due and unpaid for rent therfeon COMPLAINTS. 271 On Bond for Servant's Fidelity. from the said [lessee], the sum of dollars {v), with interest upon the sum of ^ dollars from, &c., \;pon the sum pf, &c. V. [State the demand on princvpal, notice to surety, and de- mand on surety, where these facts are necessary.] 358. On a Bond for the Fidelity of a Cleric, or Cashier. I. That on the day of , 18 , at , the plaintiffs being then about to employ one M. N. as a clerk [or, to appoint one M. IST. as tlieir cashier], the defendants, undet their hands and seals, covenanted with the plaintiffs that if the said M. N. should not faithfully perform his duties as such clerk [or, cashier] to the plaintiffs, or should fail to account to the plaintiffs for all moneys, evidences of debt, or other prop- erty received by him for the use of the plaintiffs, the defendants would pay to the plaintiffs whatever loss they might sustain by reason thereof, not exceeding dollars [or otherwise, ac- cording to the condition / or say : That on the day of , 18 , at , the plaintiffs being then about to em- ploy one M. N. as a clerk [or, to appoint one M. N. as their cashier], the defendants executed to the plaintiffs a bond, a copy of which is annexed]. II. That between the day of > 18 , and the day of 18 , the said M. IST. as such clerk [or, cashier] received money and other property, amounting to the value of dollars, to the use of the plaintiffs, for which he has not accounted to them. 359. On a Bond for the Faithful Accounting of a Subscription Agent. I. That on the day of , 18 , at , it was mutuall}'' agreed between this plaintiff and one M. N., that the said M. N. should canvass the cities of , for subscribers to certain books then in course of publication in numbers by (®) In an action to recover, from tlie ises, vrhich the surety is entitled to surety upon a lease, the amount of have credited to him. The plaintiff is rent' due, plaintiff will not he required not hound in his complaint to furnish to reduce defendant's liahility hy set- the defendant with the particulars of ting forth the particulars of certain an offset. Giles «. Betz, 15 Aibotts' sums received by him from the prem- Pf., 885. 272 ABBOTTS' FORMS. Complaint on Clerk's Bond. the plaintiff, and had for sale by him to subscribers [or, for sub- scribers to the , a magazine or periodical then publislied by this plaintiff] ; that the said M. IN", should collect for ac- count of the plaintiff the moneys which should grow due upon the subscriptions procured by him; that the plaintiff should pay to said M. N. dollars upon each order or subscription obtained by him, the same to be payable whenever num- bers of the work subscribed for should have been paid for by the subscriber thereof; and that the said M. N. should faith- fully account to this plaintiff for all books and parts of books intrusted to him, and should faithfully pay over to the plaintiff all the money that he should from time to time collect under the authority given him by the said agreement, exceeding his commission of dollars for each order or subscription. II. That then and there [or, on the day of , 18 . at ] the defendant made and delivered to the plaintiff his bond under his hand and seal, and thereby bound himself in the penal sum of dollars to this plaintiff, the condition of which bond was, that if the said M. N. should faithfully render up, or account for, to this plaintiff, all books and parts of books and other publications and specimens, and all sums of money, evidences of debt, and things in action which should be intrusted to him by or on behalf of this plaintiff, or by or on behalf of others to the use of this plaintiff, in the course of the employment of said M. N. as a canvasser as aforesaid, up to and not exceeding the amount of dollars at any one time, then said bond should be void, otherwise it should be of full force and effect. III. That the plaintiff did thereafter intrust and deliver to said M. N. in the course of his employment under the agree- ment aforesaid, certain books and parts of books of the value of . dollars, for which he has failed to account to the plain- tiff [or, that thereafter said M. N. did collect and receive divers sums of money in . the course of his employment under the agreement aforesaid, exceeding his commissions, to wit, the amount of dollars, which sums he failed to render up, account for, or pay over to the plaintiff.] {w) (w) Where the iigrteement set forth less than a certain sum, and to ao ill the declaration was to sell for not count for the proceeds, and the decla COMPLAINTS. 2T3 On Bonds of Submission to Arbitration. IV. That on the day of , 18 , at , the said M. N. was duly requested to account to this plaintiif for said books and parts of books [or, to account for and pay over to this plaintiff such sums], but he has not done so, of which this plaintiff gave due notice to the defendant, and thereupon demanded payment from him of the said sum of dollars, according to the terms of said bond {x), but the same has not been paid, nor any part thereof. III. Akbiteation Bonds. 360. J'br Refusal to Comply with Award, (y) I. That certain differences having arisen between the plain- tiff and the defendant, in consideration thereof, and in con- sideration of a like bond executed by this plaintiff to the de- fendant, the defendant heretofore made and delivered to the plaintiff a bond of arbitration, conditioned to abide the award of JVC. N. upon said differences, of which bond a copy is hereto annexed, as a part of this complaint, and marked Exhibit A. [II. That on the day of [or, thereafter, and with- in the time limited for making the award], by agreement of plaintiff and the defendant, the time for the making of the award was extended to the day of .] III. That the said arbitrator having undertaken the arbitra- tion on the day of , duly made and published his award in writing upon the matter submitted, readj^ to be de- livered to the parties, or to such of them as should desire the same, and thereby awarded that the defendant should \]iere in- dicate hriejly the provision which the defendant has disre- garded] ; of which award a copy is hereto annexed, as a part oi this complaint, and marked Exhibit B. IV. That the plaintiff duly performed all the conditions of ration averred a refusal to account, but Bequest is a condition precedent in did not aver any sale, it was hold bad. bond to account on request. Davis v. Wolfe v. Lnyster, 1 Hall, 146. Gary, 15 Q. B., 418 ; S. C, 69 Eng. (x) As to when tbe allegations of Gom. L. JR., 416. demand on the principal, notice to the (y) This form is supported by Myers surety, and demand on the surety are ®. Dixon, 3 Sail, 456 ; McKinstry «, necessary, see p. 293, note (J). Solomons, 3 Johns., 57 ; 13 Id., 37. Vol. I.— 18 274 ABBOTTS' FORMS. Complaints on Bonds. said bond on his part [and on the day of , gave no- tice of said award to the defendant, and tendered to him, &a., apd demanded of him, &c.J V. That the defendant has not [here allege breach,, specifying the particular act or omission]. 361. For Revoking the Arhitrator^s Powers, (s) [Allege submission, as in preceding form.] III. That thereafter, and before the matters aforesaid were finally submitted to said arbitrator, the defendants by writing under their hands and seals, delivered to , revoked the powers of the arbitrators. IV. Bonds given in Suits, {a) 362. On a Bond of Secv/rity for Costs. I. That heretofore one M. N. commenced an action in this court [or, in the court] against this plaintiff, wherein such proceedings were had, as that, on the day of , the defendants above named executed under their hands and seals, and duly filed with a clerlf of said court, for the benefit of this plaintiff \or, where the bond was directed to he given under sec- tion 317, and where it is directed to be delivered to plaintiff in- stead of being fled under section 423, duly executed, pursuant (z) Where defendant revoked the ar- form prescribed thereby, and in a case bitrator's powers, before the submission within the statute, those facts consti- was actually made a rule of court, the tute a sufficient consideration to sup- plaintiff should assign the revocation as port it, though it be without seal, and a breach — not the non-performance of no further averment of consideration is the award. Frets ». P^ets, 1 Cow., 335. necessary. Slack v. Heath, 4 K JD. This form is further supported by Wil- iSmith, 95 ; S. C, 1 Abbotts' Pr., 331. liams V. Maden, 9 Wend., 240. A declaration upon a statutory se- (a) In an action on a statute security, curity, — e. g., a replevin bond, — need if the complaint, by averring that it was not aver that it was taken in pursuance sealed, imports a consideration, it is not of the statute. It is enough that the necessary that it should also show that instrument set forth is in accordance it was within the statute. Clark v. with the statute. Shaw «. Tobias, 8 iPl Thorp, 3 Bosw , 680. Where it appears 7". (3 Comst), 188. See, further, the that the instrument was given in pur- forms of Complaints on Undertakirigs suance of a statute requirement, in a and notes thereto, infra. COMPLAINTS. 275 On Attachment Bonds. to an order of said court, made the day of , 18 , and delivered to the plaintiff a bond], -whereby they bound them- selves, their heirs, executors, and administrators, in the penal sum of dollars, to this plaintiff; the condition of which bond was such, that if the said M. 'N. should pay on demand all costs that might be awarded to this plaintiff in the action afore- said, then the above obligation should be void, otherwise it should remain in full force and virtue [or otherwise, according to the condition ; or, refer to a copy annexed^. II. That such proceedings were thereafter had in said action, as that this plaintiff, on the day of , 18 , recovered judgment therein against the said M. N. for dollars, his costs and expenses of defending said action. in. That on the day of , 18 , at , this plaintiff duly demanded payment of the said judgment from the said M. N., \h) but no part thereof has been paid. 363. On a Bond Given to Obtain Discharge of an Attachment Under the AJbscondhig Debtor Act. (c) I. That before and at the several times hereinafter mentioned, the plaintiffs were partners in business, carrying on their busi- ness in the city of New York, under the name and firm of A. B. & Co. ; and M. N. and O. P., hereinafter mentioned, were also partners in business, and carried on the same in the city of Vera Cruz, in Mexico, under the name and firm of N. & P. II. That the said M. N. and O. P. being indebted to the plaintiffs as hereinafter particularly stated, the plaintiffs, {d) on the day of ? 18 , made application to the Hon. (6) Demand upon tlie principal is resident debtor, under the provisions necessary. Nelson «. Bostwick, 5 Rill, of the act relative to absconding, con- 37. But a demand upon the defendant cealed, and non-resident debtors. Id., is unnecessary. Ernst «. Bartle, 1 <7b/tn«. 3-14. It may easOy be modified to Oaa. 319. meet the case of any other attachment. (c) The form here given, which is the As to undertakings under the Code of one in substance that was employed in Procedure, see Forms, infra. Eenaid v. Hargous (3 Buer, 540 ; 13 {&) In an action on an attachment N. T. (3 K&rn), 359), is adapted to an bond, executed on the discharge of a action on a bond ^ven under 2 Uev. warrant, issued under the Absconding Stai,., 13, § 55, to procure a discharge and Non-resident Debtor Act, it is not of an attachment issued against a non- necessary to aver or prove that the at- 276 ABBOTTS' FORMS. Complaint on Attachment Bond. , one of the justices of this court, pursuant to the statute, for an attachment against the real and personal estate of the said M. N. and O. P., as non-resident debtors. III. That said application was in writing, and was duly veri- fied bj the oath of one of the plaintiffs, and stated in substance and effect that the said M. 'N. and O. P. were respectively non- residents of this State, and that they were indebted to the plaintiffs in the sum of dollars, over and above all dis- counts, arising upon a contract ; and the grounds upon which such application was made were also duly verified by the affi- davit of two disinterested witnesses, according to the statute, («) as by said application, now remaining with the said justice, will, on reference thereto, fully appear. ly. That the said justice did thereupon duly issue an attach- ment against the estate, real and personal, of the said non-resi-. dent debtors, directed to the shei-iff of , and thereby commanded him to attach and safely keep all the estate, real and personal, of the said non-resident debtors within his county (except such articles as were by law exempt from execution), with all books of account, vouchers, and jjapers relating there- to ; and did also order a notice thereof to be published, accord- ing to the statute, as, by the said attachment, and the order for publication of notice thereof, will, on reference thereto, fully appear. Y. That the sheriff of , to whom said attachment was so directed and delivered, did, in obedience thereto, attach in due form of law certain property and effects of the said non- resident debtors, within his county. YI. That thereupon the defendants, on or about the day of ^ 18 , in order to discharge the said attachment, did execute to these plaintiffs, and deliver to the said justice for the use of these plaintiffs, their bond, under their hands and seals, bearing date on the last-mentioned day, of which the following is a copy : [copy iond]. YII. That upon presenting the said bond to the said justice, with the consent of the plaintiffs' attorney indorsed thereon, the taohmg creditor ressided in this State, plaintiff. Dormday v. Kanouse, 22f.Y. The execution of the bond makes a Leg. Obs., 330. ,prima-facie case on the part of the (e) 3 Rev. Stat., 138, §g 4, 5. COMPLAINTS. 277 GiTen under Absconding Debtor Act. eaid attachment was duly discharged, and the said bond was afterwards delivered over to these plaintiffs. YIII. That on or about the day of > 18 , the plaintiffs caused to be delivered to the said M. IST. and O. P., as their factors and agents, ten bales of twilled cottons, and forty bags cocoa, belonging to the said plaintiffs, to be sold by them, and the proceeds thereof, after deducting the usual charges for commissions and expenses, accounted for and paid over to the said plaintiffs. IX. (/") These plaintiffs further state, upon information and belief, that on the day of , 18 [or, that thereafter and before the day of ,18 , but on what particular day or days they are not informed and cannot state], the said M. N. and 0. P. sold the said forty bags of cocoa to one [or, to some person or persons to these plaintiffs unknown], the net proceeds whereof, after deducting all commissions and charges thereon, amounted to the suin of dollars, which sum the said M. iS". and O. P. thereupon [or, and O. P., on tlie day of , 18 ], received. X. These plaintiffs further state, upon information and belief, that on the day of , 18 [or, that thereafter, &c., as in paragraph IX.], the said M. N". and 0. P. sold the said ten bales of twilled cottons to one [or, to some, &c., as In paragraph IX.], the net proceeds whereof, after, &c. [oontimie as in paragraph IX., to the end]. XL {g) And the plaintiffs further state, that on the last- mentioned day [or, on the day of , 18 ], they duly demanded payment of the said sums from the said M. N. and O. P., but no part of them has been paid. XII. That at the time of executing the aforesaid bond, the (/) In paragraphs IX. and X. we tlie factor's knowledge. But as against have departed from the mode of plead- the surety, it may be that although aVer- ing adopted in Renard ■». Hargous, giv- ments sufficient to charge the principal ing the particulars of the sales alleged are also sufficient to enable him to an- more fully and in detail than was there swer as to the sale, he is entitled to done. In an action directly against have furnished him in the complaint the factor, an averment that a sale waB such convenient details as the plaintiff made, though couched in much more may be able to supply, general language than that adopted (y) This paragraph was not contained above, would be sufficient, the subject- in the complaint in Renard v. Hargous. matter of the averment being within As to its necessity, see Forms 238, 339. 278 ABBOTTS' FORMS. Complaint on Attachment Bond. 6aid plaintiffs were attaching creditors of the said M. N. and 0. P., according to the statute; and that the amount abov specified was then justly due and owing by the said M. IT. and 0. P. to these plaintiffs; and that the indebtedness herein- before mentioned is the same as that which was sworn to by these plaintiffs at the time of issuing the above-mentioned at- tachment. XIII. That these plaintiffs have incurred costs and disburse- ments therein amounting to dollars, no part of which has been paid, of which defendants had notice. 364. On a Bond given to Procure the DisoJiarge of cm Attach- ment against a Vessel, {h) I. That on the day of , 18 , M. K and 0. P., who were then copartners in the trade and business of ship- builders, in the city of , under the name and tirm of, &c., and who were then, as the plaintiff is informed and believes, the owners of a certain unfinished and unnamed ship or vessel, then, and at the time of the application hereinafter mentioned, lying upon the stocks in the course of construction in the ship- yard occupied by the said N. & P., at , contracted a debt with the said plaintiff, amounting to the sum of dol- lars, for certain materials or articles fui-nished by the said plaintiff, in this State, towards the building of the said vessel. II. That afterwards, and on the day of ,18 , the said N. & P., who then, also, as the plaintiff is informed and believes, were such copartners as aforesaid, and such own- ers of the said unfinished and unnamed ship or vessel, contract- ed a certain other debt with the said plaintiff, amounting to the sum of dollars, for other materials or articles furnished by the said plaintiff, in this State, towards the building of the said ship or vessel. III. That the said materials or articles for which said debts were so contracted were certain cedar logs, furnished by the said plaintiff, to and at the request of the said N. & P., at , at the times respectively hereinbefore stated, towards the build- ing of the said vessel ; and that the amount of such debts, that (7i1 This form is supported by Phillips v. Wright, 5 Sarvdf., 342. COMPLAINTS. 279 Given under Shipping Lien Act. is to say, the sirni of dollars, together with interest there- on, was justly due to the plaintiff, at the time of the applica- tion hereinafter mentioned. IV. Tliat having a lien upon the said ship or vessel for the sum of dollars, and interest thereon, he did heretofore, and on the day of , 18 , make application to Hon. , one of the justices of this court, pursuant to the statute, that such lien might be enforced, and that a warrant might be issued to the sheriff of, &c. Y. That thereupon such warrant was issued by the said jus- tice to the said sheriff, whereby he was, among other things, commanded to attach, seize, and safely keep the said ship or vessel, her tackle, apparel, and furniture, to answer the said plaintiff's lien, and all other liens that should be establislied against her, according to law. VI. That the said sheriff, in pursuance of the said warrant, attached and seized the said vessel, and that afterwards, and on or about the daj' of , 18 , the above-named defendants applied to the said justice for, and obtained, an or- der to discharge the said warrant, and that thereupon the defendants executed and delivered, and the said justice received as a sufficient security therefor, a bond to the said plaintiff, of which the following is a copy : [oopy bond], {i) VIL That the plaintiffs' aforesaid claims were a subsisting lien on the said ship or vessel, at the time of the exhibition thereof, as hereinbefore mentioned. VIII. That no part of the same has been paid. 363. On a Bond given to Procure a Stay of Proceedings, — for Reformation of a Mistake in it, and for Judgment upon it as Reformed. ( j) I. That on the day of ,18 , the plaintiffs recov- ered a judgment against one M. N. in the Court of this {f) Since a sealed bond imports a ij) -^ complaint seeking to have a consideration, an omission to allege written contract reformed, and for judg- that the bond was delivered to the ment thereon when reformed, states but officer, or that the defendants obtained a single cause of action. Gooding v a discharge of the vessel thereupon, McAlister, 9 How. Pr., 123. does not render the complaint demur- Both legal and equitable relief, if not Table Clark v. Thorpe, 2 Bosw., 680 inconsistent, may now be sought in 280 ABBOTTS' FORMS. Complaint on Bond, seeking to Correct Mistake. State, in and for the county of , for the sum of dol- lars, in an action wherein these plaintiffs were plaintiffs and said M. N. was defendant. II. That on the day of j 18 ^ pending the pro- ceedings of the plaintiffs, supplementary to execution on said Judgment, to collect the same from said M. N., he, the said M. N., moved said court to have the judgment satisfied of record. III. That thereupon, and at the request of said M. N., the plaintiffs, by their attorneys, stipulated with him that if he -would give them security for the payment of said judgment, to wit, the bond of some third person, conditioned for the pay- ment by M. ]Sr., upon demand, if his said motion was denied, of the amount due on said judgment, they would stay such pro- ceedings to collect the judgment until the determination of the court upon such motion. TV. That in pursuance of such stipulation said M. W. there- upon caused to be drawn a bond, of which a copy is hereinafter set forth, which he represented to the plaintiffs that he intended to have executed by one 0. P., in the body thereof named as the obligor therein. V". That on the day limited by said stipulation for the deliv- ery of said bond, said M. N. represented to the plaintiffs that said 0. P. was out of town, and that access could not be had to him to obtain the execution by him of said bond, and the said M. N. thereupon offered to procure such a bond to be executed by the defendant Y. Z., instead of by said 0. P., which these plaintiffs thereupon consented to receive. YI. That on or about the day of , 18 , in con- sideration of the premises and of the stipulation of these plain- tiffs to stay proceedings as aforesaid, the defendant Y. Z., at the city of New York, executed and delivered to these plaintiffs his bond in writing, under his hand and seal, of which the follow- ing is a copy : [copy of t/w bond, with name of 0. P. in the title, hut signed iy Y. Z., the defendani\. one action. Getty v. Hudson Biver E. d. Eodgers, 11 Barb., 595 ; Cahoon ■». R. Co., 6 Mow. Pr., 269 ; Gooding v. Bank of Utica, 7 N. Y. (3 BeU.), 486 ; McAlister, 9 Id., 123 ; Spier v. Robin- and see Linden v. Hepburn, 3 Sandf., son. Id., 325; Mott b. Dunn, 10 Id., 668; S. C, 5 How. Pr., 188; 9 iV". T. 335 ; Jeroliman ii. Cohen, 1 Duer, 639 ; Leg. Ohs., 80 ; and Haire v. Baker, 5 See ». Partridge, 3 Id., 463 ; Rodgers N. T. (1 {Seld.), 357. COMPLAINTS. 281 On Official Bonds. Executors and Administrators. YII. That the striking out of the name of said O. P. from the bond as prepared for execution, and the insertion instead thereof of the name of said Y. Z., were accidentally omitted, by mistake of the parties to said bond, and that the name of said O. P. remained therein contrary to their intention. yni. That thereupon the plaintiffs stayed proceedings, as agreed, until the determination of the court upon said motion. IX. That thereafter the determination of said court was duly made, that the said motion be denied, and that the whole amount of said judgment was still due and owing to the plain- tiffs from the said M. N. X. That on the day of , 18 , payment of the amount due on said judgment was duly demanded of said M.. N. ; but no part thereof has been paid, and there is now justly due to these plaintiffs from said M. IST. thereon the sum of dollars, with interest from said 22d of November, 1855, of al_ which the defendant had due notice. {Jc) XL That thereafter, and on or about the day of , 18 , said bond was duly presented to said Y. Z. and payment ■ thereof demanded ; {1} but no part thereof has been paid, and there is now due thereon from the defendant to these plaintiff's the sum of dollars, with interest from, &c. Wherefore the plaintiffs demand judgment that said bond be reformed by striking out therefrom the name of said O. P., and inserting in the place thereof the name of the defendant Y. Z., as the obligor therein ; and that the said defendant pay to the plaintiffs the sum of dollars, with interest from, &c. V. Official Bonds. 366. On cm Administn^ation Bond, (m) I. That on the day of , the defendants, together with \th,e administrators], made and delivered to the surrogate of , their bond in writing, under their hands and seals, and thereby bound themselves to the People of this State, in the penal sum of dollars, with a condition that if said (h) Where notice is material, an aver- if) As to necessity of demand on the ment of facts " which defendants well principal, and notice to the obligor, and knew," is not sufficient. Colchester v. demand on him, see Form 379, note (_;'). Brooks, 7 Q. B., 339; S. C, 5S Ung. (m) This form is supported hy People Com. L. B., 339. v. Falconer, 3 Sm-i,af., 81. 282 ABBOTTS' FORMS. Complaint on Administration Bond. [admimstraiors] should faithfully execute the trust reposed in them, as administrators of, all and singular the goods, chattels, and credits of M. N., late of , in the State of , de- ceased, and should obey all orders of the surrogate of the coun- ty of , touching the administration of the estate commit- ted to them, then the obligation was to be void ; otherwise in full force. II. That after the execution of the bond, and on the same date, letters of administration were issued accordingly to said [administrators], by an order duly made by the surrogate of, &c. m. That said administrators [or one of them], converted to their own 'use, assets of the estate of the intestate, which came to their hands as such administrators, (n) to the amount of dollars, in violation of th'e trust so reposed in them. IV. For a further breach. That after the execution of the bond, and after the expiration of eighteen months, the said ad- ministrators were required to render an account of their pro- ceedings by an order duly made on the day of , by the surrogate of the county of ; and that thereupon they did account before such surrogate, on, &c. Y. That siich proceedings were had upon such accoiinting, that the surrogate adjudged and decreed, by an order duly made on the day of , 18 , that T. Z., one of the administrators, had in his hands, of the assets of the estate of M. N., a balance of dollars, and by the same decree the said surrogate ordered said Y. Z. to pay one-third of such bal- ance, being dollars, to F. R., the widow of the intestate,, as and for her distributive share of the estate ; but that said T. Z. has not obeyed the order, and no part of said sum has been paid, (o) VI. For a third breach the plaintiff alleges, that the surro- gate, at the same date, duly made another decree, by which he (to) In an action against the surety tained against the administrator, may on an administration bond, it is not be assigned as a breach, of the con necessary for the plaintiff to describe dition of such bond. People ». Dunlap, the property -v^hich came into the hands 13 Jolms., 437. of the administrator, and which he had (o) Notice to the representative, and converted, the creditor not being pre- a demand upon him, are not always sumed to know precisely what it was. essential. People v. Rowland, 5 Ba/rb., The non-payment of a judgment ob- 449. COMPLAINTS. 283 On County Treasurer's Bond. ordered said Y. Z. to pay to J. K, two-thirds of the balance so decreed against him, being dollars, as and for [&c.j, but that he has not obeyed said order, and no part of said sum has been paid. YII. That said F. E. and J. K. were adults, and entitled to receive the same [except , who was a minor and had a guardian, who was entitled to receive the same].(^) YIII. That thereupon, on the day of > 18 , the surrogate of the county of . , by an order then duly made, directed the bond to be prosecuted ; and according to the provisions of the statute, an action has accrued to the plain- tiffs. (2) 367. Assignment of Breach of the Bond of a County Treasurer, {r) That said treasurer, between the day of , and tlie day of , received various sums of money as such treasurer, amounting to about the sum of dollars [being a part of the tax raised in his county for the year ], and that he fraudulently, and in breach of his trust, converted and appropriated to his own use said sum. (.5) For a further breach, the plaintiff alleges that said treasurer. (p) People V. Eowland, 5 Ba/rb., 449. The remedies are cumulative. People ( q) In an action upon the bond of an v. Guild, 4 Den., 551 ; People v. Laws, executor or administrator, the plaintiff 3 Aihotts' Pr., 450. must show, as a part of his cause of (r) Where the condition of a treas- action, that the case is one of those in urer's bond was, that he " should keep which the surrogate is authorized to a s.eparate account in the Bank of A., as direct the prosecution of the bond, such treasurer, of all moneys," &c., — People «. Barnes, 12 Wend., 492 ; Peo- Held, that a breach might be assigned pie v. Corlies, 1 Sandf., 228 ; but we by negativing the words of the condi- apprehend, that in pleading it under tion, though only nominal damages the Code (§ 160) it is enough to allege could be recovered under it. Albany it as above. It is not necessary to aver Dutch Church v. Vedder, 14 Wend., notice to the sureties, nor to state who 165. was the applicant for the order for («) Where a county treasurer has prosecution. People ■». Falconer, 3 embezzled and converted money of the Sandf., 81. Execution issued under county, it is not necessary for the super- the Act of 1837, 535, ch. 460, § 35, and visors to make a request or demand be- return unsatisfied, and assignment of fore a suit on Ms bond. Supervisors of the bond, need not be alleged here. Allegany «. Van Campen, 3 Wend., 48. 284 ABBOTTS' FOEMfe. Sheriff's Bond. on the day of /accounted witli the plaintiflFs con- cerning moneys [raised in his county for defraying the public and necessary charges thereof] which had come to his hands as said treasurer, and on such accounting was found to be in arrear, and indebted to the plaintiffs in the further sum of dol- lars, and that on the day of , the plaintiffs demanded that he pay the same over to them, but he refused so to do, and no part thereof has been paid. 368. Assignment of Breach in a Sherifs Bond, for Neglect to Levy. That on the day of , in an action brought by him against one M. N., the relator recovered judgment, duly given by the Court of , against said M. N., for the sum of dollars [which judgment was on, &c., duly docketed in the office of the clerk of the county of, &c.J That on the day of , an execution in favor of the relator against the property of said M. !N. was duly issued on said judgment, and delivered to the said sheriff, of which the following is a copy : [or state its ejfect\.' That said sheriff did not execute said process, but although there was then within his county real and personal property {f) of which he might have levied, the moneys thereby directed to be levied [and of which he had notice], (m) he neglected and re- fused so to do, whereby the relator lost his said debt. That on the day of , leave was granted to the relator by the Supreme Court at , to prosecute said bond by reason of the premises. _369. The Same, for Neglect to Sell after Levy. («) [Allege judgment and execution, as in preceding form.."] That the said sheriff by virtue thereof, on the day of , levied on the goods of said M. N., of the value of (i) In an action against sureties in a property wliicli might have been' lev- constable's bond, an allegation that the ied upon, or that his body could have constable did not levy the amount, nor been found. Lawton v. Erwin, 9 Wend., take the body, is not sufficient without 333. any averment that the defendant had (m) The allegation of notice, though COMPLAINTS. 285 On Sheriff's Bond. On Building (Contracts. dollars; but he neglected to advertise and sell tlie goods so levied on by liirn as aforesaid, and no part of the moneys directed to be collected on the relator's said execution has been received by the relator. 370. The Same, for Neglect to Return. \Allege judgment and execution, as in Form 368, continuing ;] ■who by virtue thereof, on the day of , levied on the goods of said M. N., of the value of dollars ; bur, although more than sixty days elapsed after its delivery to him and be- fore this action, wholly neglected and failed to make return of said execution, and no part of the moneys directed to be col- lected thereby has been received by the relator. 371. Allegation of Judgment for Damages and Costs against the Sheriff. That thereafter, and on and about the day of , in an action brought by the plaintiff in the Court, he re- covered against a judgment duly given against the said sher- iff for the sum of dollars, for the damages which the relator had sustained by the neglect of the sheriff" to execute \or, return] said process, and dollars costs of his said ac- tion, and no part thereof has been paid to the relator. Article IV. — Building Contracts. 372. On a Special Contract, {w) modified hy Parol, with Claim for Extra Work. First. For a first cause of action. I. That on the day of , 18 , at , the de- fendants, under their hands and seals, made a contract in writing usual, seems unnecessary. Tomlinson («r) In setting forth the contract D. Rowe.SKZ & D. Stipp., 410. or its modifications, an averment may («) This form is supported by People be made sufficiently certain by in- V. Ten Eyck, 13 Wend., 448. It is ap- troducing and referring to diagrams propriate where the writ was delivered showing form and dimensions, &c. to a deputy, as well as where it wag Booker «. Bay, 17 Ind. {Harrison), delivered to the sheriff. 533. 286 ABBOTTS' FORMS. Alleging Performance. with the plaintiff, of which the following is a copy : [copy contracf]. n. That thereafter, and before the day of j 18 , the plaintiff duly performed all the conditions thereof on his part, (a?) except that at the request of the defendants he covered (x) After a contract is modified, the declaration must not be upon the origi- nal contract alone. Freeman ». Adams, 9 Johns., 115 ; Baldwin ■». Munn, 2 Wend., 399 ; Langworthy ». Smith, Id., 587 ; PhilHps b. Rose, 8 Jolim., 393. But a mere parol extension is not an altera- tion which is necessarily material to the cause of action. Crane d. Maynard, 13 Wmid., 408. If a new contract was substituted, the original should not be pleaded. Cheshrough «. N. Y. & Erie R. R. Co., 36 Barb., 9. In the case of a modified contract, we conceive that the plaintiff may plead in either of two ways : first, he may set forth the contract, not in ham verba, as originally written, but according to legal effect as modified, and then aver that he " has duly performed all the conditions thereof on his part ;" or second, he may set forth a copy of the contract as written, and then state that he has duly performed, &c., all the con- ditions thereof on his part, except that in certain points it was subsequently modified, and that in those points he fulfilled it according to the modifica- tions. But it is not sufficient to allege that the plaintiff has fulfilled all the conditions of the contract in every re- spect, except wherein the same were afterwards waived and altered by the direction, consent, or negligence and fault of the defendant (but without stating what the modifications were), and that the plaintiff had performed the contract as modified. Smith «. Brown, 17 Bari., 481. It is held, that where the pleader does not adopt the method of averring performance au- thorized by section 163, he will be held to the. strictness required by the old rules of pleading performance of con- ditions. Hatch V. Peet, 23 Id., 575. It seems to be a fair construction of this section to consider the pleader entitled to aver in this way performance of aU the conditions performance of which he ■wishes to aver, and to state as excep- tions those conditions performance of which he does not wish to aver, to- gether with his excuse for non-perform- ance of them. Such is the form given above, but the practitioner will not fol low it without observing that it may be objected to it that in one sense it does not literally comply with the re- quirements of section 163, in that it does not aver performance of all the conditions. The objection does not commend itself to our view, but we do not find that it has been passed upon. For the old rules for averring per- formance of conditions precedent, see 1 Chit. PL, 383, ed. 1828 ; Hatch v. Peet,> 23 Barb., 575, In an action on a contract to pay for work, if done to the satisfaction of de- fendant, it is not necessary to aver that it was done to his satisfaction, if it is shown to be according to the contract ; but if the contract requires it to be done to the satisfaction of third persons, the plaintiff must aver that it was done to their satisfaction. Butler v. Tucker, 34 Wend., 447. Under a building con- tract which provides for payment when the architect should furnish a certificate " that the work was fully and complete ly finished according to the specifica- tions," the giving of a certificate to that effect must be averred and proven. Smith V. Briggs, 3 Ben., 73. Where the money was to be paid upon a cer tificate by an officer that the work had COMPLAINTS. 2S7 On Building Contract. the roof of the building in the above contract mentioned with elate instead of shingles, for which the defendant promised to pay a reasonable sum (y) in addition to the price named in said contract ; and that at the like request he omitted to put blinds upon the rear of the building, on the agreement with the defend- ants that a reasonable deduction should be 'made from the price named in said contract for such omission ; and that by the con- sent of the defendant the time for completing said work was extended for one month after the day named in said contract, to wit, to the day of ,18 , on which day the whole of said work was completed by the plaintiff. III. That the sum of dollars is a reasonable payment to be made in addition to the price named in said contract, for covering said roof with slate instead of shingles. IV. That the sum of dollars is a reasonable deduction to be made from the price named in said contract for the omis- sion to put blinds upon said building. y. That on the day of , 18 , at , payment of the sum of dollars, being the balance due on said con- tract after making such allowance and such deduction, was duly demanded of the defendants by the plaintiff, but no part "thereof has been paid (2) [except the sum of, &c.J Second. And for a second cause of action, {a) been performed, a petition alleging that {z) The complaint should aver a he had made such certiiicate, need not breach, as this is not " an instrument aver also that the work had been per- for the payment of money only," and formed. Towsley ■». Olds, 6 Glarke cannot be pleaded in the form pre- (Icnca), 536. Averring that the defend- scribed in the latter clause of section ants demanded possession, which the 163. The averment of a demand may plaintiff delivered up to them, is not a be omitted wherever no demand is suflBdent averment of acceptance on necessary as the foundation of the the part of the plaintiff. Smith v. breach, except where it is desired to Brown, 17 Barb., 431. prove a demand, to charge the defend- Where the plaintiff does not rely on ant with interest. performance of a condition precedent, (a) Whether extra work is to be stated but on facts excusiiig non-performance, as a separate cause of action or not, he should aver the excuse, stating the must depend upon the circumstances of particular circumstances which consti- the case. If it was done as a conse- tute it. quence of a modification of the contract, (y) If the promise was to pay a cer- it is to be treated as done under the tain sum or at a certain rate, state the contract, and forming one cause of ac- sum here, and omit paragraph III., and tion with other work done under the so of the next averment. contract. If it was done in addition to, 288 ABBOTTS' FORMS. Complaints for Extra Work. On Charter-parties. I. That between the day of ? 18 , and tlie day of , 18 , at , he rendered further services to the defendants at their request in [here state extra work done, and materials furnished therefor'], for which the defendants promised to pay (5) [so much as they should be reasonably worth, II. That the same are reasonably worth] dollars, which sum became due therefor on the day of j 18 , but no part thereof has been paid. Article Y. — Charter-parties, (c) 373. Sliip owner against cliarterer ; for freight p. 288 374. The same, a shorter form 389 375. The same, against assignee of cargo 289 376. For not loading 289 877. For demurrage 290 378. Charterer against owner, for abandoning the voyage 290 373. Shij>-owner against Charterer, for Freight, (d) I. That at , on or about , the plaintiff and de- fendant agreed by charter-party that the plaintiff's ship called should, with all convenient speed, sail to , and that the defendant should there load her with a full cargo of , or other lawful merchandise, which she should carry to , and there deliver, on payment by the defendant to the plaintiff of freight at dollars per ton, * one-half of such freight, to be paid in cash on unloading and right delivery of the cargo ; and the remainder by approved bills on , at months, or in cash less per cent, discount, at the defendant's option. II. That afterwards the said ship accordingly sailed to , but independently of the written con- (5) If the sum was agreed on, omit tract, it is more properly to be treated the words in brackets, as a second cause of action, based upon (c) As to allegations in a complaint an independent verbal contract. "Where by owners of a vessel, for the breach of the extra work is matter of account, it a clause in the charter-party binding "rill be better to use Form 269 as a the hirers to keep her in repair, see statement of the cause of action. As Coster v. N. Y. & Erie R. R. Co., 3 to the necessary allegations where the AVbotts' Pr., 333 ; S. C, 6 Duer, 43. contract forbids extra work, see p. 206, (d) This form is from Bvilen tfi L. note iq). F., 79 ; Isberg v. Bowden, 8 Mch., 853, COMPLAINTS. 28S> On Charter-parties ; — Against Charterer. aforesaid, arid was there loaded hj the defendant with a fnll cargo of lawful merchandise, and the plaintiff carried the said cargo in said ship to aforesaid, and there delivered the same to the defendant. m. That said freight amounted in the whole to the sum of dollars, and the defendant paid to the plaintiff one-half of said freight in cash, and all conditions were fulfilled, ,and all things happened, and all times elapsed which were necessary to entitle the plaintiff to maintain this action ; yet that f the defendant did not pay to the plaintiff the remainder of said freight, either by such approved bills as aforesaid, or in cash, less discount as aforesaid. 374. The Same, a Shorter Form. I. \As in preceding forms.] II. That the plaintiff duly performed all the conditions on his part, {e) but that no part of said freight has been paid [except the sum of, &c.j ' 3X5. The Same, against Assignee of Cargo. I. That at , on or about , the plaintiff and one M. N. agreed by charter-party [continue as in paragraph I. of Form 373, substituting the charterer's name for the word '■'■de- fendant^'']. n. That thereafter the said M. N^. assigned the cargo [w, the charter-party and cargo] to the defendant, who thereupon be- came the owner thereof and entitled to receive the same. ni. [Continue as in Form 373, paragraphs II. and III. 376. For Not Loading, if) I. That on , at , the plaintiff and defendant agreed by charter-party that the defendant should deliver to the plain- tiff's ship , at , on the day of , 18 , tons of [merchandise], which she should carry to , and there deliver, on payment of dollars freight ; and that the defendant should be allowed days for loading, and («) Code of Pro., § 162. (/) This form is from Bullen & L. F., 80. Vol,. I. — 19 290 ABBOTTS' FORMS. Complaints on Charter-parties. days for discharging, and days for demurrage, if required, at dollars per day. 11. That the plaintiif duly performed all the conditions on his part, but the defendant made default in loading the agreed cargo, and failed to provide it, to the plaintiff's damage dollars. 377. For Demv/rrage. (g) I. [As m preceding form.] II. That the plaintiff duly performed all the conditions on his part. III. That the defendant kept the said ship on demurrage days over and above the periods so agreed upon for load- ing and discharging as aforesaid, but has not paid the same ; and that the defendant also detained the ship days beyond the periods so agreed on for loading, discharging, and demur- rage as aforesaid, whereby the plaintiff during all that time was deprived of the use of the ship, and incurred dollars expense in keeping the same and maintaining the crew thereof. 378. Charterer against Owner, for Abandonvng the Yoyage. I. That on or about , at , the plaintiff and de- fendant agreed by charter-party that the defendant's ship called , then at , should, with all convenient spfeed, hav- ing liberty to take an outward cargo for owner's benefit, sail to , or so near there as she could safely get, and there load from the plaintiff [or, the factors of the plaintiff] a full cargo of , or other lawful merchandise, which he should carry to , and there deliver, on payment of freight [cer- tain perils and casualties in the said charter-party mentioned only excepted. n. That the plaintiff duly performed all the conditions on his part. III. That said ship was not prevented by any of said perils or casualties from completing said outward voyage ;] (A) but that ijg) This form is from BuUen &L.F., exceptions in the charter-party. Wheel. 79. er «. Bavidge, 9 Mceli., 668 ; S. C, 35 Qi) It is not essential to negative the Eng. L. & Eq. S., 541. "■ COMPLAINTS. 29] Against Sureties for Rent. she did not with all convenient speed sail to , or so near thereto as she could safely get ; and the defendant caused the said ship to deviate from her said voyage and abandon the same, to the plaintiff's damage dollars. Article VI. — Guaranties, {i) 379. Against sureties for payment of rent p. 291 380. Against principal and sureties, in contract for work and services 393 381. On an agreement to be answerable for the price of goods sold to a tbird person . . , 393 383. On a guaranty of a precedent debt '. 394 383. Against the guarantor of a mortgage, to recover deficiency after fore- closure 395 379. Against Sureties for Payment of Rent. I. That on or about the day of , 18 , one M. IST., by agreement in writing with this plaintiff, hired of the plain- tiff \yery hriefly designate the premises, e. g., thus, the build- ing No. 100 Broadway, in the city of New York], at the yearly rent of dollars, payable [quarterly] on the days of, &c. II. That the defendant, in consideration of the premises and of one dollar to him paid, and as security for the punctual pay- ment of said rent, then and there subscribed and delivered to the plaintiff' an agreement in writing, of which the following is a copy: [copy of guaranty ; or say, an agreement in writing, and thereby agreed that if any default should be made therein, he would pay to the plaintiff such sum or sums of money as should be sufficient to make up such deficiency and fully sat- isfy the conditions of said agreement, without requiring any notice of non-payment, or proof of demand made]. III. That said M. N. has made default in the payment of the sum of dollars, which was due for said rent on, &c. IV. That before the commencement of this action [and on the day of , 18 ], the plaintiff [duly demanded ot said M. N. payment thereof, and gave to the defendant due notice and proof of said demand and non-payment, and then (j) For complaints in actions by pal moneys paid to Ms use, see, ante guarantor, to recover from his princi- 170-173, &c 292 ABBOTTS' POEMS. Actions upon Contracts for Payinent of Money. and there] duly demanded payment from the defendant of said sura ; but no part thereof has been paid. (_;') {§) In the case of an absolute guar- anty, — i. e., an undertaking that the debtor shall pay within a given time, and if not, that the defendant 'wiU him- self pay it, — demand on the principal and notice to the guarantor is not necessary. Allen i). Eightmere, 30 Johns., 365 ; Mann «. Eckford, 15 Wend:, 502 ; Kemble v. Wallis, 10 Id., 374; Clark v. Burdett, 2 Sail, 197; Eushmore v. Miller, 4 Bdw., 84 ; Van Eensselaer v. MiUer, Sill & D. Supp., 237; McKensie v. Farrell, 4 Bosw., 198 ; but compare Mechanics' Fire Ins. Co. «. Ogden, 1 Wend., 137. Where one guaranties the act of an- other, though on condition, his liability is commensurate with that of his prin- cipal, and he is no more entitled to no- tice of the default than the latter, un- less the act is beyond his inquiry. Douglass V. Howland, 24 Wend., 35. On a general guaranty that the debt- or will pay, demand upon the debtor is not necessary to fix the liability of the surety, unless the surety has requested the creditor to pursue him, or unless the creditor's delay has been the cause of injury to the sjirety. Clark v. Bur- dett, 2 Sail, 197 ; Union Bank v. Cos- ter, 3 Jf. r. (3 GomsL), 203. Where one guaranties to make sat- isfaction, if it cannot be obtained in a reasonable time from his principal, a demand on the principal is not neces- sary, if it be shown that it would have been useless because he was insolvent. Morris v. Wadsworth, 11 Wend., 100. See, also, Cooke v. Nathan, 16 Ba/rb. 342. Eiigaging that if the holder of a note should not be able to collect it from the maker in a due course of law, the guarantor would consider himself responsible without requiring notice of Don-payment. is a waiver of demand of the maker. The agreement only re- quires the plaintiff to enforce the note by coUeotion by due course of law. Backus V. Shipherd, 11 Wend.., 639. To show due diligence in suing in another State, on a contract, the laws of such State regulating the contract must be averred, unless the pleader can rely on the common-law rules. MendenhaU v. Gately, 18 Ind. (Kerr), 149. If one guaranties a debt to be col- lected by himself, the complaint need not show demand on the principal debt- or: otherwise in a complaint against one who merely guaranties a debt which the creditor is to collect. Milli- ken V. Byerly, 6 Sow. Br., 314. To maintain an action upon a guar- anty that a judgment is collectible, proceeding for the coUection in the due course of law is a condition precedent, and its performance or excuse must be alleged. Mains v. Haight, liBarb., 76. If the guaranty is to pay if the prin- cipal do not pay on demand, a demand on the principal must be averred and proved. Douglass v. Eathbone, 5 Sill, 143 ; Bank of N. T. i>. Livingston, 3 Johns. Gas., 409 ; Nelson v. Bostwick, 5 Sill, 37. And it ia only necessary to show a suit against the principal where the terms of the guaranty necessarily imply that the liability of the guaran-. tor is dependent upon that. Morris v. Wadsworth, 17 Wend., 108 ; affirming S. C, 11 Id., 100 ; Backus v. Shipherd, Id., 629 ; but see Cooke v. Nathan, 16 Ba/rb., 342. Where the guaranty is to pay the debt of P. on request, if he does not pay, a special request of the defend- ant must be averred and proved. Bush 11. Stevens, 34 Wend., 256; Nelson v. Bostwick, 5 Sill, 37 ; Douglass i>. Bath- bone, Id., 143. COMPLAINTS. 293 Against Sureties. ySO. Against Principal and Sureties in Contract for Work and Services. Qc) I. That heretofore certain articles of agreement were made and entered into between the plaintiff, of the first part, and the said defendant W. of the second part, under their respective hands and seals, and bearing date the day of > 18 , of which a copy is hereto annexed as a part of this complaint, and marked Exhibit A. II. That on the day of , 18 , simultaneously with said agreement, and in consideration thereof, the said de- fendants X., Y., and Z. executed an agreement in writing, un- der their respective hands and seals, written at the foot of said agreement, of which a copy is hereto annexed as a part of this complaint, and marked Exhibit B. III. That the plaintiff afterwards duly performed all the con- ditions of the said contracts on his part, and that the same were fully completed on the day of , 18 , and that on that day he was entitled to have and receive from the said de- fendant "W"., and the said defendants X., Y., and Z., upon the said contract, for the said work, a large sum of. money, viz., the sum of dollars. lY. That the said defendants have wholly failed to perform the said contracts on their parts, and have wholly neglected and refused to pay the said sum of dollars, (Z) and are now indebted to the plaintiff, upon the said contract, in the sum aforesaid, with interest from, &c. (A) This form is from Va7i Santv. (I) In an action upon a guaranty by Prec, 430. In tliia State it is held that the defendant that a third person would the principal and sureties who engage fulfil an executory agreement for the by different instruments, although purchase of land, an averment that the written upon the same paper, should principal "failed to fulfil his obliga- not be joined as parties in one action, tions by virtue of said instrument," De Bidder «. Schermerhorn, 10 Barb., is not suflBcient ; nor is an averment 638 ; Alien v. Fosgate, 11 How. Pr., that plaintiff had recovered judgment 218 ; overruling Enos ■». Thomas, 4 Id., against the principal " on account of 48. The contrary, however, is held in his failure to fulfil his obligations." Iowa, under a similar statute, Marvin The facts as they occurred, and not the v. Adamson, 11 Iowa, 371. They may, legal conclusions which are sought to however, be joined where they engage be drawn from them, ought to be by one instrument. Carman «. Plass, pleaded. Van Schaick v. W.. -". ^IB 23 JS: T., 386. Ba/rJ}., 89. COi ABBOTTS' FORMS. Actions upon Contracts for Payment of Money. 381. On cm Agreement to be Answerable for the Price of Ooods Sold to a Third Person. I. That on the day of , 18 , at , in con- sideration that the plaintiff, at the request of the defendant, would sell to one M. N., on a credit of months, such goods as said M. N. should desire to buy of this plaintiff [or other consideration'], (m) the defendant promised to be answerable to the plaintiff for the payment by said M. N. of the price of goods so sold on credit [if the amount of the guaranty was lim- ited, add, to an amount not exceeding a total credit of dollars at any one time, or otherwise as the limit m,ay have been\. (n) II. That this plaintiff afterwards, and on the faith of said guaranty, sold and delivered ip) to said M. N. [designate briefly the goods sold], for the sura of dollars, upon a credit of months, which sum became due therefor from said M. IST. to this plaintiff on, &c. III. That payment of the same was thereafter duly demanded from said M. N., but the same was not paid ; of all which due notice was given to the defendant. lY. That on the day of > 18 , at , pay- ment of the same was duly demanded by the plaintiff from the defendant, but no part thereof has been paid [except the sura of, &c.] {p) (to) a consideration sliouldbe stated this is not necessary, see p. 309, ante, in every action on a promise. Bailey note (a). 10. Freeman, 4 Johns., 280. In an ac- (o) In an action on a. surety's abso tion on a sealed undertaking to answer lute promise to pay, if the principal for the debt of another, the seal im- does not pay in a certain time after ports a consideration, and no other delivery to the latter, tender and re- need bo alleged in pleading. Bush v. fiisal on the part of the principal, be- Stevens, 34 Wend., 356. ing equivalent to a delivery, may be (n) Where the promise was coUat- averred specially in lieu of a delivery ; eral, and not an original one, so as to and this notwithstanding he subse- be within the Statute of Frauds, it may quently accepted a delivery. Kemble be added, " and that a memorandum of v. Wallis, 10 Wend., 374. said agreement was thereupon made in {p) Or, instead of the last two allega- writing expressing the consideration tions, say : III. That the plaintiff has thereof, and was subscribed by the de- duly performed all the conditions there- fendant, of which the following is a of on his part, but no part of said sum copy :" [copy of themem,orandwm\. But has ly^en paid. COMPLAINTS. 295 Against Guarantors. 382. On *L Guaranty of a Precedent Debt. I. That on the day of , 18 , at , one M. N., being then indebted to this plaintiff in the sum of dollars, which sum was then [or, on the day of , 18 , became] due and payable to the plaintiff, the defendan made and subscribed a memorandum in writing, of which the following is a copy : \cojpy of the gxiaranty'] — and delivered the same to the plaintiff [or, made and subscribed a memorandum in writing, expressing the consideration thereof; or, under seal, and thereby promised to the plaintiff to answer to him for said debt]. II. That the plaintiff duly performed all the conditions there- of on his part, and there is now due to him thereon from the defendant the suni of dollars, with interest from, &e. {q) 383. Against Guarantor of Mortgage, to Recover Deficiency after Foreclosure, if) I. That on or about the day of , IS , the de- fendants entered into an agreement in writing with the plain- tiff, under their hands and seals, of that date, in the words and figures following : \copy of agreement\ II. That the principal sum secured by the bond and mort- gage referred to in the said agreement, became due and pay- able on, &c., and that on or about, &c., the plaintiff com- menced an action in the Supreme Court for tiie county of for the foreclosure of said mortgage, the principal sum thereof, with interest, not having been paid ; and such proceedings were thereupon had, that on the day of , 18 , a de- cree or judgment-order in said action was made by the said court, for the foreclosure of the said mortgage and sale of the premises ; and that if the proceeds of such sale should be in- sufficient to pay the amount reported due to the plaintiff, with interest and costs, the amount of such deficiency should be (g) If the guaranty is not set forth, smith «. Brown (35 Barb., 484), but the but only its effect, allege " that no recovery is limited by the sum actually part thereof has been paid." paid. (r) This form is sustained by Gold- 296 ABBOTTS' FORMS. Actions upon Contracts for Payment of Money. specified in the report of sale therein, and "W., one of the de- fendants therein, should pay the same to the plaintiff. III. That pursuant to said decree or judgment-order, the premises were duly sold on, &c., by tlie sheriff of, &c., for the price or sum of, &c. [and that the plaintiff became the purchaser thereof]. lY. That, upon said sale,, there occurred a deficiency of, &c., as appears by the sheriff's report of said sale, duly filed in the office of the clerk of, &c., and that thereupon, to wit, on the day of , 18 , a judgment was rendered in said court against W. in favor of the plaintiff, for the said sum of, &c., with interest from ,18 ', of which no part has ever been paid. V. That before the commencement of this action, he de- manded of the defendants payment of the amount of such de- ficiency, and at the same time tendered to them an assignment of said judgment against W., duly executed by the plaintiff, but that the defendants refused to pay the same, and have ever since neglected and refused to pay the same, although the plain- tiff has always been, and still is, ready and willing to deliver to said defendants an assignment of said judgment upon being paid the amount due thereon. Article VII. — Insurance. I. FlKB POLICIES. 384. By the insured p. 297 385. The same, where the insurance was a renewal 298 386. The same, where the plaintiff purchased the property after the insurance 298 387. The same, correcting an alleged mistake 299 38^. By the assignee of the insured, on an agreement to insure, policy never having been delivered 300 n. Life policies. 389. By executor 302 390. By wife, partner, or creditor, insured 303 391. By the assignee ia trust for the wife of the insured 304 in. Majrlnb policies. 392. On a valued policy on ship or cargo 305 893. The same, on an open policy 307 394. Upon freight ' 308 395. Averment of loss by collision 308 396. Averment of waiver of a condition 308 397. For a partial loss and contribution to general average 309 COMPLAINTS. 297 On Insurance Policies. I. FiEE Policies. 384. By the Insured, (s) I. That the defendants are a corporation duly created by and under the laws of this State [or, the State of, &c.J, organized pursuant to an act of the Legislature [of said State] entitled [title of the acf] passed [date of passage\ and the acts amending the same. II. That on the day of , 1 8 , at , in con- sideration of the payment by the plaintiff to the defendants of the premium of dollars, the defendants by their agents duly authorized thereto, made their policy of insurance in writ- ing, a copy of which is annexed as a part of this complaint, (<) and marked Exhibit A., and thereby insured the plaintiff (m) against loss or damage by fire to the amount of dollars upon his [dwelling-house and his furniture therein] , in tlie village of M. III. That at the time of making said insurance [or, at the time of the commencement of the risk], and from then until the fire hereinafter mentioned, the plaintiff had an interest (-y) in the property insured, as the owner [or, mortgagee, or otherwise\ thereof, to an amount exceeding the amount of said insurance [or, exceeding the sum of. dollars]. IV. That on the day of , 18 , said dwelling- house and furniture were totally destroyed {^) [or, damaged, and in part destroyed] by fire, which did not happen by [the eauses excepted in thejoolicy]. (v) (s) This form is approved in Eodi v. has been paid, or must join the mort- Rutgers Fire Ins. Co., 6 Bosw., 23. gagee as a party. Ermis «. Harmony (f) Formerly it was customary to set Fire Ins. Co., 3 Bosw., 516. out at length in the declaration, the {v) As to the necessity of averring policy and the memorandum of con,- interest and negativing the exceptions, ditions annexed. The more convenient see Form 392, notes (i), {j), infra. way of pleading it is to annex a copy (w) Averring that the plaintiff", within of the poUcy and memorandum as an the term of the insurance, " did sustain exhibit, and to refer to it in the com- loss to the amount of, &c., by reason of plaint. Fairbanks D.Bloomfield, 2 2)M(!r, a fire taking place in the cellar of the 349. • said premises above-mentioned," is not (m) In an action by the mortgagor on sufflcien*. It should be stated that the a policy of insurance issued to him, but property insurecl was injured by fire, in terms payable to the mortgagee, the Rodi v. Rutgers Fire Ins. Co., 6 Bosw., complaint must aver that the mortgage 23 298 ABBOTTS' FORMS. Actions on Contracts for the Payment of Money — Insurance. Y. That the plaintiff duly fulfilled all the conditions of said insurance on his part [and more than sixty days, or, as other- wise required- iy the policy, before the commencement of this action, to wit, on the day of , 18 , at , gave to the defendants due notice and proof of the fire and loss afore- said, and duly demanded payment of the said sum of, stating the amount of the loss if less than the amount insured; hut if greater, then the amount insured], {x) YI. That no part of the same has been paid, and the said sum is now due thereon from the defendants to the plaintiff. 385. The Same, where the Insurance was a Renewal. \As in the preceding form, inserting after paragraph II. the following ;] III. That on the day of , 18 , at , the de- fendants by their agents duly authorized thereto, in considera- tion of dollars to them paid by this plaintiff, executed and delivered to this plaintiff their certificate of renewal of said policy, of which the following is a copy: \oopy of the certifi- cate], [or, ■ a copy of which is annexed as a part of this com- plaint, and marked Exhibit B.], and thereby renewed said in- surance for the term of one year from said day of, &c. 386. The Same, where the Plaintiff Purchased the Property after the^Insurance. [As in Form 384, siobstituting, in the averment ofthepolicy, the name of the original insurer in place of the words " the plain- tifff and the following instead of paragraph III.] III. That at the time of making said insurance \or, at the time of the commencement of the risk], and from then until the assignment hereinafter mentioned, said [original insured] had an interest in the property insured as the owner [or, mortgagee, or otherwise] thereof, to an amount exceeding the amount of said insurance [or, exceeding the sum of dollars]. (sr) The general averment in the first under section 162 of the C!ode cf Pro- two lines of this paragraph is sufficient cedure. COMPLAINTS. 299 On Fire Policy. lY. That on the day of , 18 , with the consent of the defendants duly given in writing on said policy by their said agents, the said [original insured'] dnly sold, assigned, and conveyed to the plaintiff his interest in the said [property in- sured], and in the policy of insurance [continue as in Form 384, 2>aragrajphs IV., Y., and YI.] 387. The Same, Correcting an Alleged Mistake, {y) I. That he was the owner of, &c., in, &c., at the time of its destruction by fire, as hereafter mentioned. II. That on the day of , 18 , at , in con- sideration-of dollars to them paid, the defendants executed to tlie plaintiff a policy of insurance on the said property, a copy of whicli is hereto annexed as a part of this complaint. III. That on the day of j 18 , the said property was totally destroyed by fire. lY. That the plaintiff's loss thereby amounted to more upon each part of the property separately insured, than tiie amount of sncb separate insurance. Y. That on the day of > 18 , he furnished the defendant with proof of his said loss and interest, and otlier wise duly performed all the conditions of the said policy on his part. YI. That no part of the said loss has been paid. YII. That the survey i-eferred to in the said policy, and made a part of the same, contains, among others, the following ques- tions and answers : [cojjy]. YIII. That the said questions and answers wei-e not meant or understood, by either of the parties, to be a warranty. IX. That the plaintiff, by his answers aforesaid, did not mean, nor did the defendant understand him to represent, that there was, &c. ; but the defendant then knew that no, &c. ; and if the said questions and answers do in law convey such an idea, it is through mistake only. iy) This form is from those reported cases, see Lamoreaiis ■». Atlantic Mu- by the commissioners of the Code. As tual Ins. Co., 3 Duer, 680. to the proper demand of relief in such 300 ABBOTTS' FOEMS. Actions on Contract for Payment of Money — Insurance. 388. By tlie Assignee of the Insured, on an Agreement to Insure, Policy never homing heen Delivered, (s) I. [Incorporation of defendants may le stated, as in Form 384.J II. That on and before the day of > 18 , the AVinstead Manufacturing Company, a corporation established at, &c., by their agent applied to M. N., the duly authorized agent of the defendants, for insurance against loss or damage by fire upon a certain stock of merchandise, the property of said Winsted Manufacturing Company, consisting of scythes contained in a building of the said Winsted Manufacturing Company, occupied for storing, blacking, bluing, and packing scythes, in said Winsted. And the defendants, by their said agent, on said day agreed to become an insurer to said company on the said stock for three months from the said day, for dollars at a premium of , and that the said defendants would execute and deliver to the said Winsted Manufacturing Company a policy of insurance in the usual form of policies issued by them, the said defendants, for the sum of dol- lars, for the term of three months from the said day. III. That the said Winsted Manufacturing Company then and there paid to the defendant said premium, to wit, dollars. lY. That it was then and there agreed between the said Winsted Manufacturing Company and the said defendants, that the said insurance should be binding on the part of the defend- ants for the term of three months from the time of the receipt of the said premium, for the sum of dollars, and the said defendants then and there, in consideration of the premises, promised and agreed to and with the said Winsted Manufactur- ing Company, to execute and deliver to them, in a reasonable and convenient time, a policy in the usual form of their policies, (b) This Is in substance the complaint sured should proceed to compel the de- in Rockwell v. Hartford Fire Ins. Co., livery of a policy before he can recover 4 Alibotts' Pr., 179. It was held in that the insurance, but he may maintain an ease that where there is an agreement action upon the agreement and the to insure and to deliver a policy, and a loss, taking judgment for payment f ' loss occurs feefore the delivery of a the amount due only. p»licy^ it is not necessary that the in- COMPLAINTS. • 301 On an Agreement to Insure. insuring the said stock of goods in the suin of dollars against loss and damage by fire, the insurance to commence at the time of the receipt of the said premium, and continue for the said term of three months. Y. That the defendants, by a policy of insurance issued in their usual form (among other things), do promise and agree [here set out legal effect of the contemplated j)olioy j e.g.'] to make good unto the insured all such immediate loss or damage, not exceeding in amount the sum insured, as shall haj^pen by fire to the property insured, within the time for which the in- surance is made, the loss or damage to be estimated according to the actual cash value of the property at the time the loss shall happen ; the loss to be paid within sixty days after notice and proof thei'eof made by the insured, and received at the de- fendants' office in conformity to the conditions annexed to the policy. And by one of the conditions usually annexed to such policy, it is provided that all persons insured by the defend- ants and sustaining loss or damage by fire, are forthwith to give notice thereof to the company, and as soon after as pos- sible to deliver in a particular account of such loss or damage, signed with their own hands^ and Verified by their oath or affirmation ; and shall also declare on oath whether any and what other insurance has been made on the same property ; what was the whole value of the subject insured ; what was their interest therein, and (among other things) in what gen- eral manner the building insured or containing the subject insured, and the several parts thereof, were occupied at the. time of the loss, and when and how the fire originated, so far as they know or believe ; and by another condition it is stipu- lated, on the part of the defendants, that payment of losses shall be made in sixty days after the loss shall have been as- certained and proved, and the proof received at the office of the company. VI. That after the insurance so made, and after the said promise to execute and deliver a policy in conformity thereto, and within the said term of three months, for which the said Winsted Manufacturing Company was so insured, to wit, on the day of ' , 18 ., the said stock of merchandise in the said building mentioned and intended to be so insured, was dam- aged and in part destroyed [or, was totally destroyed] by fire, 302 ABBOTTS' FORMS. Actions on Contract for Payment of Money — Insurance. and that the said Winsted Manufacturing Company thereby sus- tained loss and damage to a large amount, to wit, to the amount of dollars, and to more than the sura of dollars over and above all insurance thereon. VII. That said "Winsted Manufacturing Company duly ful- filled all the conditions of said agreement and insurance on their part {a) [and more than sixty daj's, or otherwise as required iy the policy, before the commencement of this action, to wit, on the day of , 18 , {b) at , gave to the defend- ants due notice and proof of the loss as aforesaid, and duly de- manded payment of the said sum of dollars]. VIII. That no part of the same has been paid. IX. That on the day of , 18 , at , the said Winsted Manufacturing Company duly assigned to this plaintiff the said agreement and insurance, and their claim against the defendants thereon, of which the defendants had due notice, (c) II. Life Policies. 389. By Executor. I. [For allegation of incorporation of defendants, see Form 384.] II. That on the day of , 18 , at , in con- sideration of the payment by one M. N. to the defendants, of the premium of dollars [annually during his life], the de- fendants, by their agents duly authorized thereto, made their policy of insurance in writing, a copy of which is annexed as a part of this complaint, and marked " Exhibit A," and thereby insured the life of said M. JST. in the sum of dollars. (a) The original complaint in this plaintiffs gave notice thereof to the de- case avers in detail compliance with all fendants, — Held, that the plaintiffs the conditions precedent, in the old were not precluded by the terms of form. The more convenient way is to their complaint from showing on the aver due performance of all the con- trial that the proper notice was given ditions precedent, as ahove, under sec- on the morning of the 21st. Hovey tion 163. ■». American Mutual Ins. Co., 3 Buer. (5) Where the complaint averred 554. that the property insured was destroyed (c) If the assignment was before the by fire on the 20th of May, 1853, and performance of the conditions prece- that as soon as possible thereafter, that dent, allege performance as in Form is to say, on the 24th of May, 1853, the 385, instead of paragraph VU COMPLAINTS. 303 On Life Policy, Payable to Third Person. III. That on the day of , 18 , at , said M. N. died, which death was not caused b}' [the causes excepted in the policy]. lY. That thereafter, and before this action [or, on the day of , 18 j, said M. N. died, leaving a will, by which the plaintiif was appointed the sole executor thereof [or, this plaintiff and C. D. were appointed executors thereof]. Y. That on the day of > 18 ; said will was duly proved and admitted to probate in the office of the surrogate oi the county^of , and letters testamentary thereupon were thereafter duly issued and granted to the plaintiff, as sole exec- utor, by the surrogate of said county ; and this plaintiff there- upon duly qualified as such executor, and entered upon the dis- charge of the duties of his said office. YI. That said M. N. and the plaintiff each duly fulfilled all the conditions of said insurance on his part. YII. That no part of the same has been paid, and the said sum is now due thereon from the defendants to "the plaintiff, aa such executor. 390. By Wife, Partner, or Creditor, Insured. I. [For allegation of incorporation, see Form 384.J II. That on the day of , 18 , at , in con- sideration of the payment by the plaintiff to the defendants of the [annual] premium of dollars, the defendants, by their agents duly authorized thereto, made and delivered to the plaintiff their policy of insurance upon the life of M. N., a copy of which is annexed as a part of this complaint, and marked " Exhibit A ;" and thereby insured the life of said M. IST. in the sum of dollars, payable to the plaintiff. III. That the plaintiff was then the wife of said 0. B. [or, the partner of said C. B., in the business of, &c., or, a creditor of said C. B. to the amount of dollars, stating facts showing his interest in the life], and as such had a valuable interest in the life of said M. K lY. That on the day of ,18 , at , said M. N. died, which death was not caused by [the causes except- ed in the policy']. 304 ABBOTTS' FORMS. Actions on Contract for Payment of Money — Insurance. V. That said M. N. and the plaintiff each duly fulfilled al! the conditions of said insurance on their part. VI. That no part of the same has been paid, and the saic sum is now due thereon from the defendants to the plaintiff. 391. By the Assignee in Trust for the Wife of the Insured. I. \_For allegation of incorporation of defendants, see Form 384.] II. That on the day of , 18 , at , in con- sideration of the payment by one M. !N"., to the defendants, of the premium of dollars [annually during his life], the de- fendants, by their agents duly authorized thereto, made their policy of insurance in writing, a copy of which is annexed as a part of this complaint, and marked " Exhibit A ;" and thereby insured the life of said M. IST. in the sum of dollars. III. That on the day of , 18 , the said M.. E". [with the written consent of the defendants, by their said agents, duly indorsed on the policy, or otherwise state such consent as is required hy the terms of the policy'] duly assigned (d) said policy of insurance to this plaintiff in trust for L. JST., liis wife, (e) IV. That up to the time of the death of M. N. all premiums accrued upon said policy were duly paid, (y) V. Th'at on the day of , 18 , at , said M. N. died, which death was not caused by {the causes excepted in the policy']. YI. That said M. JST. and the plaintiff each duly fulfilled all the conditions of said insurance on their part [and the plaintiff, (d) The assignee for value of a policy trust for the wife of the insured, may. of insurance effected by the assignor upon the death of the latter, sue in liia upon his own life is entitled, updn the own name as trustee of an express death of the assignor, to recover the trust for the sum insured. Neither the whole amount insured, without refer- wife nor the personal representatives of ence to the consideration paid by him the insured are necessary parties. St. for the assignment. St. John «. Amer- John v. American Mutual Life Ins. Co., ican Mutual Life Ins. Co., .3 Duer, 419 ; 3 Buer, 419 ; S. C, 13 N. T. Leg. Obs., ■^SW.Y. {3 Kern.), 31. The averment 365. that the assured " duly assigned" is (/) This allegation is not necessary sufficient. Fowler v. N. T. Indemnity in addition to the general allegation of Ins. Co., 33 Barb., 143. due performance of all the conditions (e) The assignee of a life policy in authorized by section 1 63. COMPLAINTS. 305 On Valued Marine Policy. more than sixty days, or as otherwise required T)y the policy, before the commencement of this action, to M'it, on the day of , 18 , at , gave to the defendants due no- tice and proof of the death of said M. N. as aforesaid, and duly demanded payment of the said sum of dollars]. VII. That no part of the same has been paid, and the said sum is now due thereon from the defendants to the plaintiff. III. Marine Policies. 392. On a Valued Policy on Ship or Cargo. I. For allegation of incorporation, see Form 384. II. That on the day of , 18 , at , in con- sideration of the premium of dollars, then and there paid to them by the plaintiff [or, which this plaintiff then and there agreed and became liable to pay to the defendants], (g) the de- fendants, by their agents duly authorized thereto, made their policy of insurance in writing, of which a copy is annexed as a part of this complaint, and marked " Exhibit A," * and thereby insured for him dollars upon the ship [or, upon the cargo, or, certain goods, then laden, or, about to be laden, upon the ship] , then lying in the harbor of, &c. \or as the case was'], for a voyage from • to , against the perils of the seas [or, the perils of fire, mentioning theperils which occasioned the loss], and other perils in the policy men tioned. III. That on the day of , 18 , the said ship sailed from said on the voyage described in the policy, (h) and while proceeding therein [or, during said voyage and while lying in the port of, &c.], was by the perils of the seas wrecked and totally lost [or, was burned and wholly destroyed by fire].(*) • (g) The complaint must aver pay- were laden, and their loss. Marsh on ment, or a liability to pay the pre- Ins., 3 ed., 244, 345, 378, 734. mium. 2 Oreenl. on M., §§ 876, 381 ; (J) It is said, that if certain risks Phil, on Ins., 611. were excepted, the loss should be so (7i) TJie inception of the risk is an stated as to appear not to have been essential fact to be proved. 3 Oreenl. caused by those risks. In other words, orvEv., 383. If the insurance was upon that the complaint must show a loss of goods to be laden, state here that they a nature intended to be covered by the Vol. I.— 30 806 ABBOTTS' FORMS. Actions on Contracts for Payment of Money — Insurance. lY, That the plaintiif was, at the time of the commencement of the risk and thereafter until the said loss, the owner of said \insured property^ or, interested in said insured property] to an amount exceeding \the whole amount insured], to wit, dollars, {j) insurance. Ellis on Mre Ins., 176; Phil, on Ins., 618. But the plaintiflF is not bound to negative all possible de- fences. For example, where the policy contains a provision that no camph^e was to be used on the premises, it is not necessary to negative a breach of the condition, for its observance is not necessary to be proved on the trial as one of the facts constituting the cause of action. If broken, the breach is a matter of defence, to be set up by the answer. Hunt v. Hudson River Fire Ins. Co., 2 Duer, 481. See, also, Ruck- er v. Green, 15 East, 288. , ( j) Since the passage of the act re- lating to wagers, &c. (1 Rev. 8tat., 663, §§ 8, 9, 10), it is necessary that the plaintiff, in complaining upon a policy of insurance which, upon its face, does not show any interest in the plaintiff, should aver that the insured had an interest to be protected thereby, unless the claim was assigned to him after- wards, or unless he sues as trustee of an express trust. Freeman «. Fidton Fire Ins. Co., \\ Abbotts' Pr., 398. And an averment that he gave the defend- ants due proof of loss and of interest cannot be construed as an averment that the plaintiff had an insurable in- terest. WiUiams v. Ins. Co. of North America, 9 Mow. Pr., 365. The inter- est of the insured is one of the facts constituting the cause of action. 2 Oreenl. on Ee., §§ 376, 378-381. It cannot be urged, as in the case of a contract under the Statute of Frauds, tha,t the statute merely prescribes a rule of evidence ; and it seems to be 'ihe safer practice to aver the interest when it does not distinctly appear' in the policy as set forth or annexed. See 3 Pm. on Ins., 613, g| 2018, 2019 ; Ellis on Fire Ins., 175 ; note 1. This may be more briefly done by inserting after the description of the object in- sured, — " then, and until the loss here- inafter mentioned, the property of this plaintiff." Alleging that the defendants, in con- sideration, &c., insured him against loss, &c., on his three story and attic stone building, &c., and on a frame one-story building attached, occupied by the said insured, is a sufficient averment of in- terest, at least on demurrer. If the averment is too general, the defend- ant's remedy is by motion. Fowler v. N. Y. Indemnity Ins. Co., 23 Barb., 148. In a declaration upon a policy of in- surance on the cargo of a canal-boat, it was held a sufficient averment of the plaintiff's interest to allege that the in- surance was " for the account and ben- efit of the plaintiff as a common carrier, for hire, &c. ;" and a sufficient aver- ment of the liability incurred to state that an amount of goods exceeding that mentioned in the policy was intrusted to him as a carrier, and that they were consumed by fire, and the plaintiff thereby became liable to pay to the respective owners a greater sum than that insured. It is not necessary to aver actual payment. Van Natta ®. Mutual Security Ins. Co., 3 8andf., 490 , and see De Forest «. Fulton Fire Ins. Co.; 1 Sail, 84. And as to the form of the averment of an assignee's interest in the subject insured, see Granger » Howard Ins. Co., 5 Wend., 200. It need not be averred that the plain- tiff was interested at the time of mak ing the policy. In marine insurance, COMPLAINTS. 307' On Open Marine Policy. V. That the plaintiff duly fulfilled all the conditions (k) of said policy of insurance on his part [and more than sixty days, or as otherwise required hy the policy ,' before the commence- ment of this action, to wit, on the day of , 18 , at , he gave to the defendants due notice and proof of the loss as aforesaid, and duly demanded payment of said sum of dollars]. YI. That no part of the same has been paid, and there is now due from the defendants to the plaintiff thereon the sum of dollars, with interest from, &c. 393. The Same, on an Open Policy. [As in preceding form, substituting in paragraph II. at the *] and thereby promised to pay to the plaintiff, within days after proof of loss and interest, all loss and damage accruing to him by reason of the destruction or injury of the ship [or, of tlie cargo, or, certain goods, then laden, or, about to be laden upon the ship], then at , during its next voyage from to , whether by perils of the sea or of fire \nien- tionitig the perils which occasioned the loss'], or by other causes therein mentioned, not exceeding dollars, (l) an interest at tlie commencement of tions precedent. 3 Oreenl. on Ek., the risk is sufficient. 3 Oreenl. on Ee., § 383. 881, § 330 ; 3 Phil, on Ins., 614. If the insurers waived preliminary In an action upon a policy of insur- proofs, or any other condition in the aace, upon property -wliich is admitted policy, the -waiver should be averred to have been owned by the plaintiff instead of averring performance. See when the policy was issued, the burden ante, 810, note (d). of proof is upon the defendants to show (I) In an action on an open policy a subsequent alienation of- the property, providing that the company shall be Orrell ^. Hampden, &o., Ins. Co., 13 liable for such sums as shall be speci- G-ray {Mass.), 431. fled by application, and mutually {K) Under section 163 of the Code, agreed upon and indorsed upon the the first claase of paragraph V. con- policy, it is necessary to aver that an tains a'sufflcient averment of the fulfil- amount sought to be recovered had ment of the conditions. All express been mutually agreed upon, and in- warranties and all afBrmative aver- dorsed upon the policy. Crane v. Evans- ments are of the nature of condi- viUe Ins, Co., 13 Ind., 446. 308 ABBOTTS' FORMS. Actions on Contracts for Payment of Money — Insurance. 394. Upon Freight. \As in Form, 392, substituting at the * in paragraph II.], and thereby insured for him dollars upon freight of certain goods then laden [or about to be laden] in the ship , then at , to be transported by the plaintiff from to , against the perils of the seas [or, the perils of fire, Tnen- tioning the perils which occasioned the loss'\, and other perils in the policy mentioned. III. That on the day of , said ship sailed from , on the voyage described in the policy, and while pro ceeding thereon [or, during said voyage, and while lying in the port of, &c.], said goods, the freight whereof was insured, were lost by [the perils of the sea]. lY. That the plaintiff has not received any freight upon said goods, nor was any earned thereon by reason of [such loss of the vessel]. [(?/■, where the freight was paid in advance.'] IV. That the plaintiff thereupon became liable to repay [and on the day of , at , did repay] to the shippers of said goods, the sum of dollars, freight which had been advanced by them. Y. and YI. as in Form 392. 395. Averment of Loss hy Colhsion. {Substitute for paragraph III. in preceding forms ^ III. That on or about the day of , while the said ship or vessel in said policy named [with the said goods on board], was proceeding on her said voyage, and before her arrival at her said port of destination in the said policy mentioned, another vessel, with great force and violence was carried against and ran foul of the said ship, and the said ship thereby was sunk and lost [with the said goods, which thereby were wholly lost to the plaintiff]. 396. Averment of Waiver of a Condition. That afterwards [and on the day of , at ], the defendants, by their agents duly authorized thereto, waived COMPLAINTS. 309 On Marine Policy. the condition of the said policy by which {designating if], and released and discharged the plaintiffs from the performance thereof [or, and consented that the plaintiffs should, &c., ac- cording to thefacts\. 397. For a Partial Loss and Contribution to General Average, {pi) [I. and II. as in preceding forms.] III. That said ship did, on the day of , sail on said voyage, and whilst proceeding thereon was by the perils of the seas dismasted and otherwise damaged in her hull, rigging, and appurtenances ; insomuch that it was necessary for the preser- vation of said ship and her cargo, to throw over a part of said cargo, and the same was accordingly thrown over for that pur- pose. IV. That by means thereof the plaintiff was obliged to ex- pend dollars in repairing said ship at ; and, also, [or, and is also liable to pay] dollars as a contribution to and for the loss occasioned by throwing over a part of said cargo. y. That said ship also suffered much damage that was not repaired at , to wit, to the amount of dollars. {Continue as Y. and VI., in Form 382, above.] Aeticle VIII. — Leases, (n) 398. Lessor against lessee p. 310 399. The same, for a deficiency after a re-entry by the lessor : . 310 400. Lessor against assignee of lessee 311 401. Lessor against the executors of the lessee 312 402. Qrante,e of reversion, against lessee 313 403. Assignee of rent against lessee 314 404. Heir of reversioner against the lessee 814 405. Assignee of the devisee of the reversion, and rent, against an assignee of part of the premises 314 (m) This form is j&om 2 Cfreenl. Be., cupation, see Form 252, &c. For ac- 413, § 378, note. tions for breaches of other covenants (ra) For a complaint for use and oc- than for payment of rent, see infra. 310 ABBOTTS' FORMS. Actions upon Contracts for Payment of Money — Leases. 398. Lessor against Lessee. I. That heretofore the plaintiff, by an indenture made be- tween him and the defendant, bearing date the day of , 18 , demised andJeased to the defendant certain prem- ises therein mentioned \or very hriejly designate theTri], (p) at the yearly rent of dollars. II. That the defendant thereby covenanted to pay said rent quarterly on the first day of, &c., in each year. III. That the plaintiff has duly performed all the conditions thereof on his part. IV. That the defendant has not paid the rent of the [quarter] ending on the day of , 18 , amounting to dollars. 399. The Same, for a Deficiency after a Re-entry iy the Lessor. (j>) I. That heretofore the plaintiff, by an indenture made be- tween him and the defendant, bearing date the day of , 18 , demised and leased to the defendant certain premises therein mentioned [or very hriefly designate theni], at the yearly rent of dollars, payable quarterly on, &c. ; and further covenanted with the plaintiff that he would not [here state special covenanf], and that in case of any breach on his part of said covenant, the plaintiff reserved full power which was thereby acceded to by the defendant to re-enter said premises, and eject the occupants thereof, and relet the same for the benefit of the defendant. II. That the defendant contrary to his covenant [here state the hreach"], and that? the plaintiff for that cause re-entered the premises, and took possession thereof by virtue of the authority given herein in the lease, and as agent of the defendant, aiid not otherwise, and that he made diligent efforts to relet the premises for the defendant, but was unable to do so. (o) It is not necessary to set forth the several leases between the parties, so premises, nor need they be designated that the complaint would not be sufE- (Duudas «. Lord Waymouth, Oowp., ciently certain without a designation. 665; VanRensselaer-i). Bradley, 3 JOera., {p) This form is supported by Hall 1351, except, perhaps, where there are ». Gould, 13 N, T. (8 Kern), 127. COMPLAINTS. 311 Upon Covenants to Pay Rent. ni. That thereby the plaintiif lost the snni of dollars rent, which would have been payable to him on, &c. 400. Lessor against Assignee of Lessee, {q) I. That on the day of , 18 , by a lease in writ- ing, then made between this plaintiff and one M. N., under the hand and seal of said M. N. [of which a copy is annexed as part of this complaint], (r) this plaintiff leased to said M. N. cer- tain lands \or very hrii'fiy designate them], to have and to hold to said M. N. and his assigns, from the day of , 18 , for the term of , then next ensuing, for the yearly rent of dollars, payable to this plaintiff on the [_state days of paymeni], which rent said M. N. did thereby for himself and his assigns, covenant to pay to the plaintiff accordingly. [II. That by virtue thereof, said M. N., on the day of , 18 , entered into the demised'premises, and was pos- sessed thereof.] in. That thereafter, and during said term, to wit, on the day of , 18 [naming a day iefore the hreacJi], all the estate and interest of said M. N. in said term, by an assign- ment then by him made, became vested in the defendant, (.?) who thereupon entered into the demised premises, a!id became possessed thereof [and continued so possessed from thence hitherto, or, until, &c.J {t) (g) This form is supported by Hols- proportion, he may allege the facts ac- man «. De Gray, Q Abbotts' Pr., 79. cordingly, and pray judgment against (r) In an action on an instrument in them jointly, if it should turn out they writing, it is often best to set forth the were jointly liable, or severally for instrument, or those parts of it in ques- their proper portions, if their liability tion, or to annex a copy, and refer to it should prov* to be several. Van Reus- as a part of the complaint. Fairbanks selaer v. Layman, 10 H&w. Pr., 505 i). Bloomfleld, 3 Duer, 349. As to liability of one who has ac- («) In this action it is not necessary quired possession without a. valid as- to set forth the assignment specially, signment, aee Carter v. Hammett, 13 becauseit is a matter peculiarly within Ba/rb., 353; Ryerss «. Farwell, 'did., the defendant's knowledge. Van Reus- 615. selaer «. Bradley, 3 Den., 135 ; Norton {t) The assignee is liable upon the B. Vultee, 1 HaU, 384. covenants of the lease only for the rent Where the plaintiff seeks to recover becoming due during the time in which against the assignees of the term, and he or his tenants have possession of is ignorant whether they hold jointly the premises. Astor v. L'Amoreaux, 4 or severally, and if severally, in what Band/.. 534. But the clause in brack- 313 ABBOTTS' FORMS. Actions upon Contracts for Payment of Money — Leases. lY. That during the time the defendant was so possessed of the premises, to wit, on the day of j 18 , the sum of dollars of said rent, for the quarter ending on that day [or otherwise], became due to the plaintiff from the defendant; but no part thereof has been paid, (w) 401. Lessor against the Executors of the Lessee, (v) I. That on the day of , 18 , by a lease in writ- ing, then made between the plaintiff and one M. N,, under the hand and seal of said M. N. [of which a copy is annexed as part of this complaint], the plaintiff leased tq said M. N. certain lands [or very 'briefly designate thern], to have and to hold to said M. N. and his executors, administrators, and assigns, from the day of > 18 , for the term of , then next ensuing, for the yearly .rent of dollars, payable to this plaintiff on the [state days of payment], which rent said M. N. did thereby for himself and his executors, administrators, and assigns, covenant to pay to the plaintiff accordingly. II. [That by virtue thereof, said M. N., on the day of , 18 , entered irito the demised premises, and was pos- sessed thereof.] III. That thereafter and during said term, said M. 'N. died, to wit, on the day of , 18 , leaving a will appoint- ing the defendants his executors. rV. That the defendants, by an order or determination of the surrogate of the county of , duly made on the day of 5 18 , were appointed, and now are, the execu- tors of his said will. Y. That as such executors the defendant took possession of? and occupied the premises under said lease. ets is not essential ; for in . tlie absence sary to aver, in addition, that the 1 of any allegation to the contrary, the has not paid it. Dubois v. Van Orden, presumption is that the possession con- 6 Johns., 105 ; Van Rensselaer v. Brad- tinued. Van Rensselaer v. Bonesteel, ley, 3 Den., 135. But it is enough to 24 Barb., 365. aver that he has not paid it. Holsman (m) It is sufficient to show that rent ii. De Gray, 6 Abbotts' Pr., 79. which accrued subsequent to- the as- («) This form is supported by Pugsley signment, and during the assignee's «. Aikin, 11 N. Y. (1 Kern), 494 ; re- possession is unpaid ; and it is unneces- \ersing S. C, 14 Barb., 114. COMPLAINTS. 313 Upon Covenants to Pay Eent. YI. That the sum of dollars of said rent for the quarter ending on [« day hefore the lessee's deatK\, became due on said day to the plaintiff from said M. N., but no part thereof has been paid. YII. For a further breach the plaintiiF alleges that after the death of said M. N., and while the defendants were so in pos- session, the sum of dollars of said rent for the quarter ending on, &c., on that day became due to the plaintiff from the defendants, but no part thereof has been paid, (■w) 402. Grantee of Reversion^ against Lessee, I. That one M. N., being the owner in fee of certain premises \or very hriefiy designate them], did, on the day of , 18 , by a lease in writing then made between him and the defendant, under the hand and seal of the defendant [a copy of which is annexed as part of this complaint], lease to the defend- ant said premises from the day of , 18 , for the term of , then next ensuing, for the yearly rent of dol- lars, payable to said M. N., his heirs and assigns, on the \_state days of paymenf], which rent the defendant did thereby cov- enant to pay to said M. N., his heirs and assigns, accordingly. [II. That by virtue thereof, the defendant entered into the demised premises, and was possessed thereof.] in. That thereafter, and on the . day of , 18 , said M. N., by his deed, under his hand and seal [a copy of which is hereto annexed], sold and conveyed to this plaintilF the demised premises [of which the defendant had due no- tice], (a?) {w) Demands for rent wMch ae- tator, with a claim for damages for crued in the lifetime of a decedent, breacli of covenant respecting personal and for rent accruing after his decease, property embraced in the lease. The while the tenancy was continued by testator might have brought one ac- the executors on account of the estate, tion ; and the plaintiff has a common are properly joined as one cause of ac- interest as executrix and devisee. Arm- tion in a suit against the executors as strong ®. Hall, 17 How. Pr., 76. such. Pugsley v. Aikin, 11 N. T. (1 {x) The declaration should show the Kern), 494 ; reversing S. C, 14 Barb., assignments or conveyances by which 114. ' the plaintiff claims title ; and if there One who is both executor and devi- are several, they should all be stated, see of the lessor may join a claim for See Beardsley v. Kiiight, 4 Vermont, rent subsequent to the decease of tes- 471. 314 ABBOTTS' FORMS. Actions upon Contracts for Payment of Money — Leases. TV. That thereafter, to wit, on the day of ' > 18 , the sum of dollars of said rent, for the quarter ending on that day [or otherwise], became due to the plaintiff from the defendant ; but no part thereof has been paid. 403. Assignee of Rent against Lessee. [I. and II., as in preceding form.'] (y) III. That thereafter, and on the day of > 18 , said M. N. duly assigned to the plaintiff said covenant and all his right to the rent therein secured IV. \_As in the preceding form.] 404. Heir of Reversioner against Lessee, {z) I. That one M. N., now deceased, being in his lifetime^ the owner in fee of the tenements hereinafter mentioned, on \&o., state the lease, and the covenants which were irohen, as in the preceding forms]. II. That the said M. E"., being seized of the reversion in said demised premises, afterwards, and during the said term, on [c&c], died so seized ; whereupon the said reversion then de- sce.nded to the plaintiff as his [son and only child and] heir; and thereby the plaintiff then became seized thereof in fee. III. That thereafter, to wit, on, &c., the sum of dollars of said rent, for the quarter ending on that day [or otherwise], became due to the plaintiff from the defendant ; but no part thereof has been paid. 405. Assignee of the Devisee of the Reversion and Rent, aga^nst an Assignee of Part of the Premises, {a) I. That one M. IST., being the owner in fee of certain premi- ses [or very hriefly designate them], on the day of , 18 , by lease in writing then made between him and one 0. P., under the hand and seal of said O. P. [a copy of which is (y) The assignee of rent, suing in his («) This form is taken from Swan's own name, should allege distinctly, PL, 395. that there was a lease, that the defend- (a) This form is supported by Van ant was lessee, and is sued for the rent. Rensselaer v. Bonesteel, 24 Barb., 365. Willard v. Tillman, 3 HUl, 374. COMPLAINTS. 315 Upon a Note Payable on Contingency. annexed as part of this complaint], leased to said O. P. said premises from the. day of , 18 , for the term of , then next ensiling, for the yearly rent of dollars, payable to said M. N., his heirs and assigns, on the [state days qfjMyment], which rent O. P. did thereby covenant to pay to said M. N., his heirs and assigns, accordingly. II. That by virtue thereof the defendant entered into the de- mised premises, and was possessed thereof. in. That thereafter, and during said term, to wit, on the day of ,18 [naming a day before the hreaoh'], said O. P. duly assigned all his interest in a divided part of the land, equal in value to the residue of the demised premises, and thereby the defendant became tenant of such part. IV. That on the day of , 18 , said M. N. died, having by his last will and testament devised the [reversion and] rent to one Q. P., which said will was duly proved and recorded as a will of real estate before the surrogate of tlie county of , on, &"c. V. That Q. E., on the day of , IS , duly [con- veyed and] assigned said [reversion and] rent to the plaintiff. YI. That thereafter, to wit, on the day of , 18 , the sum of dollars of said rent, for the quarter ending on that day [or otherwise'], became due to the plaintiff from the defendant ; but no part thereof has been paid. Article IX. — Notes not Negotiable. 406. On a note payable in case tbe profits of the maker's business exceed a certain sum p. 315 407. On a note payable in chattels 316 406. On a Note Payable in Case the Profits of the Maker's Business Exceed a Certain Bum. I. That on the day of , 18 , at , the defend- ant [for value received, or, in consideration of, &c.] (5) made (&) If the agreement as set out admits common law sufficient to state that receipt of the consideration, a separate the note was given for value received, averment of the payment of the con- Jackson v. Alexander, 3 Johns., 484. sideration is unnecessary. Ward ■». But if plaintifif undertook to set forth Sackrider, 3 Cai., 263. It was held at the consideration specially, he wae 316 ABBOTTS' FORMS. Actions on Contracts for Payment of Money — Notes. and delivered to the plaintiff (c) his promissory note in writing, of which the following is a copy : $100 Brooldyn, 1st January, 1856. For value received, I promise to pay to A. .B. one year after date, one hundred dollars, in case the proceeds of the milk- route I have this day bought of him shall exceed the sum of two thousand dollars. (Signed) Y. Z. II. That the proceeds of said milk-route did, before the expi- ration of said year, exceed the sum of two thousand dollars [of which the defendant, on the day of , 18 , at , had due notice, and payment of said note was then and there duly demanded], {d) III. That no part of said note has been paid [except, &c.] ; and there is now due to this plaintiff thereon, from the defend- ant, the sum of dollars, with interest from, &c. 407. On a Note Payable in Chattels. 1. That on the day of ,18 , at , the de- fendant, for value received [or, when the consideration is de- scribed in the note, for a valuable consideration therein ex- pressed, or, where no consideration is mentioned, for and in consideration of, &c., stating the real consideration, whatever it may have ieen], made and delivered to the plaintiff his promis sory note in writing, of which the following is a copy : " For value received, I promise to pay Martin Gilbert three bound to prove it as laid. Jerome v. burden of proof is on him to allege and Whitney, 7 Id., 331. If the instru- show it. Considerant v, Brisbane, 14 ment set forth does not express or Im- Sow. Pr., 487. port a consideration, the consideration (c) If .the plaintiff claims as assignee, must be averred. Spear v. Downing, substitute " to M. N., the payee therein 34 Barb., 523; S. C, 13 Abbotts' Pr.,- named," in place of the words, "the 437 ; Lansing v. McKiUip, 8 Gai., 286. plaintiff," and add an allegation of as- If it specifies a consideration, and states signment to the plaintiff. Averring that such consideration had not been an indorsement to liim is not appro- received, and also states, or dearly im- priate. Brown «. Richardson, 20 If. Y., plies, that the consideration is to be 472. transferred when the money is to be (d) If the contingency upon which paid, the complaint must allege that the payment was to depend is one the plaintiff has transferred or tender- which is not peculiarly within the de- ed the consideration. This is matter fendant's knowledge, this averment, or of substance and not of form, and the its substance, should be inserted. COMPLAINTS. 317 On Subscription Papers. hundred and sixty-two dollars and fifty cents in castings, (e) such as said Gilbert shall select and direct, such as are cast at the Middleburgh furnace, which I agree to dehver at Gilbert's dwelling-house at Ghent, in Columbia county, at 4^ cents per pound, to be delivered within or by the first day of March next, and agree to deliver some castings, as it may be convenient for me to deliver, soon ; said Gilbert to give timely notice what castings he will select or want; and in default thereof, I agree to pay the money for such part as is not paid in castings. June St/i, 1843. (Signed) ~ Thos. P. Danfoeth. II. That the plaintiff thereafter duly performed all the con- ditions of the same on his part. (/") "in. That no part thereof has been paid(^) [except, &c.] Article X. — Subscription-Papers, (h) 408. By a corporation, on a stock subscription p. 318 409. The same, a shorter form 321 410. On a subscription to the expenses of a public object 323 (e) Upon such a note the measure of damages in this State is the sum of money named, not the value of the goods. Pinney ■». Gleason, 5 Wend., 893 ; EockweU «. Rockwell, 4 Sill, 164; and see Gilbert v. Danforth, 6 J!r. Y. (2 Seld.), 585. (/) A ijote payable in specific arti- cles, without specifying time or place, is payable on demand, and a special demand is necessary. Lobdell v. Hop- kins, 5 Gow., 516 ; but see Barns v. Graham, 4 Id., 452. If the maker deals in the chattels in which payment is to be made, his place of business is the proper place to make demand. And a demand may be made there of any person in charge, in the absence of defendant. It is other- wise of ordinary contracts for delivery of goods, specifying no place. Vance V. Bloomer, 20 Wend., 196; Kice «. Churchill, 3 Ben., 145. That he is not bound to demand all at once, see Vance ». Bloomer, 30 Wend., 196. On a note payable in goods, at or before a day named, no demand need be averred. A demand is only neces- sary if the holder would exercise an election as to the articles. Johnson ■», Seymour, 19 Ind. {Kerr), 34. The indorsement of a note not nego- tiable, is equivalent to the making of a new note, and the indorser in such a case has no right to insist upon a previous demand on the maker. Sey- mour V. Van Slyck, 8 Wend., 403 ; af- firmed, sub nom. Stone v. Seymour, 15 Id., 9. (g) In declaring on a note for a sum of money payable in specific articles, it is enough to allege non-payment of the money, without alleging non-delivery of the articles. EockweU v. Rockwell. 4 EUl, 164. (h) For complaints in actions by a Mutual Insurance Company, or its re- ceiver, to recover assessments upon premium notes, see Forms 300 and 319, supra. 318 ABBOTTS' FORMS. Actions on Contracts for Payment of Money — Subscriptions. 408. By a Corporation, on a Stock Subscription, (i) I. That in. pursuance of an act of the Legislature of the. State of New York, entitled " An Act to provide for the incorpora- tion of companies to construct plank-roads and for companies to construct turnpike-roads," passed May 4, 1847, and of the acts amendatory of the same, the above-named company (j) was duly organized and formed into a corporation under the name of the Poughkeepsie and Salt Point Plank-road Company, (k) II. That on the day of , 18 , at , the said (i) This is the form of complaint em- ployed in the case of Poughkeepsie, &c., Plank-road Co. v. Griffin (21 Ba/rb., 454 ; S. C, 15 JT. T., 583), with sUght formal alterations. (j) Where the statute requires suh- scription before organization, the action may be brought in the name of the corporation, although the subscription was made before there was any corpo- rate existence. Where the subscrip- tion-paper was payable "to the trus- tees or a building committee" of a re- ligious corporation, it was held that the action should be brought in the name of the corporation. Barnes e. PeriBe, 9 Barb., 202. {k) As to general rule respecting the necessity of averring, in the declara^ tion in a suit by a corporation, the cor- porate character of the plaintifls, see Forms 181-183, ante, p. 135. In Oswe- go & Syracuse Plank-road Co. i). Kust (5 Sow. Pr., 390), there was a demur- rer to a complaint for subscriptions to the stock of a company about to be formed, and one ground of demurrer was that the complaint (which averred in general terms that the plaintiffs were an incorporated company, organ- ized pursuant to the general act) did not show that the company had any legal existence. It was held that this averment was sufficient for any pur- pose ; but that in that particular case no averment of plaintiffs' corporate character was necessary, for the reason that the defendant, by subscribing for the stock, had admitted the legal ex- istence of the plaintiffs as a corpora- tion, and could not question their ca- pacity to appear upon the record. This principle was laid down solely on the authority of Dutchess Cotton Manufac- tory «. Davis (14 Johns., 238), from the opinion in which it is substantially a quotation. As to this point, however, the authority of the latter case is some- what shaken by the criticism upon it in Welland Canal Co. v. Hathaway, 8 Wend., 480. And the argument, that the defendant having contracted with a corporation by its corporate name ought to be considered estopped from denying the incorporation in a suit upon the contract, however sound in respect to contracts entered into with an existent corporation, can have no just application to an anticipatory sub- scription to the stock of a company ; where the very notion of the contract is predicated on the fact that tlie com- pany is not yet incorporated, and where the consideration itself of the contrac* involves a future incorporating of the proposed association. See, also, First Baptist Society v. Eapalee (16 Wend.. 605), where defendant, a subscriber be- fore incorporation to " The First Bap- tist Society," was held not estopped to deny the incorporation of the plaintiffs, who sued under the corporate name of "The Trustees of the First Baptist Church." COMPLAINTS. 319 On Subscriptions for Stock in Corporations. defendant and certain other persons, being desirous of associa- ting themselves together for the purpose of constructing a plank-road from the village (now city) of P. to the village of S. P., in said county, and in consideration thereof, and of the mutual promises each to the other, and of the benefits to be derived from being members of said association, made and sub- scribed a certain agreement in writing, as follows, to wit : \Gopy of subscription paper, with defendants' names, and adding], and other persons whose names are here omitted. III. That the said defendant did, at the time of subscribing said agreement, set opposite to his name thereto subscribed the number of ten shares, and that the amount of each share is fifty dollars, and that said defendant promised and agreed to take and pay for the same. lY. That although notice was given in at least one news- paper printed in Dutchess county, of the time and places where books for such subscription to the stock of said road would be opened, and although after such stock to the amount of at least five hundred dollars for every mile of the road so intended to be built had been in good faith subscribed, (J) and five per cent, on the amount had been paid in to the persons named in the articles of association as directors, and the sub scribers had, upo"n due notice, elected directors for said com- pany, and had thereupon severally subscribed ai-ticles of asso- ciation, which had been duly filed in the office of the Secretary of State of tlie State of New York : and although these plain- tifiFs, relying upon the said subscription of the said defendant and of other persons, did expend large sums of money in the construction of said road, and entered into contracts and per- sonal liabilities to a large amount, to wit, tlie sum of dol- lars, (m) and although the directors of said company did, on the (Q Where a given amount of capital the amount of his subscription. Fry stock is required to be subscribed before ■». Lexington, &c., E. E. Co., 2 Met a corporation, by the terms of its charter, {Ky), 314 is authorized to go into operation, it is («i) In an action upon a railroad sub- necessary, in an action by the company scription contract, conditioned to be against a stockholder, to recover the paid in instalments, as might, from amoimt subscribed by him, that the time to time, he called for by the di- petition should allege that the requi- rectors, provided the same should bp site amount of stock had been sub- expended upon a certain line of road, to scribed before he was called upon for be thereafter located by the company, 320 jiBBOTTS' FORMS. Actions on Contracts for Payment of Money — Subscriptions. day of , 18 , make a call {n) for said stock, and require the said defendant and the other stock subscribers to pay upon the capital stock by him and them subscribed, to the treasurer of said company, at their office, No. , &c., five dollars per hundred upon each share of stock so subscribed, on the day of ? 18 ; yet the defendant wholly neglect- ed and refused to pay the said sum of five dollars per hundred upon each share of stock subscribed by him as aforesaid. V. That although the directors of said company afterwards, to wit, on the day of , 18 , made another call for stock, requiring [continue as above]. YI. That although the said directors afterwards, to wit, on the day of j 18 , made a third call for stock, re- quiring [contimie as above]. YII. That the defendant had due notice of the said three several calls for stock made by the directors of said company as aforesaid, and the same were duly published in at least one newspaper printed in Dutchess county, at least thirty days pre- vious to. the time specified for said payments. YIII. That although the whole ten shares of stock subscribed by said defendant became due and payable to these plaintifis in the sums and at the times specified in said calls ; yet the defendant has not performed his agreement, and has wholly neglected and refused to pay the stock by him subscribed, or any part thereof; and is now justly indebted to these plaintifi's thereon in the sum of, &c. the petition must either show that the act of assembly. Barringtou v. Pitts- road was constructed along the line burgh, &c., E. E. Co., 34 Perm. St. B., designated, or an offer or readiness to 358. expend the money subscribed, accord- It will be usually more convenient ing to the condition. Trott v. Sarchett, to substitute, in place of paragraphs 10 0. St., 341. That a general state- IV.-VII. above, the short allegation of ment as to the extension would be suf- performance authorized by section 162 ficient, see Miller ■». N. Y. & Erie E. R. of the Code, saying. That thereafter the Co., 8 Abbotts' Pr., 481. plaintiffs, by their directors, duly made (n) A complaint on a subscription to and notified calls upon said stock, re be paid as assessed, must aver a proper quiring the defendant to pay the sum tissessment. Gebhart d. Junction E. E. of dollars, on the day of Co., 13 Ind., 484. An allegation that , 18 , and the sum of dol- caUs for unpaid instalments were " duly lars on, &c. ; and otherwise duly per- made," is a suflBcient averment that formed all the conditions thereof on they were made in conformity with the their part COMPLAINTS. , 321 Upon Subscriptions for Stock in Corporations. 409. The Same, a Shorter Form, (o) I. [For averment of incorporation, see the preceding form.)^ II. That in contemplation of the incorporation of these plain- tiffs, and for the purpose of constructing, owning, and maintain- ing the Eailroad, then contemplated, the defendant [with several other persons] on the day of , 18 , at , became a subscriber to the stock of the said railroad by [severally] signing and delivering an agreement in writing, of which the following is a copy : [copy of the subscription-paper with the defendants' names, adding, and other persons whose names are here omitted], {p) III. That among other persons the defendant signed and exe- cuted the said agreement, and set opposite to his name the sum of dollars, {q) which he thereby agreed to pay to said company ; and said subscription of defendant was, immediately after the organization of said company, duly transferred to the regular books of the company. lY. That after the defendant had thus subscribed, and on or about the day of , 18 , he subscribed to the articles of association of said company, his name and his place of resi- dence, to wit, , and the number of shares of stock taken by him, to wit, shares, amounting to dollars, the shares of stock being dollars each. Y. That the plaintiffs by their directors, on the day of , at , required the defendant to pay thereon the (o) This form is supported by Oswego every fact essential to be proved to & Syracuse Plank-road Co. v. Rust (5 support the action ; the consideration How. Pr., 890), where it was held that is implied in the statement of the a complaint alleging generally the in- facts. corporation of the plaintiffs pursuant to (p) It is sufiScient to state the legal a statute referred to, " and that in con- eflect without giving a copy, templation of the organization of the (q) In averring a subscription and company, to wit, on the, &c., upon due payment which a statute requires to be notice, subscription books were opened, paid in money, it is sufficiently specific as required by law, and the defendants to allege that the party subscribed a subscribed to the capital stock of the sum named, and that the subscription company twenty shares, amounting to, was paid, and that the amounts paid &c., and thereby agreed to take twenty were received by the company. Peck- shares of the stock, and promised to ham«. Smith, 9S)w.Pr., 486. See, also, pay the same to," &c,, is good on de- Highland Turnpike Co. «. McKean, 11 murrer ; for it contains allegations of Johns., 98. Vol. 1,-21 322 ABBOTTS' FORMS. Actions on Contracts for Payment of Money — Undertakings. sura of , agreeably to said subscription and the charter and by-laws of the company. VI. That the plaintiffs have duly performed all the conditions thereof on their part. YII. That there is due to the plaintiffs thereon from the de- fendant the sum of, &c., and no part thereof has been paid. 410. On a Subscription to the Expenses of a Public Object, (f) I. \_For averment of incorforation, see Form 408.] II. That the plaintiffs, in the month of , 18 , were erecting a building at , for the purposes of [an academy]. III. That the defendants and others were desirous that the building should be completed, and requested that the plaintiffs should complete the same, and for the purpose of enabling the plaintiffs to do so, the defendants subscribed and agreed to pay the plaintiffs the sum of dollars, in consideration of the premises, and of the like subscription and agreement of other persons [or, in consideration of which the defendants were to receive from the plaintiffs shares of the capital stock of the plaintiffs]. lY. That upon the faith of said subscription, the plaintiffs proceeded with the erection of the building, and expended thereon large sums of money, and incurred large liabilities, and have completed said building, and otherwise duly performed all the conditions on their part. V. That no part of the defendants' subscription has been paid, [except, &c.] Article XI. — Undertakings. [In an action on an undertaking or statute bond, the facts authorizing tlie giving of it, and the compliance with its condition, need not be aven-ed if they are recited in the instrjiment, and it is set forth in the pleading. The recitals are equivalent to averments. («) For other cases of bonds given in proceedings, see Article III., 274-9, 18 , recovered judgment therein, which was duly given by said court against (u) It is unnecessary to recite or re- v. Cowdray, 1 Duer, 132 ; Shaw ». To- fer to a public statute of which the bias, 3 N. Y. (3 Oomst.), iSS ; but see court are bound to take notice. Goelet note {a), infra. COMPLAINTS. 325 On Undertaking given on Discharge of Attachment. the said Y. Z., plaintiflf therein, for the sum of dollars, his costs of defending said action, which has not been paid. Y. That on the day of , 18 , at , this plain- tiff duly demanded payment of the said judgment from said T. Z. ; but no part thereof has been paid. 413. On an Undertaking given to Obtain Discharge of an Attachment, (t)) I. That on or about the day of ) IS , an attach- ment against the property of M. N. was issued out of the Su- preme Court, by an order duly made by Hon. in an ac- tion commenced by A. B., the plaintiif herein, against one M. N., to recover \h.eTe briefly designate the cause of action, — e. g., first, the proceeds of the sale of certain goods, laces, and em- broideries of said plaintiff; second, for money lent by said plaintiff to said M. N. on his own request ; and, third, for money due by said M. IST. to said plaintiff], {w) II. That afterwards, and on or about the day of , 18 , the said M. N. having appeared in said action, and be- ing about to apply for a discharge of said attachment, the de- fendants herein, "W. X. and Y. Z., pursuant to section 241 of the Code of Procedure, undertook in writing in the sum of dollars, that they would, on demand, pay to this plaintiff, the amount of the judgment which might be recovered against said M. N., not exceeding said last-mentioned amount [or, the defendants herein executed and tiled with the clerk of said court a written undertaking, pursuant to sfection 241 of the Code of Procedure, of which a copy is annexed as a part of this com plaint, and marked Exhibit A.J III. That said attachment was thereupon discharged, and that subsequently, and on the day of , 18 , said plaintiff recovered a judgment which was duly given by said court against said M. N. in said action, for dollars, dam- (■») This form is supported by Cruyt to allege in the complaint that the at- V. Phillips, 7 Ahhotti Pr.. 305. tachifient was duly issued, nor to gjiow (m) If it> be shown that the action in that the officer or court had j urisdiction which the^ attachment was issued was to issue it. Cruyt v. PhiUips, TAibotts' brought and pending in a court of Pr., 30.5. gi?neral jurisdiction, it is not necessary 326 ABBOTTS' FORMS. Actions on Contracts for Payment of Money — Undertakings. ages and costs, as appears by the record and docket thereof, duly entered and docketed on the day of j 18 j in the office of the clerk of county, which judgment has not been paid. TV. That a demand of payment thereof to the plaintiff was duly made on said defendants, on or about the day of ,18 , which they and each of them refused ; and that no part thereof has been paid. ■ 414. On an Undertaking for Costs a/nd Damages on an Arrest. I. That heretofore an action was commenced in the Court by the defendant Y. Z. [or, by one Y. Z.] against this plaintiff, wherein the said Y. Z. made application to one of the justices of said court for an order of arrest against tliis plaintiff, whereupon the defendants then and there [or, on the day of , 18 , at ], executed and filed with the clerk of said court, for the benefit of this plaintiff [or, and delivered to this plaintiff], pursuant to section 182 of the Code of Procedure, a written undertaking, of which the following is a copy : [copy of the undertahing']. II. That thereupon, pursuant to said application and under- taking, an order was made by one of the justices of said court for the arrest of this plaintiff, and thereby the said Y. Z. re- quired the sheriff of county to arrest this plaintiff, and hold him to bail in the sum of dollars. III. That this plaintiff was, on or about the day of , 18 , arrested by the sheriff of the , nnder said order, and. was nnjustly detained and deprived of his liberty thereunder for the space of days, to his damage dollars. lY. That such proceedings were afterwards had in said ac- tion, that this plaintiff on the day of ,18 , re- covered judgment therein, which was duly given by said court against the defendant, Y. Z., for dollars, this plaintiffs costs and expenses of defending said action, which has not been paid. V. That on the day of , 18 , at , this COMPLAINTS. 327 On Undertakinar of Bail. plaiiitifi' diil_y demanded payment of said judgment and dam- ages, from the defendant, Y. Z. ; but no part thereof has been paid. 415. On an Undertaking of Bail, {x) I. That on the day of , 18 , at ' , under an order of arrest theretofore duly granted by K. L., a judge of the Court, against one M. !N.,in an action brouglit in said court by this plaintiff against the said M. N. ; the said M. N. was arrested by the sheriff of the county of 0. II. That on the day of , 18 , at , the de- fendants, as the bail of said M. N., executed a written under- taking, pursuant to section 187 of the Code of Procedure, ot which a copy is annexed as a part of this complaint [w, and thereby undertook, in the sum ;f dollars], that the said M. ]Sr. should at all times render himself amenable to the pro- cess of the court, dai'ing the pendency of the said action, and to such as might be issued to enforce the judgment therein \or otherwise, according to the terms of the undertaking']. in. That thereupon the said M. N. was discharged from said arrest. lY. That on the day of , 18 , judgment in said action was duly given by said court, against him, and for the plaintiff, for dollars, which has not been paid. Y. That on the day of ,18 , .execution thereon {x) The complaint in an action upon the issuing and return of an execution a bond given to obtain a discharge unsatisfied, nor that an order had been from arrest on attachment for contempt made for the attachment. Tlie aver- must state plaintiff's connection with ment of the recovery of the judgment, the attachment proceedings, and how and that such proceedings were there- and to what extent he was aggrieved upon had, supplementary to execution, by the acts of the defendant. The or- that tlie court issued the attachment der of the court for the prosecution of under which the instrument sued upon /he bond operates only as an assign- was executed, is sufficient. Kelly ». ment. Bayner ». Clark, 7 Barb., 581. McCormick, 3 E. D. Smith, 503. In an action against a judgment- In declaring on a bond given by an debtor and his sureties upon an under- officer to be relieved from arrest on an taking given to the sheriff for the ap- attachment conditioned to appear at pearance of such debtor upon the return the return-day, and abide the order of of an attacliment for contempt issued the court, an allegation of non-appear- in supplementary proceedings, it is not ance is sufficient. Thomas v. Cameron, necessary to allege in the complaint 17 Wend., 59 ; Hart v. Seixas, 31 Id., \Q 328 ABBOTTS' FORMS. Actions on Contracts for Payment of Money — UndertakiDgs. against his property was duly issued to the sheriff of the county in which he was oiiginally arrested, and the same was returned by such sheriff wholly unsatisfied [or, if in part, say how^ YI. That an execution against his body was issued and tested [or, dated] on the day of 18 , to the same sheriff, and was on the day of 18 , by him returned, that the dufendant could not be found within his county, (y) 416. On an undertahing Given in Proceedings of Claim and Delivery, to Secure the Return of the Property, &c. {z) I. That heretofore this plaintiff commenced an action in the Court, against [T. C, sheriff of the city and county of New York], to recovLT possession of specific personal property. II. Tliat in the course of said action, such proceedings of claim and delivery, under section 20c) of the Code of Proce- dure, {a) were had, that on the day of , 18 , the defendants made and delivered to the coroner [or, usually, the sheriff] for the use of this plaintiff, pursuant to section 211 of the Code, (&) their written undertaking, of which the following is a copy : [copy of the undertahing. 1 III. That the pursunal property referred to in said undor- (j/) This form is accorcling to 2 R. S., mentionerl, in a brief way, and without 382, § 31. Gauntley v. Wheeler, 31 detailing the proceedings. This is the How. Pr., 13*?; The same v. The same, form suggested by the Superior Court 4 Lans., 491. . for an amendment to the complaint in (z) This is in substance the com- Bowdoin v. Coleman, 3 Abbotts' Pi:, plaint in Slack «, Heath, 1 Abbot's' Pr., 431. 331 ; S. C, 4 JE. D. Smith, 95. As to whether it is essential that the This form may be easily modified complaint should show that the action for an actio'n upon the undertaking in which the undertaking was given, given on behalf of the plaintiff on com- was within the statute, compare Bow- mencing such an action. It seems that doin v. Coleman, 3 Abbotts' Pr., 431 ; the sheriff's approval of the undertak- Slack v. Heath, 1 Id., 331 ; Eayner v. ing is not necessary to be averred in an Clark, 1 Barb., 58 1 ; Loomis v. Brown, action on the undertaking. Bowdoiu 16 Id., 325 ; Gregory v. Levy, 12 Id., V. Colemsm, Z Abbotts' Pr., iZl. 610; Gould v. Warner, 3 Wend., 64- (a) It is never necessary to plead a Phillips v. Price, 3 Maule tb S., 180; 1 public statute, nor even to refer to its Bos. & P., 381, note; McMillan v. Dana, title, in order t,o give the party the 18 Cal., 329 ; Coleman v. Bean, 1 Abb. benefit of its provisions (Goeletti. Cow- Ct. App. Dec, 394. drey, 1 Duer, 132); but this reference [b) Or, when the action is upon the is for an entirely different purpose, viz: undertaking given on the part of the to identify the nature of the action plaintiff, " section 209- of the Code." COMPLAINTS. 329 On Undertaking in Proceedings of Claim and Delivery. taking was returned to the said T. C, defendant in said action, pursuant to said undertaking, and to a requisition of said T. C, defendant in said action, made pursuant to section 211 of the Code, (c) and said undertaking was thereupon duly delivered to this plaintiff, {d) IV. That such proceedings were afterwards had, that on the day of , 18 , this plaintiff recovered judgment, which was duly given by said court in said action against T. C, the defendant therein, that the plaintiff recover possession of said property, or the sum of dollars, in case a delivery could not be had. (e) Y. That no return of the property has been had, and no part of said judgment has been satisfied. VI. [State demand, where that is necessary, see fayagrafh v., of Form 414, or state execution unsatisfied^ as follows:'] That this plaintiff thereafter caused execution to be issued on said judgment against T. C. the said defendant, which execu- tion has been returned wholly unsatisfied, (/) and that no part of said sum has been paid. (c) As to the necessity of this aver- ment, see opinion of Woodkufp, J., in Slack «. Heath, 1 Abbotts' Pr., 331 and 343. In a complaint upon a bond given by a defendant in an action, either for the delivery of property replevied, or the release of property attached, it must be averred that the property was delivered or released. This is the consideration, and must be alleged. Palmer v. Mel- vin, 6 Gal., 651 ; Williamson v. Blattan, 9 Id., 500. And this is so even if the imdertaking was under seal. Nicker- Bon u. Chatterton, 7 Id., 568. But if the undertaking recites the performance of the condition, a com. plaint setting forth the undertaking, need not also aver performance. Mc- Millan V. Dana, 18 Oal., 339. {d} Where, in an action upon an un- dertaking given on the part of plaintiff ia an action of claim and delivery, by an assignee of defendant, the undertak- ing is produced upon the trial, a de- livery of it to the promisee pursuant to section 433 may be presumed ; and the complaint is not defective in omitting to aver a delivery as required by that section. Bowdoin ». Coleman, 3 Abbotts' Pr., 431. («) In an action against the sureties in a bond or undertaking given for the return of property replevied, the com- plaint should show a judgment in the alternative, for a return, or for pay- ment of a specified value, and aver that neither has been had ; and the recovery against the sureties can only be for the latter. Nickerson ®. Chatterton, 7 Cat., 568. (/) It seems that where execution on the judgment has been returned un- satisfied, no demand is necessary. Bow- doi,n V. Coleman, 3 Abbotts' Pr., 431. Neither demand nor execution is neces- sary where it is averred that the judg- ment is unpaid. Slack v. Heath 1 Id., 331 ; S. C, 4 M I). Smith, 95. 330 ABBOTTS' FOEMS. Actions on Contracts for Payment of Money — trndertabings. 417. On an ZfndertaTcing for Costs of Appeal, {g) I. That on the day of , 18 , judgment was duly given (k) at [a general term of this cottrt, or, by the Court] in favor of the above-named plaintiffs, against one M. N". for the sum of dollars ; and that on the day of ,18 , the said M. N". appealed to the [Court of Appeals] from the said judgment. II. Tliat upon said appeal, the defendants duly made and filed with the clerk of said court, for the use of these plaintiffs, their written undertaking and justification therein, of which the following is a copy : [copy undertaking']. (*) III. That hj an order of the said [appellate court], made on the day of , 18 , the judgment appealed from was in all respects affirmed, (_;' ) and the sum of dollars, costs and damages on the appeal was awarded against the appellant, but that no part of the same has been paid, {k) (g) As to the liability of tlie sureties upon an undertaking for costs on ap- peal, given by executors defending an action, see Mills «. Forbes, 13 Sow. Pr., 466. (A) An averment that the judgment appealed from was final, or that the judge of the court from whence the ap- peal was taken approved the bond, is unnecessary. Sutherland v. Phelps, 33 m., 91. (i) Where the complaint on an un- dertaking given on appeal to the Court of Appeals, alleged that the party ap- pealed, and that upon said appeal, the defendants " made and filed with the clerk of this court, for the use of the plaintiff," the undertaking in question, and that the appeal had been further prosecuted in the Court of Appeals, and the judgment appealed from there af- firmed ; but it did not state that the undertaking was accompanied by the affidavits of the sureties, as required by section 341 of the Code, it was held sufficient. The imdertaking is not a nullity without such affidavit, and the presumption is that the requirements of the Code were complied with. Gib- bons i>. Berhard, 3 Bono.', 635. Com- pare Pevey «. Sleight, 1 Wend., 518, where it was held that the plaintifl should not be responsible for any defect in the appeal-bond, if there was one. Section 841 provides that an under- taking upon an appeal to the Court of Appeals shall be of no effect unless ac- knowledged, &c. This is undoubtedly for the benefit of the respondent, and not necessary to be averred in an ac- tion against the sureties, where the complaint shows that the appeal was had. (j) An order merely dismissing the appeal is not an affirmance of the judgment. Watson ■». Husson, 1 Z^iie**, g43. But it was held in Sutherland «. Phelps (23 111, 91), that a declaration upon an appeal-bond is sufficient, which avers that the appeal was not prose- cuted, and that the judgment appealed from was not paid, and that the judg- ment was affirmed ; and that it need not be averred that the order dismissing the COMPLAINTS. 331 On Injunction Bond 418. On an Undertaking Given on Obtaining an Injunction. {I) I. That on the day of > 18 , in an action bronght by M. N. against this plaintiiF, an injunction, issued out of this court [or, the court] was duly served (to) on this plaintiff, by which this plaintiff was enjoined from [here state hriejiy the effect of the inJunction~\. II. That upon the issuing of the said injunction in the said action, the defendants gave an undertaking required by the court [or, judge], of which the following is a copy : [copy of the undertaking]. III. That said action so commenced against this plaintiff was prosecuted and carried on, and finally decided by the court, {n) and it was thereby adjudged that the said M. IT. was not enti- tled to the said injunction. TV. That the damages sustained by this plaintiff, by reason of the said injunction, amounted to the sum of dollars, and interest thereon from the day of , which the court on that day awarded to this plaintiff, (o) Y. That no part thereof has been paid. appeal was filed in the court from It would be enough to say, " which which it was taken. this plaintiff having notice of, obeyed." {k) In an action on an undertaking A defendant who obeys an injunction, given on appeal, if the undertaking though never served therewith, is en- does not make a demand necessary, titled, after judgment in his favor, to the issue of an execution need not be claim the damages provided for in the averred. Tissot «. Darling, 9 Gal., 278. undertaking given to procure such in- (l) Where an action is brought upon junction. Cumberland Coal & Iron Co. an injunction bond, the subject of the 'B. Hoffman Steam Coal Co., 15 Abbotts' action being the damage sustained by Pr., 78. the plaintiffs in consequence of the in- (•») In an action upon an underta- 3 unction, which prevented them from king entered into on granting an in- proceeding in their business, all the junction, it is a sufficient statement of obligees may join as plaintiffs, notwith- the nature of a suit, the manner of its standing the claim of one of them is commencement, place of trial, jurisdic- diflferent in its character and amount >i(m of the court, &c., to say that an in- from that of the others. Loomis v. junclion in the suit was granted by a Brown, 16 Barb., 335. justice of a court, and that issues were (m) In an action upon an undertaking joined in the suit, and a judgment ren- given on the issue of an injunction, an dered therein. Loomis ■». Brown, 16 allegation that the injunction was serv- Barb., 825. ed imports a legal service, and is suffl- (o) A complaint in an undertaking cient on demurrer. Loomis v. Brown, to pay all damages which should be lli Barb .125. awarded by virtue of the issuing of an 332 ABBOTTS' FORMS. Actions upon Judgments. Section XIII. COMPLAINTS IN ACTIONS ON JUDGMENTS, (a) [An action cannot be brought on a judgment of this State, except on jus- tices' judgments in certain cases, until after five years from its rendition, un- less leave of court is first obtained, (b) But leave, vphen necessary, need not be alleged in pleading, (c) In pleading a judgment, or other determination of a court or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdic- tion, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading must establish on the trial the facts conferring jurisdiction, (d) In the case of foreign judgments, facts showing jurisdiction of the person must be alleged ; and if the tribunal is one that cannot be presumed tohave a general jurisdiction, it must be alleged that it has such jurisdiction, or a statute giving it special jurisdiction must be pleaded.] 419. General form .' , p. 333 430. The same, by an assignee 333 421. On a foreign judgment of a court of general jurisdiction 334 433. On a foreign judgment of a justice's court, or other inferior tribunal. . 335 injunction, the complaint must allege v. Newton, 3 Sani/y, 163 ; and the an award of such damages. Tarpey B. same opinion has been intimated here. Shillenberger, 10 GaX., 390. . HoUister «. Hollister, 10 Sow. Pr., 583 ; (a) For requisites of a complaint on McLaughlin «. Nichols, 13 Abbotts' Pr., an assessment for local improvements 344. made by a private corporation, see It may be observed that section 163, West 1). BuUskin Prairie Ditching Co., which provides in equally general 19 Ind. {Kerr), 458. For the aUega- terms, that "in pleading a private tions of a complaint to recover on an statute or a right derived therefrom, it award of fence-viewers, see Hewitt ». shall be sufficient to refer to such stat- Watkins, 11 Barb., 409. ute by its title and the day of its pas- (5) Code of Pro., § 71, and see ante, sage," &c., has not been understood as 48. This provision does not require a applying to the statutes of foreign bona-fide assignee to obtain leave to States, it being held that even the pub- sue. Tufts V. Braisted, 1 Abbotts' Pr., lie statutes of foreign States must be set 83; S. C, 4 Duer, 607; McButt v. forth. Throop d. Hatch, 3 ^65o«s' Pr., Hirsch, 4 Abbotts' Pr., 441. 33 ; Pomeroy -o. Ainsworth, 32 Barb., (c) Finch v. Carpenter, 5 Abbotts' Pr., 118. 335. In Indiana, however, it is held that (d) Code of Pro., § 161. It is held in a complaint on a judgment of a sister Ohio that this provision (§ 130 of the State may be in this short form, aUe- Ohio Code) does not apply to foreign ging it to have been duly given. Crake judgments. Memphis Medical College «. Crake, 18 Ind. {Kerr), 156. COMPLAINTS. 333 On Judgments. 419. Oeneral Form, (e) I. That on the day of , 18 , at , in the court of [or, before M. N., (/") a justice of the peace in and for the town of, &c.J, the plaintiff recovered a judgment, which was duly given (g) by said court [or, justice] against the defendant, for dollars, in an action wherein this plaintiif was plaintiff [or, defendant], and the defendant herein was de- fendant [or, plaintiff]. (A) II. That no part thereof has been paid {i) [except, &c.] 420. 77ie Same, ly an Assignee, {j ) L That on the day of , at , in the Court of [or, before M. N., a justice of the peace in and for the town of, &c.], one O. P. recovered a judgment which was duly (e) This form is suflScient in an ac- tion on the judgment of any domestic court. It is equally so on a judgment of a Circuit Court of the United States, for jurisdiction is intended of them. Bement ■». Wisner, 1 Code B., M S., 143; GrJswold v. Sedgwick, 1 Wend., 126. (/) Under section 161 of the Code, it is necessary, in pleading the determi- nation of an officer of special jurisdic- tion, to designate the officer ; an aver- ment that such determination was duly made is insufficient. Carter v. Koezley, U Aibotts' Pr., 14:7. The appropriate mode of pleading a judgment of a justice of the peace, is to allege that it was recovered "before him," not "in his court." McCarthy V. Noble, 5 W. Y. Leg. Obs., 380. (ff) This form of allegation, " retfov- ered judgment, which was duly given," is suggested by the court in Crake v. Crake, 18 Tiid. {Kerr), 156. As to how far other words may he deemed equiv- alent to " duly given," compare Willis V. Havemeyer, 5 Duer, 447; Hunt v. Dutcher, 13 How. Pr., 538. Qi) In Indiana, the record of the judgment or a transcrixrt must be set forth. Brady ii. Murphy, 19 Ind. {Kerr), 258 ; Adkius v. Hudson, Id., 302. It should not be, in this State. Harlow v. Hamilton, 6 How. Pr., 475. In Ohio, it is held that a tratoscript of a record showing the recovery of a judg- ment, is not " an instrument for the un- conditional payment of money only," under section 122 of the Code, author- ized to be made a part of the petition hy reference ; and that it will not be sufficient, as authorized under section 122, in cases of accounts, promissory notes, and hills of exchange, to give a copy of a transcript of a record, and state that there is due upon it a spe- cified sum with interest. Memphis Medical College v. Newton, 2 Handy. 163. (i) An averment that the judgment was unreversed and unsatisfied has been usual, but is unnecessary. 1 Chit. PL, 331. {j) For a complaint by an adminis- trator with the will annexed of a de- ceased judgmentcreditor who was resi- dent of ,a foreign State, see Wheeler v. Dakin, 13 How. Pr.. 53 334 ABBOTTS' FORMS. Actions OH Judgments given by said court [or, justice] against the defendant, for dollars, in an action wherein the said O. P. was plaintiff, and the defendant was defendant [or otherwise as ike case wasl- II. That thereafter [or, on the day of 5 18 ; at ], said M. N. duly assigned (7^) said judgment to this plaintiff [of which the defendant had due notice]. III. That no part thereof has been paid [except, &c.J 421 . On a Foreign Judgment of a Court of General Jurisdiction. I. That at the times hereinafter mentioned, the Circuit Court of the county of , of the State of , was a court of general jurisdiction, duly created by the laws of that State. {]) II. That on or about the day of , the plaintifl commenced an action in said court [or, if the preceding allega- tion is not inserted, in the Supreme Court of the State of ], against the defendant by the issue of summons [or other process'}, which summons was duly and personally served on the defendant [or, in which action the defendant voluntarily and duly appeared in person, or, by attorney], (ot) III. That such proceedings were thereupon had, that on the day of ,18 , in said action the plaintiff recovered judgment, which, was duly given by said court against the de- fendant, for the sum of dollars. TV. That no part thereof has been paid [except, &c.] (k) This form of allegation is sus- vens, however (17 Wend., 483), it is tained by Martin B. Kanouse, 3 Abbotts' said that Courts of Common Pleas and Pr., 330. It is not necessary to aver County Courts of other States are to be any demand of payment by the assignee, presumed of general j urisdiction. Com- or any refusal to pay by the debtor, pare, also, Frees v. Ford, 6 JT. Y. (2 Moss V. Shannon, 1 Silt, 175. Seld.), 176 ; Kundolf v. Thalheimer, 17 {I) This paragraph is only necessary Barb., 506. in the case of a court whose title indi- In pleading the judgment of a court Gates that it may be one of limited of general jurisdiction of another State, jurisdiction. In such a case it is if the defendant therein was served or better to aver that the court had a appeared, the facts upon which juris- general jurisdiction. This was held diction is founded, need not be averred, necessary in an action on the judg- Want of jurisdiction is matter of de- ment of a county Circuit Court of an- fence. Wheeler v. Raymond, 8 Coio., other State, in McLaughlin v. Nichols, 311. 13 Abbotts' Pr., 344. In Foot v. Ste- (m) Alleging that he was personally COMPLAINTS. 335 On Judgments. 422. On a Foreign Judgment of a Justices Oov/rt, or other Inferior Tribunal. I. That at the times hereinafter mentioned, M. N. was a justice of the peace, in and for the town of , in the county of , and State of , having authority under and by virtue of an act of said State, entitled , passed on the . day of ,18 , to hold court, and having jurisdic- tion as such over actions of [_state the jurisdiction sujjioiently to niahe it appear that it included the cause in question]. («.) II. That on the day of , 18 , at , aforesaid, the plaintiff commenced an action against the defendant before the said justice, by summons [or other process] duly issued by said justice on that day, for the recovery of [here designate the cause of action sufficiently to show it to he within the jurisdic- tion], which summons was duly and personally served on the defendant [or, in which action the defendant voluntarily and duly appeared], (o) III. That such proceedings were thereupon had, that on the duly notified, but not saying of what, wltliout setting out the proceedings, to or that he had personal notice of the say " such proceedings were had," that commencement of the suit, without plaintiff recovered, &c. Turner «. Rohy, saying from whom, is bad. Long v. 3 Jf. T. (3 Oomst.), 193. Long, 1 mil, 597. In declaring upon a domestic judg- (re) In the case of a declaration on a ment rendered by a justice in a suit foreign judgment of a subordinate tri- commenced by long summons, it was bunal of limited jurisdiction, the au- not necessary to allege that the defend- thority under which the judgment was ant was a resident of the county ; and rendered should be set forth. Stiles if it was alleged that the summons was V. Stewart, 12 Wend., 473. A general duly issued and personally served by «■ allegation that the justice had jurisdic- constable, it was not necessary to add tion is not enough. The statute giving that it was returned to the justice ; nor jurisdiction should be pleaded. Shel- that the constable made a return there- don ». Hopkins, 7 Wend., 435 ; Stiles v. on ; nor that any time of day was speci- Stewart, 12 Id., 473. A judgment fied in the process ; nor that a court was against the plaintiff for costs of a non- held at the time and place specified, suit only, is an exception to this rule. Barnes i). Harris, 4 If. T. (4 Gomst.), Turner v. Roby, 3 iV. T. (3 Oomst.), 374 ; 8 Barh., 603. 193. (») To show that jurisdiction over The above allegation must of course the person had been acquired, it is be varied according to the statutes necessary to aver, either that the partj which give jurisdiction to the justice. appeared, or that process was sued out After stating the facts on which and duly served on him. Cornell v jurisdiction depends, it is sufficient, Barnes, 7 Sill, 35. sae ABBOTTS' FORMS. Actions for Unliquidated Damages for Breach of Contract. daj of 18 , in said action the plaintiff recovered judgment, which was duly given by said justice against the de- fendant, for the sum of dollars, to wit, dollars for said debt [or, damages], and dollars costs, {p) IV. That no part thereof has been paid [except, &c.] Section XIV. COMPLAINTS IN ACTIONS FOB UNLIQUIDATED DAMAGES FOE BKEACHES OF CONTEACTS. [In an action for breaoli of contract, the engagement which the defendant has violated should be stated, and if it was an alternative or a conditional engagement, or qualified by any exception, this should appear in the plead- ing, (a) And a suflioient consideration must be alleged, if not implied from the nature of the instrument. (J) If the contract was in writing, the pleader may set forth its substance or legal effect, in his own words ; (c) but the better course generally is to set forth a copy of it; or, if it is very long, to annex a copy, and refer to it as a part of the complaint, (d) ip) This should be inserted, if it would not otherwise appear that the amount of the debt did not exceed the ' justice's jurisdiction. See Smith v. Mumford, 9 Cow., 36. (a) Hatch v. Adams, 8 Cow., 35 ; Stone V. Knowlton, 3 Wend., 374; Lutweller v. LinneU, 13 Bari., 512 ; Roget ii. Meritt, 3 Oal, 117. (6) See ante, 316, note («) ; Ross v. Sagdbeer, 31 Wend., 166. In alleging a previous contract merely by way of inducement, it is enough if the names of the parties, the amount, and the subject-matter are stated, with- out setting forth the instrument. Nellis 1). De Forest, WBarh., 61. When a contract, whether statutory or otherwise, is the mere subject-matter of a new engagement, it is not neces- »;ary in an action to enforce such new engagement, and not for the purpose of carrying out tlie provisions of the origi- nal contract, to set forth in the com- plaint that the requisite steps were taken to make such original contract effectual. Both parties by making it the subject of the new engagement im- pliedly admit its validity. Horner ■». Wood, 15 Bari., 871 ; Shaw v. Tobias; 3 if. Y. (3 Oomst), 188. . (c) Setting forth a contract, without stating any time for performance or payment, is sufficient on demurrer, for the law imports from such a contract that the defendant should have a rea- sonable time within which to perform ; and was entitled to payment on per- formance. Fickett V. Brice, 33 Sow. Pr., 194. But as it might be obnoxious to a motion, it would be better, in an action on such a contract, to allege the legal effect, which would show that the ambiguity was not an omission by the pleader. (d) Fairbanks ■». Bloomfield, 2 Buer, 349. In Ohio it is said to be the bet- ter practice to insert the instrument in the' pleading, rather than to annex and refer to it. Swan on PI., 304. COlYiPLAINTS. 337 General Principles of Pleading Contracts. If the instrument contains provisions which are not material to the cause of action, it is better to omit such parts. Thus, in an action on one of the covenants for title in a deed of real property, the pleading need not be in- cumbered with -a copy of the whole instrument. It is enough to allege the conveyance, describing it, and showing a consideration for the covenant, and then to set forth a copy of the covenant, (e) Where a contract is alleged to have been made, averring a delivery is un- necessary in general : {/) and this rule applies to the case of deeds ; though if the time of delivery, as distinguished from the date, is material, it is proper to aver it. (. Jewett, UN.Y. (1 Kern), 453 ; and Smith «. Wright, 1 AUbotW Pr., 343, there was no aUega^ tion of performance. The allegation of readiness, &c., is therefore inserted as a separate aver- ment, in the following forms, rather in deference to the doubt that might be raised by its omission, than because it ought to be held necessary. (A) Under an agreement for the pur- chase of a thing at a future day named, and at a specified price, the transfer and the payment of the price are de- pendent acts, and the vendor cannot recover witliout averring and proving a tender or offer to sell and transfer at the time fixed. A count averring that he was ready and willing to sell and transfer at the time named, is bad on demurrer. Lester u. Jewett, t\ N. Y. (1 Kern), 453 ; reversing S. C, 12 Barb., 503; Smith «. Wright, 1 Ah- iotts' Pr., 243 ; 5 Sandf., 113. Com- pare Coonley «. Anderson, 1 Hill, 519. Where the power to perform the covenant, on the part of the plaintiff, depends on acts previously to be done on the part of the defendant, — e. g., plaintiff's executing a purchase-money mortgage, — it is unnecessary for the plaintiff to aver a tender and refusal, but an averment of a readiness to per- form is sufficient. West d. Emmons, 5 Johns., 179. As to what informal or indirect averments of a tender are suf- ficient, see Miller ii. Drake, 1 Cai., 45 ; North «. Pepper, 31 Wend., 636. {I) Baldwin ». Muim, 3 Wend., 399 Otherwise, however, of a waiver of tender, which is an act in pais. Holmes v. Holmes, 9 N. Y. (5 Seld.), 535 ; 13 Barb., 137. (m) Schenck v. Najior, 3 Duer, 675 ■ COMPLAINTS. 339 General Principles of Pleading Breaches. In general, where the covenant describes a specific act, it is sufficient to aver a breach in the words of the covenant ; but where it provides for a number of acts by one generic phrase, it will not be sufiicient to use the words of the covenant, but the particular acts constituting the breaches must be set forth.] (m) Article I. — Covknahts p. 340 II. — Employment 353 III. — Indemnity 363 IV. — Promise of mabkiaqe 369 V. — Sales of personal property 371 VI. — Sales of real property 378 Vn.— W^arranties , 384 Van Schaick v. Winne, 16 Barb., 89. A general allegation in the complaint that certain acts alleged to have been done, wers done " in violation of the de- fendant's agreement," is a mere aver- ment of a conclusion of law, and is bad upon demurrer. The complaint should show facts from which it appears that the defendant has broken the covenant. Schenck u. Naylor, 2 Duer, 675. If the pleader alleges generally that the adverse party had failed to fulfil the contract, and also sets forth a num- ber of instances of disregard of its terms, he is not on the trial confined to the particular defaults stated, but may prove any defaults under his general allegation. If this clause was too gen- eral, the remedy was by motion. Trim- ble -0. Stilwell, 4 B. D. Smith, 513. (ra) On a contract to sell goods for not less than a certain sum, and to ac- count, a count averring that the de- fendant sold them for a less sum, and did not account, is good in substance. A count not averring a sale, but only a refusal to account, is bad ; for until sale there is no breach. Wolfe v. Luyster, 1 SaU, 146. Under a covenant to sell land, using diligence to do so to the best advan- tage, and pay over the proceeds, assign- ing as a breach that defendant did not geU for the best price that could be obtained, is bad, as being tmcertain whether the breach be for not selling, or for selling at other than the best price. Brown v. Stebbina, 4 Sill, 154. The plaintiff should aver enough to show, with reasonable certainty, that he has been damaged. Thus, on an agree- ment to buy a farm of a specified num- ber of acres at a specified sum per acre, but excepting a road running through it, and to bid upon it up to that amount on a judicial sale, a declaration for not bidding must state the quantity of land in the road, so as to show that plaintiff was damnified. Gould v. Allen, 1 Wend., 183. So where the parties were engaged in a joint enterprise, each to attend to a distinct part, and they were to settle monthly and divide the moneys received ; a declaration setting forth the agreement, and alleging that the defendant had received money, to a specified amount, and had not, although requested so to do by the plaintiffs, paid to them the balance remaining in his hands belonging to them, was held bad in substance, for want of an aver- ment of a definite balance in the de- fendant's hands ; or that he had re- fused to settle with the plaintiffs to ascertain the balance. Pattison v. Blanchard, 5 iV. Y. (1 Seld.), 186. See, also, as to assigning breaches, p. 367, ante. 340 ABBOTTS' FORMS. Actions for Unliquidated Damages for Breach of Contract. Article I. — Covenants. 433. On a covenant against incumbrances on real property p. 340 424. The same, where the conveyance was expressed to he subject to a specified incumbrance 343 4S5. On a covenant for quiet enjoyment 342 426. On a covenant of seizin, or of power to convey 348 427. On a covenant of warranty ; — for failure of title 344 428. The same ; — for deficiency in quantity 345 429. On a grantee's covenant to build 346 430. On a covenant against nuisances ; the covenant being in a deed exe- cuted only by the grantor 346 431. On a continuing covenant to maintain a fence 347 432. Against tenant, for breach of covenant to keep premises in repair 348 433. Against landlord, for breach of covenant to keep premises in repair, with special damage 349 434. Against landlord, for breach of covenant for quiet possession 350 435. Against landlord, for breach of agreement to complete demised premi- ses well 351 423. On Covenant against Incumbra/nces on Real Property, {o) I. That on the day of > 18 , the defendant [and M., liis wife], for a valuable consideration, by deed, conveyed to the plaintiff in fee simple, a farm in tlie town of , coun- ty of \or otherwise briefly designate the property, and the estate therein conveyed.'] {p) II. That said deed contained a covenant on the part of the defendant, of which the following is a copy : {copy of covenant, or, whereby he covenanted, &c., stating its substance, as in Form 424, to the f]. III. That^at the time of the making and delivery of said deed the premises were not free from all incumbrance, but * on the contrary (^) were subject to' the [inchoate] right of dower of (o) For the substance of a sufficient profert, without any further descrip- complaint on a bond to discharge In- tion. 1 Saund., 333, n. 3 ; 3 Ohit. PI., cimibrances, see McCarty v. Beach, 10 193, n. i ; Dunham «. Pratt, 14 Johns., Cal., 461. 373. (p) Even at common law, it was suf- (y) Even on covenant " to free land ficieut in a declaration for a breach of from all incumbrances," the assign- a covenant, to state that the defendant ment of breach should show an incum- conveyed to the plaintiff certain land brance. Juliand v. Burgott, 11 Johns., or premises in the said deed particu- 6 ; Thomas v. Van Ness, 4 Wend., 549. larly mentioned and specified, making Compare People ». Eussell, Id., 570. COMPLAINTS. 341 Upon Covenants for Quiet Possession. one M. N"., wife [or widow] of one O. N., the former owner of tlie premises. IV. And for a further breach the plaintiff alleges, that on the day of ,18 , one O. P. recovered a judgment in the Court, at , against the defendant, for the sum of dollars, which judgment was, on the day of , 18 , docketed in said county of [the place where the premises are situated~\, and which judgment, at the time of the execu- tion and delivery of the deed, remained unpaid and unsatisfied of record, (r) V. And for a further breach, the plaintiff alleges, that at the time of the execution and delivery of said deed the premises were subject to a tax theretofore duly assessed, charged, and levied upon the said premises by the said city of , and the officers thereof, of the sum of dollars, and which tax was then remaining due and unpaid, and was at the tiine of the delivery of said deed a lien and incumbrance by law upon the said premises. VI. That by reason thereof this plaintiff was obliged to pay, (s) and did, on the day of , 18 , pay the sum of dollars in extinguishing the right of dower [or, the lien of the j udgment, or, the tax, or all of them] aforesaid, {t) (r) Allegations in a complaint that divers such judgments which defend- certais persons recovered judgments ant had been obliged to pay ; this no- against the owner, which judgments tice was sufficient to let in proof of any were liens and incumbrances upon the such judgment, &c., though no judg- said lot or parcel of land, at the time ment was specified or described in the of the conveyance thereof as aforesaid, notice, for under such a covenant plain- should be considered on the trial as tiff" could not be supposed to be sur- embracing the fact of the docketing of prised. Chamberlain v. Gorham, 30 the judgment and its legal effect ; and Johns., 746 ; reversing S. C, Id., 144. a motion to dismiss the complaint for (s) Compulsion by suit is not neces- want of aji express statement of that sary. Prescott v. Trueman, 4 Mass., fact, should be denied. Cady v. Allen, 637. 33 Bwri., 388. {t) If the plaintiff has not paid off or So, also, before the Code, it was held bought in the incumbrance, he can re- that in an action on a note given for cf>ver only nominal damages. See De- the price of land, where defendant gave lavergne v. Norris, 7 Johns., 358 ; Hall notice that plaintiff, on conveying, cov- v. Dean, 13 Id., 105 ; Stanard v. El- enanted to deduct from the note, judg- dridge, 16 Id., 254. There is an ex- ments outstanding against him that ception in the case of a covenantee who should be a lien upon the land, and bought for the purpose of a resale, the , paid by defendant ; and that there were covenantor having had notice of this 342 ABBOTTS' FORMS. Actions for Breach of Contract — Covenants for Title 424. The Same, where the Con/oeyance was Expressed to he Subject to a Specified Incumhrance. I. [^As in preceding form.] II. That by said deed the premises conveyed were described as being subject, nevertheless, to the payment of a certain mortgage [or other incumbrance, describing it by date, name of parties, amount, and the place of record, as in the deed], and no other grants, titles, charges, estates, judgments, taxes, assess- ments, or incumbrances were mentioned or specified in said deed, as existing upon, or affecting, or incumbering said premi- ses or the title thereto. III. That said deed contained a covenant on the part of the doferidant, by which he, for himself, his heirs, executors, and administrators, covenanted and agreed to and witli the plain- tiff, his heirs and assigns, that the said premises then were free, clear, discharged, and unincumbered of and from all other and former grants, titles, charges, estates, judgments, taxes, assess- ments, and incumbrances of what nature or kind soever,')' ex- cept as above ; meaning, except the mortgage aforementioned \or set forth a copy cf the covenant, as in preceding, form]. IV. That at the time of the making and delivery of the said deed, the premises were not free from all incumbrances other than the mortgage therein excepted, but [continue as in pre- ceding form, from the *]. 425. On a Covenant for Quiet Enjoyment. I. That on the day of i 18 , the defendant [and M., his wife], for a valuable consideration, by deed, conveyed to the plaintiff in fee simple, a farm in the town of , county of \or otherwise briefi/y designate the property and the estate therein conveyed]. II. That said deed contained a covenant on the part of the defendant, of which the following is a copy : [copy of covenant, intention at the time of the sale. Bach- covenantee has paid off the incum- elder ■». Sturgis, 3 Gush-., 301. In such brance, the expenditure is a special case those facts, and the diminished damage, and should be specially aver- value of the estate under the incum- red. De Forest v. Leete, 16 Johns., Drance, should be alleged. Where the 123. COMPLAINTS. 343 On Covenants of Seizin and Power to Convey. or, whereby he covenanted, &c., stating its suistance as in the preceding form, to the f]. III. That the plaintiff has not been permitted peaceably to occupy and enjoy said premises, or to receive the rents and profits thereof ; but on the contrary, on the day of , 18 , one M. N., who at the time of making said deed, and continually from thence, until the time of the eviction herein- after mentioned, was the lawful owner [or, lawfully entitled to possession] of said premises, entered into the same, and ejected and removed the plaintiff by due process of law, from the pos- session and occupation of the same [or if only apart, designate what part], with the appurtenances, and has ever since kept him out of the same, {u) lY. That by reason thereof the plaintiff has not only lost said [part of the] premises, but also the sum of dollars, by him laid out and expended in and upon the said premises in repairing and improving the same, and has also been obliged to pay the sum of dollars costs and charges sustained by the said M. N. in prosecuting his action for the recovery there- of, and the sum of dollars, for his own costs, charges, and counsel-fees in defending said action, {v) 426. On a Covenant of Seizin, or of Power to Convey, {w) I. That on the day of > 18 , the defendant [and M., his wife], for a valuable consideration, by deed, conveyed to the plaintiff in fee simple, a farm in the town of , coun- ty of [or otherwise hriefly designate the property, and the estate therein, conveyed]. II. That said deed contained a covenant on the part of the defendant, of which the following is a copy : [copy of covenant, (n) In assigning breaches on the due process of law, and evicted tlie covenants of seizin, and of good right plaintiff, is sufficient. Rickert o. Snyder, to convey, it is sufficient to negative 9 Wend., 416. the words of the covenant; but the {v) For other allegations of special covenants for quiet enjoyment, and of damage, see Forms 434 and 444. general warranty, require the speci- (m) This form is supported by Bickert fication of an eviction by paramount ■». Snyder, 9 Wend., 416 ; 4 Kent's Com., legal title. Alleging that A. having 479. superior title at the time of the execu- It is enough to aver the breach in tion of the deed, entered by virtue of the words of the covenant. 344 ABBOTTS' FORMS. Actions for Breach of Contract — Covenants for Title. or, whereby he covenanted, &c., stating its substance. See Form 424]. III. That at the time of the execution and delivery of said deed, the defendant was not the true, lawful, and rightful owner [c&c, negativing the words of the covenant^. IV. And for a further breach of the said covenant, the plain- tiff alleges that at said time the defendant had not in himself good right, full power [c&c, negativing the words of the cove- nant'], whereby plaintiff has sustained damage dollars. 427. On a Covenant of Warranty ',^f or Failure of Title. I. That on the day of > 18 , the defendant [and M., his wife], for a valuable consideration, by deed, conveyed to the plaintiff in fee simple, a farm in the town of , coun- ty of \or otherwise briefly designate the property, and the estate therein, conveyed]. II. That said deed contained a covenant on the part of the defendant, of which the following is a copy : \cojpy of covenant of warranty, or allege its substance. See Form 424]. III. That the plaintiff afterwards lawfully entered upon' the premises, and became seized thereof accordingly, {x) IV. That the defendant has not warranted and defended the premises to the plaintiff; but, on the contrary, on the day of _ ) 18 , one M. N., who at the time of making said deed had, and ever since until the last-mentioned daj', continued to have lawful right to the premises by an elder and better title, lawfully entered the premises, and ousted the plaintiff thereof, and still lawfully holds him out of the same, {y) to his damage dollars. {x) It is said that where the cove- said deed, one M. N. was seized and nantee is held out of possession by one possessed of the premises, lawfully in actual possession under a paramount claiming the same by an elder and title at the time of the grant, the cove- tetter title, and lawfully then held nant is broken. Whitty ». Hightower, and still holds this plaintiff out of pos- 13 Smed. & M., 478. In such case omit session thereof, to his damage this allegation and add, — dollars. III. That the defendant has not war- {y) In order to sustain an action for ranted and defended the premises to the breach of a general covenant of this plaintiff; but, on the contrary, at warranty, an actual eviction or ouster the time of the making and delivery of of tlie plaintiff from the possession of COMPLAINTS. 345 On Covenant of Warranty. [Or, where the eviction was hy recovery at law,] lY. That the defendant has not warranted and defended the premises to the plaintiff; but, on the contrary, one M. N., lawfully claiming the same premises by an elder and better title, afterwards, in an action brought by him in the Court, held at , in which said M. N. was plaintiff, and this plaintiff was defend- ant [and of which action due notice was given to the said de- fendant in this action], (s) did, on the day of ,18 , recover judgment, which was duly given by said court against this plaintiff' for his seizin and possession of the premises, and afterwards and on the day of , 18 [by virtue of a writ of execution duly issued thereon], lawfully entered the premises and ousted the plaintiff thereof, and still lawfully holds him out of the same, to his damage dollars. 428. The Same J—for Deficiency in Quantity. I. That on the day of > 18 , the defendant [and M., his wife], for a valuable consideration, by deed conveyed to the plaintiff [in fee simple], a farm in the town of , county of , in said deed bounded and described as fol- lows: [copy description]. II. That said deed contained a covenant on the part of the defendant, of which the following is a copy : [copy of covenant, or, whereby he covenanted, &c., stating its substance. See Form 424]. III. That the said farm contained only sixty acres of land, instead of ninety acres, as described and warranted in said deed, to the plaintiff's damage dollars. the whole or a part of the premises by (z) If the covenantor has notice of process of law, or lawfully by para- the action, the covenantee is not bound mount title, must be averred and prov- to defend (Jackson ■». Marsh, 5 Wend., ed. Kickert v. Snyder, 9 Wend,, 416. 44) ; and the proceedings wiU be con- Averring that the plaintiff was lawfully elusive against the covenantor in this evicted from the right and title to said action. Cooper v. Watson, 10 Id., 303. premises by a paramount and lawful Verbal notice is sufficient. Miner v. title to the same, does not import an Clark, 15 Id., 435; but see Kelly v. ouster from possession. Blydenburgh Dutch Church of Schenectady, 3 Hill, V. Cotheal, 1 Du&r, 176. 105. 846 ABBOTTS' FORMS. Actions for Breacli of Contract — ^Purchaser's Covenants. 429. On a Or aniens Covenant to Build. I. That in consideration that the plaintiff would sell and con- vey to the defendant a lot of land \very iriefly designating i(\ for the sum of dollars, the defendant, on or about the day of ) 18 5 undertook and promised the plaintiff [by his covenant] that he would erect upon 'the premises a good brick dwelling-house, to be occupied as such, and that he would not erect upon the premises any building that would be a nuisance to the vicinity of the premises. II. That the plaintiff did accordingly sell and convey to the defendant said premises for said sum, but the defendant has not erected a good brick dwelling-house on the lot, to be occu- pied as such ; but, on the contrary, has suffered it to lie open and uninclosed [or, but, on the contrary, has erected, &c., sta- ting what]. III. That said lot was a part of a considerable tract of land, which the plaintiff laid out into lots and offered for sale for the purpose of the erection of dwelling-houses, requiring each pur- chaser to covenant to erect a dwelling-house, and that the erec- tion of such dwelling-house on lots sold improved the residue of the lots belonging to the plaintiff, and increased their value and their market-price. lY. That the defendant's violation of this covenant has pre- vented other lots in the vicinity from becoming valuable to the plaintiff, as they would otherwise have done, and has injurious- ly affected their condition and hindered the plaintiff from sell- ing them ; (a) to his damage dollars. 4-30. On a Covenant agavnst Nuisances / the Covenant ieing in a Deed executed only iy the Grantor. I. That on the day of , 18 , at , the plain- tiff, by his deed, conveyed to the defendant for a valuable con- sideration, as well as in consideration of the covenant herein- after mentioned, a lot of land [very briefly designating it]. II. That said deed contained a covenant on the part, of the (a) In an action on such a covenant special damages must be alleged. Bo- gert «. Burkhalter, 3 Barb., 535. COMPLAINTS. 34-7 On Covenant to Build Pence. defendant, the grantee therein, of which the following is a copy : [copy of' the covenant against nuisances']. III. That said deed was delivered by the plaintiff to the de- fendant and by him duly accepted, and he became thereby the owner of the premises, and bound by the covenant aforesaid. I"V. That the defendant has erected, or suffered or permitted to be erected, on said premises, a building occupied in a man- ner which is a nuisance to the vicinity of the premises, to wit, a building erected for, and used as a slaughter-house. Y. That the offal and blood in and carried out from said slaughter-house, and the offensive smell created, thereby, is a nuisance to the vicinity of the said premises and to the plain- tiff, whose house is adjoining ; (5) to his damage dollars. 431. On a Continuing Covenant to Maintain a Fence, (c) I. That on the day of , 18 , the plaintiff' and the defendant then being owners of lands adjoining, made an agreement in writing, under their hands and seals, and thereby the defendant covenanted to erect a fence upon the boundary line between the said lands of the plaintiff and those of the de- fendant, and to maintain the same and keep the same in con- stant repair \or, an agreement, of which a copy is hereto an- nexed, as a part of this complaint]. II. \_If there are any conditions on the part of the plaintiff they should he set forth., unless the whole agreement is annexed; and add, That tlie plaintiff duly performed all the conditions thereof on his part.] III. That the defendant did not, after the erection of said fence, maintain the same and keep it in continual repair, but, on the contrary, in the month of , 18 , he suffered the (6) In an action for the breach of the covered in a former action former usual covenant against nuisances in a damages from a breach of the same deed of lands, the plaintiff" piust show covenant, it would be proper, according what the alleged nuisance is, and how to the opinion of the court in Beck- it has injured him. Bogert v. Burk- with «. Griswold (29 Barb., 291), to halter, 3 Barb., 525. allege that he had brought an action For allegations of injury to the and recovered therein for former dam- value of adjoining property, see pre- ages, and that the damages now sued ceding form. for accrued since the commencement (c) Where the plaintifThas already re- of the former action. 348 ABBOTTS' FORMS. Actions for Breach, of Contract^Covenants in Leases. same to become dilapidated and broken down, and to remain in that condition from that time ever since [or, until the day of , 18 J. lY. That by means thereof the plaintiff suffered great dam- age by the injury to his lands and crops thereon, and his gar- den and fruit-trees, by cattle coming through said broken-down fence from the defendant's land upon his premises, and that he was compelled to repair and rebuild said fence, in order to pro- tect his land from the cattle coming from defendant's land, (d) to his damage dollars. 432. Against Tenant, for Breach of Covenant to Tceep Premises in Repair. I. That on the day of , 18 , by a lease in wri- ting then made between the plaintiff and the defendant, under their hands and seals \or, under the hand and seal of the de- fendant], the plaintiff leased to the defendant for one year from said date, at a yearly rent of , a certain dwelling- house, with stable and sheds attached, in the village of , in the county of , the property of the plaintiff, the same be- 'ing upon a part of the estate of M. N., deceased \or oirlierwise hriefiy designate the premises']. II. That said lease contained a covenant on the part of the defendant, of which the following is a copy : (e) \popy of the covenant], (f) [Or, II. That the defendant in said lease covenanted that he would, during the said term of one year, -at his own cost and expense, keep said dwelling-house and premises in good repair, (d) As to the right to recover both hiring, and set out and annex a copy these items of damage, see Beach «. of the lease. It is not sufficient merely Crain, 3 JT. T. (3 Oomst.), 86. to aver that it was the tenant's duty to (e) The declaration need not set out keep the premises in repair. In gen- the whole of the contract, but only oral, it is not enough to aVer that such such parts are necessary as relate to was defendant's duty. The facts out the breaches assigned. Sandford v. of which the duty arose should be Halsey, 3 Sen., 335. pleaded. City of Buffalo v. HoUoway, (/) Where the action is founded not 7 IT. Y. (3 Seld.), 493 ; S. C, 14 Barb., on an express covenant, but on a vio- 101 ; Congreve v. Morgan, 4 Duer, 439 ; lation of the obligation arising out of Seymour v. Maddox, 15 Q. B., 836 ; S. the relation of landlord and tenant, in C, 71 Mig. Com. L. B., 336. the absence of any covenant, state the COMPLAINTS. 349 On Covenant to Repair. and at the expiration of said term leave the said dwelling-house and premises in as good condition as he received the same, rea- sonable wear and tear excepted.] III. That the defendant entered npon the premises and occn- pied the same during the said term of one year, under said agreement ; but that he has failed to keep the said house and premises in good repair ; but, on the contrary, he has left them in such condition that the fences are broken down, the walls and the roof admit the water, and in consequence, the plaster- ing has in many places fallen down, the window-glass is broken [or other injuries], (g) and the house and premises are otherwise injured by reason of the neglect of the defendant to keep them in good repair, pursuant to his said agreement, to the damage of the plaintiff dollars. 433. Against Landlord, for Breach of Covenant to heep Premises in Sepair, with Special Damage. I. That on the day of , 18 , by a lease in wri- ting, then made between the plaintiff and the defendant, under their hands and seals [or, under the hand and seal of the de- fendant], the defendant leased to the plaintiff the premises known as N'o. street, in the cit}^ of New York, for one year from that date, at the yearly rent of dollars. II. That said lease contained a covenant on the part of de- fendant, of which the following is a copy : [copy of covenant to Tceep in repair]. ' in. That the plaintiff entered into possession of said premi- ses under said lease, and used the same as a store and ware- house for storing and selling various articles of dry-goods. lY. That the defendant has failed to perform said covenant and keep the premises in repair, and has allowed the walls and roof to become and remain leaky, by means whereof the water has entered said premises and utterly ruined a portion of his said goods, and seriously injured others, to the damage of the plaintiff dollars. (ff) Voluntary waste by the tenant should be specially stated. 350 ABBOTTS' FOEMS. Actions for Breach of Contract — Covenants in Leases. 434. Against La/ndlord^for Breach of Covenant for Quiet Possession. I. That on the day of , the plaintiff and the defendant entered into an agreement under their hands and seals [or, under the hand and seal of the defendant], where- by the plaintiff hired and the defendant leased for the term of years from said date, at a yearly rent of dollars [here hriefly designate the pre7nises\. II. That said lease contained a covenant on the part of the defendant, of which the following is a copy : [copy of covenant for quiet possession']. [Or, 11. That the defendant in said lease covenanted with the plaintiff that he should peaceably and quietly occupy and enjoy the premises aforesaid for the said term of years.J in. That the plaintiff has not been permitted peaceably to occupy and enjoy the possession of said premises ; but, on the contrary, after the commencement of the term, and on the day of > 18 , one M. N"., who was at the time of making said lease, and thereafter, until the last-mentioned day, the lawful owner (A) [or, lawfully entitled to the possession] of said premises, entered upon the same and ejected this plaintiff therefrom, and has ever since kept him out of possession of the same [or designate whatpart'], {i) to his damage -dollars. • lY. [Allege special damage if any, e. g., as follows :'] That the plaintiff, confiding in the covenant of the defendant afore- mentioned, had purchased a number of farming utensils and implements of husbandry for the cultivation of said premises, (h) The breach of the covenant for 7 Johns., 376. For other avermente quiet enjoyment is an actual disturb- of ouster, see Forms 425 and 437. ance of possession by reason of some (i) In actions for breach of covenants adverse right -existLng at the time of of v^arranty and power to convey in a the making the covenant ; not a tor- lease, the declaration must state the tious disturbance, nor a lawful dis- particulars of the plaintiff's being pre- turbance by an adverse right subse- vented from taking possession of the quently acquired. Greenby «. Wil- premises ; that is, as to the person or cocks, 3 Johns., 1 ; Grannis ». Clark, 8 persons who thus prevented Mm ; and Cow., 36 ; see cases cited, 3 Qreenl. on by what right ; and show a title at or S!o., 239, § 248. As to an entry by the before the date of the lease declared on landlord, see Sedgwick v. Hollenback, Grannis v. Clark, 8 Gow., 86. COMPLAINTS. 351 On Failure to Build, according to Agreement. and had entered upon said premises and commenced to raise grain and fruit thereon, when he M'as so ejected ; and that by reason of the defendant's failure to fulfil said covenant, said farming utensils and implements became of little or no value to him, and he was deprived of the result of his time and labors in cultivating said premises, to the damage of the plaintiff dollars. [(??', IV. That the plaintiff was thereby prevented from con- tinuing his business of a hatter at the place, and was compelled to expend dollars in removing therefrom, and lost the custom of his said business by such removal, to his damage dollars.] 435. Against Landlord, for Breach of Agreement to Complete Demised Premises Well, {j) I. That on the day of , 18 , at , the said plaintiffs entered into an agreement in writing, with the de- fendants, bearing date on that day, duly executed by the plaintiffs under the firm-name of A. B. & Co., and by the defend- ants under the firm-name of T. Z. &, Co. ; of which agreement the following is a copy : [copy agreement to complete unfinished warehouse, in the same manner as an adjoining huilding, and let it to the plaintiff , giving possession on a day named']. II. That after the making of this agreement, and on or about the day of , 18 , the defendants delivered, and the plaintiffs took possession of the first floor and basement of said building, under and in pursuance of said agreement, no lease or other agreement having been made or executed be- tween the parties ; and that the plaintiffs took possession thereof upon the faith and assurance of the defendants, and the full belief thereof, that the said premises were finished in the same manner as the store then occupied by M. N., in the same street, and in accordance with the terms of said agreement. III. That the said premises were not finished in the same manner as the store at the time of making such agreement, oc- cupied by M. IS"., in the same street, but on the contrary there- of, the roof of the building, and the gutters, water-courses, and (J) This is, in sutstance, the complaint in TuUer v. Davis, 4 Duer, 187. 352 ABBOTTS' FORMS. Actions for Breach of Contract — Employment. leaders therefrom, were constructed and finished in a different and less perfect manner than those upon that store, and an ob- Btruction was placed over the top of the leader that con- ducted the water from the said roof of the building, which ob- structed and prevented the water from passing off from said roof, whereas no such obstruction was placed over the top of the leader, or gutter, or water-course, from the roof of the store then occupied by said M. N., in the same street. TV. That in consequence thereof, the water falling upon the roofs of said building mentioned in said agreement, was ob- structed and prevented from passing off through the gutters, water-courses, or leader, and was forced back upon and ran through the skylight in the roof, and down into the said first floor and basement, and upon the silks, goods, and wares arfd merchandise of the said plaintiffs kept therein, and greatly injured the same, to the damage of the plaintiffs dollars. Article II. — Employment. 436. By an employee, discharged, or prevented from fulfilling Ms con- tract p. 353 437. By an employer, for employee's refusal to serve 353 438. By apprentice against master 354 489. By the master against the father of apprentice 854 440. For breach of contract to manufacture goods 355 441. For goods made at defendant's request, and not accepted 356 443. On a promise to manufacture wool into satinets 356 448. Against printer for not fulfilling agreement to print, and for injury to the stereotype plates ' 357 444. Against a builder for not completing his work ; with special damage by loss of rent 357 445. Against the same, for not well finishing a building 359 446. Against an attorney for negligence in prosecution of a suit 859 447. Against the same, for negligent defence 360 448. Against the same, for negligence in examining a title 360 449. Against a physician for mal-treatment 361 450. Against a surgeon, for the same 363 136. By an Mn/ployee, Discharged, or Prevented from Fulfilling his Contract. I. That on the day of , 18 , at , the plain- tiff and the defendants made an agreement in writing, of which COMPLAINTS. 353 Employer and Employed. a copy is annexed, as a part of this complaint [«?', made an agreement wliereby the plaintiff undertook to render his servi- ces to the defendant as book-keeper, or, as salesman, or, as teaclier, or, &c., as the case may he, from said date to the day of , 18 ; in consideration whereof the defendants agreed so to employ the plaintiff during said period, and to pay him for his services at the rate of dollars each montli]. II. That the plaintiff [entered upon his employment undei- said agreement, and duly discharged all the duties thereof until the day of , 18 , and he] has ever since been and still is ready and willing [and on the day of , 18 , duly pffered] to perform all the conditions of said agreement upon his part. (Jc) III. That the defendant then refused, and still refuses to allow him so to do, or to pay him therefor, to his damage dollars. (Z) 437. By Employer, for Employee'' s Refusal to Serve. I. That on the day of , 18 , at , the plaintiff and the defendant made an agreement in writing, of which a copy is annexed as a part of this complaint [or, made an agreement whereby the defendant agreed to render his (Jc) Where the plaintiff was wrong- he could not prevent. 3 Oreenl. Ev., fuUy discharged, an offer to serve need 273, § 361. A distinction, however, not be averred. WaUis v. Warren, 4 exists between these contracts for spe- Excli., 864 ; 7 Dowl. & L., 60. ciflc work and the like, and contracts (?) In general, in cases of special con- for the litre of clerks, agents, laborers, tract, where one party agrees to do a domestic servants, &c., for a year or sertain thing or to perform specific ser- shorter determinate period. In these vices for a stipulated sum of money, cases, if the person so employed is inl- and is turned away and forbidden to properly dismissed before the term of proceed by the other party, the measure service is expired, he is entitled to re- of damages is not the entire contract cover for the whole term, unless the price, but a just recompense for the defendant, on whom the burden of actual injury which the party has sus- proof on this point lies, can show, by tained. See Clark v. Marsiglia, 1 Den., way of defence, that the plaintiff was 317. And if the party can protect him- actually engaged in other profitable self from damage at a trifling expense, service during the term, or that such or by reasonable exertion, he is bound employment was offered to him and to do so. He can charge the delin- rejected. Costigan i>. Mohawk & Hnd- quent party only for such damages as son River E. E. Co., 2 Den., 609, and by reasonable endeavors and expense cases cited ; 2 Oreenl. Ev., 373, § 361 a. Vol. I.— 33 S54r ABBOTTfi' FOEMS. Actions for Breach of Contract — Employment. services to the plaintiff as book-keeper, or, as salesman, or, as a teacher, or, c&c, as the case may he, from said date to the day of , 18 ; in consideration whereof the plaintiff agreed so to employ the defendant during said period, and to pay him for his services at the rate of dollars each month]. II. That the plaintiff [has ever been ready and willing 1o employ the defendant, and on the day of > 18 , offered to do so ; and has otherwise] duly performed all the conditions thereof on his part, III. That the defendant entered npon the service of the plain- tiff on the above-mentioned day, but afterwards, on the day of ) 18 , he refused to serve the plaintiff as aforcr said ; to his damage dollars. \_0r where the defendant refused to eommence service, III. That the defendant wholly refused to perform said agreement ; to the plaintiff's damage dollars.] 438. By Apprentice against J^aster. I. That on the day of , 18 , at , the de- fendant, with his [father], M. !N"., made an indenture under his hand and seal with the plaintiff, a copy of which is annexed, as a part of this complaint. II. That the plaintiff has duly performed all the conditions thereof on his part. ' III. That the defendant has not instructed the plaintiff in the business of , according to his covenant ; to his damage dollars. ly. And for a further breach the plaiiitiff alleges that the defendant has not allowed or provided for the plaintiff, meat, drink, washing, lodging, and other necessaries according to his covenant ; to his damage dollars. 439. By the Master against the Father of Apprentice. I. That on the day of , 18 , at , M. E" \the apprentice'], with the consent of the defendant, made an in- denture under his hand and seal, a copy of which is annexed, as a part of this complaint, and marked Exhibit A. II. That at the same time and place, the defendant made an COMPLAINTS. 355 Contract to Manufacture. agreement under his hand and seal, a copy of which is sUso annexed as a part of this complaint, and marked Exhibit B. in. That the plaintiff duly performed all the conditions of said indenture and agreement on his part, (m) IV. That from and ever since the day of ; 18 , the said M. N. has wilfully absented himself from the service of the plaintiff, {n) to the damage of the plaintiff dollars. 440. J^or Breach of Contract to Mamifadure Goods, (o) I. That on the day of , 18 , at , the de- fendant promised and agreed with the plaintiff to manufacture and deliver to the plaintiff [50,000 slats and 4,500 frames for elliptic spring beds], at the price of , for which the plain- tiff agreed to pay the defendant dollars. II. That the plaintiff duly performed all the conditions of said agreement on his part. III. That defendant did manufacture, under said agreement [ frames and slats], but manufactured them in an unskilful and unworkmanlike manner, to the damage of the plaintiff dollars. (m) The allegation of performance &c. The breach alleged was, that the on the master's part is generally un- son, after having heen in the service necessary. 1 Saund., 235; Philips v. of the plaintiff, under the contract, Clift, 4 Hurl. & Nor., 173. about three years and a half, left and (») In an action upon a contract of abandoned said service, and has not apprenticeship between father and mas- returned, and that the defendant "has ter, containing the following clause : not used any, or his best endeavors to "We the undersigned bind ourselves, have the said Henry serve the said so far as it is in our power, to see the plaintiff as such apprentice," &c., "but following contract fulfilled. I, John G. the defendant has neglected and re- Young, on my part, that my son Henry fused to fulfil said agreement," &c. shall work as an apprentice to Frede- Held, on demurrer, that the allegations rick Van Dom, five years from the first that defendant had not used any en- , day of November, in the year 1846 ; deavors, and refused to do any thing, that the said Henry shall be a good, sufficiently showed a breach. Van faithful, and obedient apprentice. That Dom v. Young, 13 Bwrh., 286. he shall comply with the rules and reg- (o) This form is sustained by Fickett ulations of said Van Corn's house and «. Brioe, 23 How. Pr., 194. shop, so fer as such rules are common," 356 ABBOTTS' FORMS. Actions for Breach of Contract^Employment. • 441. For Goods Made at Defendanfs Request, and not Accepted. I. That on the day of , 18 , at , the de- fendant employed the plaintiff to make for him [designate arti- cles'], and agreed to pay for the same, up6n delivery thereof, dollars [of which contract a copy is annexed as a part of this complaint]. II. That the plaintiff made the said [articles'], and on the day of , 18 , tendered the same to the defendant, and has ever since been ready and willing to deliver them, and has otherwise duly performed all the conditions on his part. III. That the defendant has not accepted or paid for the same. 442. On a Promise to Manufacture 'Wool into Satinets, {p) I. That on, &c., at, &c., the defendant, in consideration that the plaintiff had delivered to him [fifteen bags of wool], of the value of dollars, to be manufactured into [satinets] for a reasonable compensation, to be paid him by the said plaintiff, the defendant undertook to cause the said wool to be manufac- tured into satinets, and deliver the same to the said plaintiff early in the next spring thereafter, or as soon afterwards as the same could be done by the defendant and his servants. , II. That the said [wool] was so manufactured by the said defendant, before the day of , 18 , on which day the plaintiff, at , demanded said satinets of the defendant, and then and there offered to pay him a reasonable compensa- tion for such, his services in the said manufacturing. in. That the defendant then, and ever since, refused and neglected to deliver the same, and has converted them to his own use, to the damage of the plaintiff dollars. [Or, II. That the defendant did not manufacture said wool into satinets, although a reasonable time therefor elapsed before this action, to the damage of the plaintiff dollars.] [Or, III. That the defendant so negligently and unskilfully manufactured said wool that the satinets were of no value, to the damage of the plaintiff dollars. {p) This form is from Bumph. Free., 637. See Enos d. Thomas, 4 Ibm. Pr.. 48. COMPLAINTS. 357 Against Printer for Neglect. Against Builder. 443. Against Printer for not Fuljtlling Agreement to Print, and for Injury to the Stereotype Plates, (q) First. For a first cause of action : I. That on or about the day of , 18 , the plain- tiff made a contract with the defendant, whereby the defendant agreed to furnish paper for, and to print and bind for the plain- tiff, within thirtj^ days, two thousand copies of a book of me moil's, for the price, and at the rate of $271 for each thousand copies, payable at three months from the completion of the work. II. That in accordance with, and for the purpose of fulfilling the contract, the defendant received into his possession, from the plaintiff, the stereotype' plates of the book of the value of $500. in. That after so receiving them he neglected to fulfil the contract, and afterwards refused to fulfil it, unless the plaintiff would advance thereon about $250. rV. That accordingly the plaintiff did, about the day of , 18 , advance thereon to the defendant $188, but after receiving the money defendant refused to fulfil, or to re- turn the plates or the moneys thus advanced, to the plaintiff's damage dollars. Second. For a second cause of action the plaintiff alleges: Y. That, by the gross carelessness and negligence of the de- fendant and his servants, the stereotype plates delivered to defendant, as herein before alleged, were destroyed, so that they were entirely lost to the plaintiff, and by reason of which she was put to a great additional expense in pi-inting the two thousand copies agreed on, viz., $298, and was also subjected to other expense and damage by reason of the delay in the publication, in consequence of which the sale of the book was greatly injured, to her damage dollars. 444. Against a Builder, for not Completing his WorTc ; with Special Damage hy Loss of Rent. I. That on the day of , 18 , at , the plain- tiff and the defendant entered into an agreement, under their (g-) This is, in substance, the com- 176), modified to meet the objection plaint in Badger v. Benedict (1 Hilt., raised in that case, to its stating both 414 ; affirming S. C, 4 Abbotts' Pr., as one cause of action. 358 ABBOTTS' FORMS. Actions for Breach of Contract — Employment. hands aud seals [or, the hand and seal of the defendant], of which a copy is annexed as a part of this complaint [or state 'ts legal effect, e. g., thus, whereby the defendant agreed to erect, in a substantial manner, a two-story frame house in the village of , county of , and to have the said house completed and ready for occupancy on or before the day of 5 18 , for which this plaintiff agreed to pay him dollars, payable as follows : When the foundations shuuld be laid, the sum of dollars ; when the first story should be up and the second tier of beams laid, dollars ; when the second story should be up and the third tier of beams laid, dollars ; and when the roof should be on, dollars ; and when the house should be entirely completed, tlie balance of dollars]. II. That the plaintiff duly performed all the conditions there- of on his part. III. That the defendant entered upon the performance of the work under said contract, and laid the foundations of the said house, and commenced the erection of the first story thereof ; but has neglected to finish the said building pursuant to said contract, and has left the same with the foundations laid, and the walls of the first story partly up, and that althougli the time for the completion of said building expired before this action, he refuses to complete the same, (r) lY. That the plaintiff, on the day of , IS , at , made an agreement with one M. N"., whereby he agreed to let, and said M. N. agreed to hire, the said building for one year from the , day of , at the yearly rent of dollars, of which the defendant had due notice. y. That by reason of the defendant's failure to complete tlie contract aforesaid upon his part, the plaintiff has been unable to complete said house so as to give said M. JST. occupancy thereof, and has been thereby deprived of the profits of said lease, and has been otherwise greatly injured,- to his damage dollars. (r) In an action for breach of a con- stated to show, in connection with tract to huUd according to a plan and proper averments, in what particular specifications, an averment merely neg- the contract was broken or departed ativing the performance in the words of from. So Tield, in an action against the contract is insufficient. Enough of the builder's surety. Cooney v. Wi- *he plan and specifications should be nants, 19 Wend., 504. COMPLAINTS. 359 Against Builder for Neglect. Against Attorney. 445. Against the Same^for Not Well Finishing a Building. I. That on the day of , 18 , at , this plaintiff and the defendant entered into an agreement in writ- ing, under their hands and seals, of which a copy is annexed, as a part of this complaint. II. That the plaintiff duly fulfilled all the conditions thereof on his part. III. That the defendant did not fulfil said contract on his part, but on the contrary, erected said building in so unskilful and negligent a manner [and of so unsuitable materials], that, shortly after its completion, the foundation settled, the walls cracked, the roof and walls became leaky, a considerable yjortion of the plastering fell, and the house otherwise was, and is, en- tirely untenantable, and nearly useless, through the negligent and unskilful manner of its erection, to the damage of the plaintiff dollars. 446. Against an Attorney for Negligence in Prosecution of a Suit, (s) I. That the defendant being an attorney of the Supreme Court of this State, the plaintiff in or about the month of 5 18 , retained and employed him as such, for a compensation to be paid him therefor, to prosecute and conduct an action in the Court on behalf of this plaintiff' against one M. IST., for the recovery of a large sum of money due from him to this plaintiff, and the defendant undertook to prosecute said action in a proper, skilful, and diligent manner, as the attorney of the plaintiff. II. That the defendant might, in case he had prosecuted said action with due diligence and skill, have obtained iiiial judg- ment therein for this plaintiff before the day of , 18 , yet he did not do so, but so negligently and unskilfully conducted said action, that by his negligence, delay, and want of skill, he did not obtain judgment until the day of , IB , and that meanwhile said M. N". had become insolvent; (») This form is, in substance, from 1 Humph. Free., 609. 360 ABBOTTS' FORMS. Actions for Breacli of Contract — Employment. whereby the plaintiff was hindered and deprived of the means of recovering said sum of money, to his damage dollars. 447. Against the Same, for Negligent Defence, {t) I. That the defendant being an attorney of the Supreme Court of this State, the plaintiff, in the month of , 18 , at , employed him as such, for a compensation to be paid him therefor, to defend on behalf of this plaintiff an action brought against him by M. IST., then pending in the Court for the recovery of a large sum of money due from him to this plaintiff, and the defendant undertook to defend said ac- tion in a proper, skilful, and diligent manner, as the attorney of the plaintiff. II. That such proceedings were had in such action, that it became the duty o'f the defendant as the attorney of this plain- tiff to ititerpose an answer on his behalf to the complaint there- in, on or about the day of ,18 , but he wholly neglected so to do, and by reason thereof, and through his neglect, judgment by default was obtained against the plaintiff in said action, a,nd by reason thereof this plaintiff was compelled to pay to the said M. N. dollars, the sum so recovered by him, and was put to costs and charges in his endeavor to de- fend such action, amounting to the sum of dollars, and lost the means of recovering the same back from said M. N. 448. Against the Same, for Negligence in Examining a Title. I. That at a time hereafter mentioned,- the plaintiff made a contract with one M. N". for the purchase from him of certain real property \yery Iriefly desigriate the premises], for the sum of dollars, which property said M. N. assumed to have power to convey in fee, and clear of all incumbrances. II. That the defendant being an attorney, the plaintiff at , in the month of , 18 , employed him as such to examine the title of M. K to said property, and to ascertain if the title were good, and if any incumbrances existed thereon, and to cause and procure an estate therein in fee simple and (f) Tlus form is, in substance, from 1 Humph. Free., 609. COMPLAINTS. 3(51 Against Attorney for Neglect. Against Physician. clear of all incumbrance, to be conveyed to tlie plaintiff; wliicli the defendant for compensation to be paid to him nndertook to do. III. That the defendant did not so do, but negligently and nnskilfully conducted in respect to such examination, and did not use endeavors to cause or procure a good and sufScient title in fee, clear of incumbrance to be conveyed to the plaintiff; but wrongfully advised and induced the plaintiff to pay said M. ]Sr. the sum of dollars, being said purchase-money of the premises, when in fact said M. N. had no title thereto [or, when said property was subject to incumbrances to the sum of dollars, as follows : specifying them, and the plaintiff, in order to release the premises from said incumbrances, was compelled to pay the holders thereof the sum of dollars] ; to the damage of the plaintiff dollars, (m) 449. Against a Physician for Maltreatment, {v) I. That the defendant being a physician, the plaintiff, at , in the month of , 18 , employed him as such to attend the plaintiff to cure him of a malady from which he then suffered, for compensation to be paid therefor, and for that purpose he undertook as a physician to attend and care for the plaintiff, {yd) II. The defendant then entei'ed upon such employment, but did not use due and proper care or skill in endeavoring to cure the plaintiff of the said malady, in this: the defendant did not bleed the plaintiff at an early stage of his sickness, when, if (m) In an action against an attorney («) This form is, in substance, from for negligence in examining a title. Swan's PL, 431. the declaration that there were in- (w) Since, in this country, the em- cumbranc«s upon the property, is in- ployment of a physician raises an im- sufEcient if the retainer alleged was plied promise to pay for his services, merely to examine the title and pro- the plaintiff in an action for malprao- cure a conveyance in fee simple. The tice may allege that defendant waS a declaration in such case must, more- physician, and as such was called on over, show how the property was in- by the plaintiff, and undertook as such cumbered. Elder v. Bogardus, Hill & to administer medicines, &c. This is D. Supp., 116. sufficient to raise, a duty of skill and For other allegations of incum- care on his part Peck v. Martin, 17 brances see Form 433, ante, p. 340. Ind. {Kerr), 115. 363 ABBOTTS' FORMS. Actions for Breach of Contract — Employment. the defendant had used due or proper care or skill in that be- half, he would have bled him ; and, also, in this : that the de- fendant, at a subsequent stage of the plaintiff's malady, bled the plaintiff in a profuse and immoderate extent, taking fi'om him ounces of bloody the same being an excessive and in- jurious quantity, and which the defendant, if he had used proper care and skill, ought not to have taken ; and, also, in this: the defendant, on [cfec], and on the fourteen days next following, unskilfully and negligently administered to the plain- tiff grains of mercury every six hours during that time ; the same being excessive and injurious doses, and which the defendant, if he had used due and proper care and skill, ought not to have administered to the plaintiff. III. By reason of the several premises, the plaintiff" was. in- jured in his health and constitution, suffered great pain, was weakened in body, and was obliged to, and did expend the sum of dollars, in endeavoring to be cured of the said sickness, which was prolonged and inci'eased by the said un- skilful and improper conduct of the defendant, to the damage .of the plaintiff dollars. 460. Against a Surgeon^ for the Same. I. That the defendant, being a surgeon, the plaintiff, at , in the month of 1 18 , employed him as such [to set and heal the leg of the plaintiff, which was broken], and for that purpose he undertook as a surgeon to attend and care for the plaintiff. n. That the defendant so negligently and unskilfully con- ducted himself [in setting and attempting to heal the same, as to bring on inflammation, and make it necessary to have the leg of the plaintiff amputated]. III. That by reason of the defendant's said negligence, tlie plaintiff was made sick, and kept from attending to his busi- ness for months, and was put .to great expense, and has been, and still is, disabled from attending to his said business, to the damage of the plaintiff dollars. COMPLAINTS. 363 Upon Agreements to Indemnify. Article III. — Indemnity. [In an action upon an ordinary contract of indemnity agfiinst damage, the complaint must aver actual damage. Where the plaintiff was compelled to pay by suit, this should be stated, naming the court. On an agreement to save from liability, it is not necessary to aver actual damage.] (s) 451. Surety against principal, on a promise to indemnify him against liability as surety p. 363 453. Sub-tenant against his immediate lessor 364 453. By retiring partner, on the promise of the remaining partner to in- demnify him against damage 865 454. The same, against sureties in partner's bond to indemnify against liability 366 455. Upon defendant's promise to indemnify plaintifif, if he would defend an action brought against him for money which the defendant claimed 368 •451. Surety against Principal^ on a Promise to Indemnify hiin against Liability as Surety. 1. That on the day of , 18 , at , the de- fendant, in consideration that the plaintiff would become surely for him by executing a bond [or other ohligation'], of which a copy is annexed as a part of this complaint, the defendant promised and agreed with the plaintiff that he would indemni- fy him, and save him harmless from and against all damages, costs, and charges which he might sustain by reason of his be- coming surety as aforesaid. n. That the plaintiif, confiding in such promise of the de- fendant, duly executed and delivered such bond [or other obli- gation']. ' III. That the defendant did not indemnify the plaintiff, and save him harmless from such damages, costs, and charges ; but, on the contrary, the plaintiff, by a judgment, on or about the day of , 18 , duly given against him by the Court, at , in an action brought against him upon said bond, was compelled to .pay, and on or about the day of ' , did pay dollars to , in satisfaction and (x) McQee v. Eoen, 4 Abbotts' Pr., 8. For allegations of a complaint in an For allegations in an action by a ser- action by the assignor of a contract, vant, on his employer's promise to in- upon the assignee's promise to indem- demnify him, see Allaire «. Ouland, 2 nify him against any breach of it, see Johns. Cos., 53. Holmes v. Weed, 19 Ba/rb., 138 3G4 ABBOTTS' FORMS. Actions for Breach of Contract — Indemnity discharge of said bond, and lie incurred also necessary costs and expenses ('(/) in said action and on account of said bond, to the amount of dollars, (s) IV. That the defendant had notice of the premises, but has not repaid anj part thereof to the plaintiff. 462. Sub-tena/rd against his Immediate Lessor. I. That, at the times hereinafter mentioned, the defendant held certain premises \yery 'briefly designating them] as tenant thereof to one M. N., at a yearly rent of dollars, payable by the defendant to said M. N., on tiie [state days of payment]. II. That on the day of ,18 , in consideration that the plaintiff then became the tenant to the defendant of said premises [or, of , which premises were a portion of the above-described premises], at a yearly rent of dollars, payable to him by the plaintiff, the defendant gave to the plaintiff a written agreement to indemnify him, of which the following is a copy [or state its substance, e. g., thus, and there- by promised that he would, during the continuance of the ten- ancy of the plaintiff, indemnify him and save him harmless from and against the payment of the rent payable to M. N. as aforesaid, and from and against all costs, damages, or expenses to whicli he might be put by reason of any default in the pay- ment thereof]. III. That the defendant, contrary to his promise, omitted to pay the rent which became due from him to said M. N. on the day of 5 18 , which was during the tenancy of the plaintiff under said agreement. ly. That by reason thereof said M. N., on the day of ,18 , in the Court of , commenced proceedings (y) An averment tliat plaintiff ueces- led to pay by a court of competent BarUy incurred expenses, is equivalent jurisdiction, is not enough. The court to an averment that he incurred neces- must he named. Patton «. Foote, 1 sary expenses. Glover «. Tuck, 1 Hill, Wend., 207. 66. But the objection that this is not (z) On a covenant to save harmless stated, being one which was not avail- and indemnify against claims, costs, able on general demurrer (Packard v. damages, &c., it is not enough to allege Hill, 7 Cow., 434 ; affirmed, 5 Wend., that plaintiff was forced to pay, but the 375), can only be taken now by mo- declaration must show how and in what tiori to make more definite and cer- manner. Saying that he was compel- tain. COMPLAINTS, 365 Against Partner, for Indemnity. to recover possession of said premises, which were then occu- pied by the plaintiff under said agreement, for the nun-pay- ment of said rent ; and thereby the plaintiff was obliged to pay, and on the day of 5 18 , did pay to said M. N., to the nse of the defendant, the sum of dollars, the amount of said rent, together with dollars, the costs and charges of said proceedings ; and was put to great trouble and inconve- nience, to the damage of the plaintiff dollars, (a) er^ Prom,- 453. By Metiring Partner, on the Reinaining Partn, ise to Indemnify him against Damage. I. That the plaintiff and the defendants, haviiig been part- ners in trade at , under the firm of B. & Z., on the day of , 18 , dissolved the partnership, and mutually agreed that the defendants should take and keep all the part- nership property, paj"^ all debts of the firm, and indemnify the plaintiff against all claims that might be made upon him on ac- count of any indebtedness of the said firm, and all costs and charges thence arising. II. That the plaintiff duly performed all the conditions there- of on his part. III. That the defendants have not paid all said debts nor in- demnified the plaintiff" therefrom ; but, on the contrary, on the day of 5 18 , one M. N. recovered judgment, (5) which was duly given in the Court against the plaintiff and defendants, upon a debt due from the said firm to the said M.' IST., of which debt the defendants had notice but failed to pay, (c) and on the day of > 18 , the plaintiff paid dollars in satisfaction of the same. (a) The plaintiff may sue to recover third person commenced tlie suit. Al- tlie rent paid, as for money paid to the laire 1). Ouland, 2 Johns. Gas., 52. use of the defendant. See forms, ante, (c) Where, after dissolution, one part- p. 163, &c. But where damages be- ner sues the other for brealiing his yond that are sought, they sliould he covenant to indemnify him against the specially stated as above. For allega- firm debts, and to pay them, notice oi tions of special damage, see Forms a debt, on account of which suit is 425, 434, and 444. brought, need not be averred, cspecial- (b) In an action founded on a recov- ly if it is averred that the books and ery by a third person against the plain- papers of the firm were transferred to tiff, it is unnecessary to aver how the the defendant. It is a general rule in 366 ABBOTTS' FORMS. Actions for Breacli of Contract — Indemnity. [IV^. And for a further breach the plaintiff alleges, tfec, set- ting forth any other liabilities.'] V. That the defendants have not paid the same to the plaintiff. 454. The Same, against Sureties in Partner''s Bond to Indem- nify against Liability, {d) I. That on the day of , 18 , the plaintiff and one M. K., theretofore copartners in business as plumbers, in the city of , under the firm-name of M. K. & M. G., dissolved their connection as such copartners, and thereupon entered into an agreement in vs^riting, of said date, duly executed and signed by them respectively, and delivered, whereby it was, among other things, mutually agreed that the said M. K. should retain and keep to his sole and separate use all and singular the partnership property of every name and character, whether in action or possession, and wheresoever situated ; and in con- sideration thereof, whereas the said copartnership was indebted , to sundry persons in sundry considerable sums of money, he should pay and discharge the debts so due by the said firm to the extent of doUai's from his own individual resources, and to the like extent hold the plaintiff harmless and indemni- fied, of and from and by reason of any claims or liabilities due by the said firm [or, instead of stating the substance, say, which agreement contained covenants on the part of the said M. K., of which the following is a copy : copy of covenant^. II. That the defendants, in consideration of said agreement between said M. K. and the plaintiff, and of one dollar to each of them then paid by the plaintiff, entered into an understand- ing in writing, duly executed and signed by them respectively, and delivered to the plaintiff [a copy whereof is annexed as a part of this complaint], whereby they sevei'ally undertook and bound themselves to the plaintiff for the faithful performance pleading, tliat wliere tlie matter does {d) This is, in substance, tlie com- not lie more properly in the knowledge plaint which was sustained on de- of the plaintiff than of the defendant, murrer in McGee v. Eoen, 4 Abbotts' notice need not be averred. Clough ». Pr„ 8 Hoflinan, 5 Wend., 499 COMPLAINTS. 367 Against Sureties in Partner's Indemnity. by the said. M. K. of the covenants in said agreement to be kept and performed on said M. K.'s part. III. That said M. K., under his said agreement with the plaintiff, retained and kept to his sole and separate use all the partnership property of the lirm ; but has not, pursuant thereto, paid and discharged the debts due by said iirm to the extent aforesaid ; and has failed to hold this plaintiff harmless and in- demnified to the like extent, of and from and by reason of any claim or liabilities due by the said tirm. lY. That at the time of the dissolution of the partnership, and agreement aforesaid, the said firm were indebted to the firm of L. & Co. of , for merchandise sold and delivered, in the sum of dollars, which was then due and payable ;(e) M'hich indebtedness formed a part of the dollars, debts of M. K. & M. G., and was included among such debts, to be paid by the said M. K., under his agreement aforesaid with the plaintiff; but the said M. K., although requested, would not pay L. & Co. their said demand, or any part thereof. Y. That on the day of last, an action was duly commenced by the plaintiff, in the Court of , to recover upon and by vii-tue of the aforesaid agreement, from the said M. K. the said amount with interest, then due b_7 the said M. K. & M. G. to the said firm of L. & Co., amounting to dollars, and interest thereon ; and such proceedings were there- upon had, that on the 10th day of December inst., judgment was recovered in such action [which was duly given] in favor of the plaintiff against the said M. K., for the sum of dollars, including costs; njjon which judgment execution was at once duly issued against the said M. K., and is returned wholly unsatisfied. YI. That prior to the commencement of said action, tlie plaintiff caused notice in writing to be served on the defendants respectively, as .sureties aforesaid, of his intention to commence such action to compel the payment of the indebtedness afore- said to said L. & Co., by said M. K., or for him ; but the de- fendants altogether neglected to pay attention to said notice. (e) In assigning breaches of a cove- cessary to set out the accounts so paid, nant to pay certain accounts, which therebyproducinggreatprolixity. Jones the phmitiflF had paid, &c., it is not ne- ads. Hurbaugh, 5 M. T. Leg. Obs., 19. 368 ABBOTTS' FORMS. Actions for Breach of Contract — Indemnity. YII. That the plaintiff has necessarily paid or expended, in consequence of the neglect and refusal of said M. K. to coniplj with his agreement aforesaid with the plaintiff, at different times since the said day of ,18 , in addition to the costs of said action included in said judgment, for legal costs, counsel-fees, disbursements, and for other reasonable ex- penses, divers sums of money, amounting in the aggregate to dollars, which remain due and unpaid to the plaintiff by the said M. K., who, althougli [on the day of , 18 ,J requested, refuses to make payment thereof to the plaintiff. VIII. That the defendants [although, on the ^ day of , 18 , requested,] have not paid to the plaintiff the amount of said judgment, or the legal costs, counsel-fees, dis- bursements, and expenses aforesaid. 455. TJjpon Defenddnfs Promise to Indemnify Plaintiffs '>f ^^ would Defend an Action hrought against him, for Money which the Defendant claimed. (/") I. That on or about the day of > 18 , one M. ^• deposited with the plaintiff dollars. II. That afterwards, on the day of , 18 , the plaintiff, at the request of the defendant, delivered to hira the said sum of money of the said M. N"., the defendant then claim- ing the same, and the pla,intiff not knowing to whom the same belonged. III. That the said M. N. then threatened to commence an action at law against him for the recovery of said money. IV. That afterwards, on the day of , 18 , the plaintiff, at the request of the defendant, agreed with the de- fendant that he would defend any action which the said M. IS". should commence against him for the said money ; and the de- fendant, in consideration of the premises, then promised tlie plaintiff to save him harmless from the consequences of tiie said action. V. That the said M. N". afterwards, on [cfec.J, prosecuted an action against the plaintiff in the Court of Common Pleas, of Lf) This form is from Bwan's PI., 382. complaints: 3t>9 For Breach of Promise. county, for the recovery of the said sum of money, of which the defendant then had notice. VI. That the plaintiiF, with the privity of the defendant, and to the best of his ability, defended the said action ; but the said M. ^N". in term, 18 , of said court, recovered a judgment against the plaintiff in said action, to the amount of dol- lars; and afterwards, an execution issued upon the said judg- ment, and the plaintiff, to prevent his property from being taken on said execution, was forced to pay, and on the day of , 18 , did pay the said sum of dollars, and, also, the sum of dollars for poundage and officer's fees, and other expenses upon the said writ. And the plaintiff was also, by means of the premises, put to other charges and ex- penses of his moneys, amounting to the sum of dollars, iu defending and settling the said action. Article IV. — Promise of Marriage, (jr) 456. For refusal p. 3G9 457. Marriage -with another 370 456. For Befusal. I. That on the day of , 18 , at , in con- sideration that the plaintiff, who was then unmarried, would, at the request of the defendant, marry him on request, the de- fendant promised (A) to marry the plaintiff' within a reasonable time(i) [or, on the day of ; or, on request]. {g) Although actions for breach of tinctly admitted the charge, see Buz- promise are brought almost exclusively zard i). Knapp, 12 How. Pr., 504. by women, the action lies in behalf of (i) This is commonly the tenor of the a man, for such loss, properly the sub- promise ; for a promise to marry with- ject of damages, as he may be able to out specification of time, gives the party show himself to have sustained. Har- a reasonable time. If, however, the rison «. Cage, 1 Ld. Raym., 386. promise were in fact to marry on a set (A) That a complaint might be good day, it should be so averred. So, also, on demurrer, though not on motion, if it were to marry on request. In the where, instead of averring a promise, latter case a, request must be averred it alleged a conversation in which and proved ; unless the defendant has, plaintiff taxed defendant with having by his own act, incapacitated himself made a promise, and defendant dis- from marrying, in which case it is un- VOL. I.— 34 370 ABBOTTS' FORMS. Actions for Breacli of Contract — Promise of Marriage. II. That the plaintiff, confiding in said promise, has always since remained, and now is ready and willing to marry the de- fendant. III. That the defendant refuses to marry the plaintiff, al- though a reasonable time elapsed before this action [or, al- though she, on the day of > 18 , requested him so to do],(_;') to her damage dollars, {k) 457. Marriage with Another. [I, and II., as in preceding form.'] in. That the defendant afterwards married a certain othei person, {I) to wit, one M. !N"., contrary to his said promise to the plaintiff. \_0r. III. That at the time of making said promise the de- fendant represented to the plaintiff that he was unmarried, whereas, in fact, he was then married to another person, of which fact the plaintiff had no notice, {rn) necessary. Short i>. Stone, 8 Q. B., 358 ; S. C, 50 Bng. Com. L. B., 350 ; Caines v. Smith, 15 Mees. & W., 189 ; Harrison v. Cage, 1 Ld. Baym., 386 ; Millward «. Littlewood, 1 Eng. L. & Eq. B., 408 ; and compare Lovelock i). Franklyn, 8 Q. B., 371 ; S. C, 50 Eng. Com. L. B., 371. (j) Except in the case of a promise to marry on request, the necessity of averring request is dispensed with. 1 Part, on Contr., 544 ; Turner v. Bas- kin, 2 W. Law M., 98. An allegation of fraud and intent to deceive and in- jure the plaintiff, may be struck out on motion. Leopold v. Poppenhiemer, 3 Code B., 39. (k) Damages may he recovered in these actions, not only for pecuniary loss, but also for suffering and injury to condition and prospects. 1 Pars, on Contr., 543, and cases cited, lb., note i. And it is held that Vfhere, in an action by a female for a, breach of promise to marry, it appears that the defendant's promise to marry the plain- tiff was made with a view to seduce her and then abandon her, and that the defendant, by means of the prom- ise, has seduced the plaintiff, the se- duction should be regarded as an aggravation of the breach of promise, authorizing the jury to give an in- creased verdict. Wells «. Padgett, 8 Barb., 333. Evidence of impaired health of the plaintiff is inadmissible, unless that be alleged in the complaint as special damage resulting from the breach. Bedell «. Powell, 13 Barh., 183. Loss of time and expenses incurred in preparation for marriage are grounds of damage, directly incidental to the breach of promise, but not of special damage. Smith «. Sherman, 4 Cush. (Mass.), 408. (I) An averment of marriage to an- other, dispenses with the request to marry, though the promise is so laid ; and it is not necessary to aver that the other person is still living. Short v. Stone, 8 Q. B., 358 ; S. C, 4 Eng. Com. L. B., 356. (in) A complaint alleging that the COMPLAINTS. 3 71 Against Seller of Goods for Not Delivering. Article V. — Sales of Personal Property. 458. Against seller, for not delivering p. 371 459. Allegation of part-payment, where there was no memorandum of the contract 373 460. Against seller of stock, for not delivering 378 461. Against buyer, for refusing to receive and pay for goods 374 462. The same, the contract having been made by broker 375 463. Against the same, for not delivering note for goods bought 375 464. For deficiency after resale by auction 376 465. For breach of contract to redeliver goods, or pay for them in a reason- able time 377 466. For breach of promise by purchaser of good-will, not to carry on rival trade 377 458. Against Seller, for not Delivering. 1. That on the da_y of , 18 , at , the plaintiff and the defendant entered into an agreement [in ^vri- tiug, which was subscribed by the defendant, or, by the agent of the defendant duly authorized thereto, and thereby it was mutually agreed between them, as follows :] in) that the defend- ant should sell and deliver to the plaintiff at , and on or before the day of , 18 [or, on demand, or, witliin a reasonable time, or otherwise, as the case was'], fifty barrels of flour, and that the plaintiff should pay the defendant therefor, upon the delivery of said flour, at the rate of dollars for each barrel, (o) plaintiff being unmarried and compe- the facts relied on to take the case out tent to marry, the defendant, in consid- of the Statute of Frauds, see p. 309, eration of her promise to marry him, ante. If the contract was in writing, a promised to marry her ; tliat the plain- copy may be annexed or set out, as in tiflFis still unmarried ; that the defend- Form 461. ant was married at the time of making (o) In an action for not delivering his promise and at the commencement goods, pursuant to an agreement by of the action, and that the plaintiff did which plaintiff was to deliver to the not, at the time of promising on her defendant a note of a third person to a part, know or believe that the defend- larger amount in payment, and the de. ant was married, is suiBcient. It is not feiidant to pay the plaintiff the differ- necessary to allege that the defendant ence ; — the agreement to pay the dif knew his representations to be false, ference is a material part of the con. Blattmacher v. Saal, 39 Barb., 33 ; S. C, tract, and omitting to set it forth was 7 Abbotts' Pr., 409. held a material variance at common (n) As io the necessity of averring law. Eoget v. Merritt, 3 OaL, 117 372 ABBOTTS' FORMS. Actions for Breach of Contract — Sales. l_ Where neither time nor place of delivery were fixed :'\ II. 18 , at the place ap- pointed, the plaintiff was ready to receive said flour, and pay for the same according to the agreement, of which the defend- ant had due notice; and the plaintiff otherwise has duly per- formed all the conditions thereof on his part. (p) The plaintifi" must aver an offer or tender of performance on the part of the plaintiff. Lester ii. Jewett, 11 N. T. (1 Kern), 453. And a complaint aver- ring that the plaintiff was ready to re- ceive and pay for the goods, and re- quested the defendants to deliver, is not sufficient without an averment of an offer to pay on delivery. Smith v. Wright, 1 Abbotts' Pr., 343. But where the delivery is to be at a particular place, it is sufficient to aver a readiness at the place to receive and pay. Vail V. Kice, 5 JSr. Y. (1 Seld.), 155 ; Clark v. Dales, 20 Barb., 42 ; and see Dunham «. Pettee, 8 If. T. (4 Seld.), 508. Where goods were to he delivered on request, at a certain price, a decla^ ration averring readiness to receive and to pay according to the terms of the sale, and that the defendant had notice of such readiness, but refused to deliver, was held sufficient, without any averment of request. Eawson v. Johnson, 1 East, 303 ; 1 Chit. PI., 337. (g) When one party agrees to sell and deliver goods at- a particular place, and' the other agrees to receive and •Bay for them, an averment by the pur- chaser, of a readiness and willingness to receive and pay at that place, in case he sues for a non-delivery, is essential, though omission of it is cured by ver diet. Clark v. Dales, 20 Sarb., 42. It is sufficient for plaintiff to aver that he had at all times been ready to receive them, and to pay, without say- ing that he was ready at the particular time stipulated. Porter v. Rose, 13 Johns., 309. (r) Where the buyer of goods sues for the seller's breach of contract to deliver them at a particular time and place, he must prove that he was ready and willing to pay for the goods ; but need not prove a tender on demand. Coonley v. Anderson, 1 Eill, 519 ; Vail v. Rice, 5 JSf. Y. (1 Seld.), 155; Bronson V. Wiman, 8iV. Y. (4 Seld.), 183. Com- pare Chapin v. Potter, 1 Silt., 366. So, where plaintiff's obligation de- pends on an act of the defendant to Ve done at the same time, — e. g., where plaintiff was to give his own notes on the delivery of the goods by defendant, — an averment of plaintiff's readiness and defendant's refusal is sufficient, without a tender. White v. Demilt, 3 COMPLAINTS. 373 Against Seller of Goods for Not Delivering. l^Where tender and demand are necessary to he proved under the agreement .•] (s) II. That on the day of , 18 , at , the plaintiff was ready, and duly offered to the defendant, to receive and pay for said flour pursuant to the agreement, and requested the defendant to deliver the same ; and otherwise has duly per- formed all the conditions thereof on his part. III. That the defendant refused to deliver it, to the damage of the plaintiff dollars. 459. Allegation of Part-payment where there was no Memo- randum of the Contract. I. That on the day of , 18 , at , it was mutually agreed between the plaintiff and the defendant that the defendant should sell and deliver to the plaintiff at , and on or before the day of ,18 [very iriefiy designate the thing'], and that the plaintiff sliould pay to the defendant therefor at the rate of dollars per , amounting to dollars, payable as follows : dollars at the time of making said agreement, and the residue on the delivery of the as aforesaid. II. That the plaintiff thereupon paid to the defendant the sum of dollars, in pursuance of the agreement. 460. Against Seller of 8toch.,for not Delivering. I. That on the day of , 1 8 , at , this plaintiff and the defendant entered into an agreement [in writ- ing, subscribed by the defendant, — or, by the agent of the de- fendant, duly authorized thereto, — whereby it was mutually agreed between them] that the defendant should sell and de- liver to the plaintiff at such time, within days thereafter, Sail, 405. As to the place of demand aver either that the fruit was not on where the place of delivery is not fixed, the trees, or that plaintiflf had been see Bronaon s. Qleason, 7 Barb., 473. interfered with by third persons, in (f) Where a sale was of a certain gathering it. Averment of demand share of growmg fruit, with a guaranty and refusal is not appropriate in such that it should be at plaintiflf 's disposal, a case. Dabovich v. Emeric, 7 Cal., it was held that the complaint must 200 374 ABBOTTS' FORMS. Actions for Breach of Contract — Sales. as the plaintiff should elect [or, that the defendant then sold and would at such time, within days thereafter, as the plaintiff should elect, deliver to him], shares of the capital stock of the Company, and that the plaintiff should paj' him tliere- for dollars. II. That the defendant at the time of making such contract was in the actual possession of the certificate of said shares of stock [or, was entitled in his own right to sell said shares of stock, or, was duly authorized to sell said shares of stock by some person to this plaintiff unknown, who was entitled to the same in his own right], (t) III. That the plaintiff duly performed all the conditions there- of on his part. [Cr, III. That on the day of ,18 , at ,this plaintiff duly tendered to the defendant said sum of dol- lars, and demanded of the defendant that he deliver said shai'es of stock to the plaintiff.] IV. That the defendant refused to deliver the same ; to the damage of the plaintiff dollars. 461. Against Buyer, for Refusing to Receive and Pay for Goods. I. That on the day of , 18 , at , the plaintiff and the defendant entered into an agreement in writ ing [subscribed by the defendant, or, by the agent of the de- fendant, duly authorized thereto], of which the following is a copy : [copy of the contract, or allege its effect, as in Form 458]. s II. That the plaintiff duly performed all the conditions of said contract on his part, and was, on the day of 18 \the day on which delivery was to he made], ready and willing to deliver the [goods] therein mentioned, and on said day, at ' , duly tendered the same to the defendant, (w) III. That the defendant refused to accept said goods, and to pay for them pursuant to his agreement, to the damage of the plaintiff dollars. (*) See 1 Bm Stat., 710, §6. The (m) For other allegations of readineas, statute has recently been repealed. &c., see Form' 458. Laws of 1858, 251, ch. 134. COMPLAINTS. 375 Against Buyer of Goods for not Completing Purchase. 462. The Same, the Contract having leen Made hy Broker. I. That on the day of > 18 , the plaintiffs and the defendants entered into an agreement, in writing, by the hand of M. N., a broker duly authorized to make the same, both on behalf of the plaintifi's and of the deiendants, of which the following is a copy : [copy of horoght and sold note], II. That at the time of making said contract, the defendants paid to the plaintiffs the sntn of dollars mentioned therein. III. That the plaintiffs were, at all times within said days, ready and willing to deliver the [goods] therein mentioned to the defendants, and receive the balance of the price therefor, and in all respects to comply witii the terms of said contract on their part, and that within the days mentioned in said contract, to wit, on the day of ,18 , at j tliey duly tendered the said [goods] to the defendants, and demanded payment of the balance of the price thereof. IV. That the defendants refused to receive said [goods], oi pay the balance of the price therefor, to the damage of the plaintiffs dollars. 463. Against the Same, for not Delivering Note for Goods Bought, {v) I. That on the day of , 18 , at , this plaintiff sold and delivered to the defendant, merchandise [con- sisting of various articles of hardware], of the value of dollars. II. That the defendant then and there promised to give the plaintiff therefor his negotiable promissoj-y note on that day [or, on the day of , 18 , or, on demand, or, within a i-easonable time thereafter], dated tijat day [or, dated on the day of , 18 J, for the said sum of dollars, payable in months from said date. III. That on the day of ', 18 , at , thu plaintiff duly demanded such note from the defendant, but the defendant refused [or, That although a reasonable time for the («1 In an action ipr breach of a promise an indorsement demanded of the de- to indorse a note, the declaration should fendant. Gallager v. Brunei, 6 Oow-, allege that the note was prepared, and 346. 376 ABBOTTS' POEMS. Actions for Breach of Contract — Sales. delivery of such note had elapsed before the commencement of this action, yet the defendant has neglected] to deliver such note, {to) to. the damage of the plaintiff dollars. 464. For Deficiency/ after Resale hy Auction. I. That on the day of , 18 , at , the plaintiff sold to the defendant, by auction [briefly designate the goods'], for the sum of dollars, subject to the condition that all goods not paid for, and removed by the buyer witliin days after the sale, should be resold, by auction, on his '•account, of which condition the defendant had notice. II. That the plaintiff was ready and willing to deliver the same to the defendant, on the said day, and for days thei-e- after, of which the defendant had notice, and the plaintiff has otherwise duly performed all the conditions of said sale, on his part. III. That more than days after the sale, and on or about the day of ,18 , at ,the defendant not having taken away said goods, nor paid therefor, the plaintiff resold the same by public auction for account of the defendant for dollars, pursuant to said condition, the expenses of which resale amounted to dollars. IV. That no part of the deficiency of dollars, thus aris- ing, has been paid. 465. For Breach of Contract to Redeliver Goods, or to Pay for them in a Seasonable Time, (ar) I. That on the day of , 18 , at , the plaintiff, at the request of the defendant, delivered to him (w) Where goods are sold on credit, its own judgment, postpone the coUeo- with an agreement that a specified tion of the judgment until the credit security should he given, and the pur- expires, or may vacate it, if the securi chaser afterwards fails to give the se- ty agreed on is given. And where in curity, it is held that the purchaser is such case the purchaser is a non-resi- liahle to be sued as soon as his agree- dent, the plaintiff may have an attach- ment to give security has been broken, ment against him, as a provisional If in such case judgment is obtained remedy under the Code. Ward -o. Begg, before the credit is expired, the court 18 Barb., 139. may, by virtue of its equity power over {x) If the contract is in the alterna COMPLAINTS. 37Y Against Buyer of Good-wiU, for Carrying on Rival Trade. \briefiy describe the goods], of the plaintiff, of the value of dollars, upon the condition and consideration that the defendant would purchase the same for dollars [or, at a reasonable price], or return the same to the plaintiff within a reasonable time, which the defendant then and there undertook to do. II. That the plaintiff duly performed all the conditions of said agreement on his part. III. That although a reasonable time for the defendant to ■purchase and pay for said goods, or to return the same to tlie plaintiff had elapsed before the commencement of this action, he has not done so, to the damage of the plaintiff dollars. 466. For Breach of a Promise hy Purchaser of Good-will, not to Carry on Rival Trade, {y) I. That the defendant carried on the business of , at ; and on or about the day of ,18, in con- sideration that the plaintiff would purchase from him his store and goods for the sum of dollars, and the good- will of the said business for the sum of dollars, the defendant agreed with the plaintiff that he would not at any time thereafter, by himself, or partner, or agent, or otherwise, either directly or in- directly set up or carry on the business of a , at , or at any other place within the town of M. II. That the plaintiff accordingly purchased from the de- fendant his said , for the price and at the terms aforesaid, and paid said sum of dollars for the good-will of said business. III. That the plaintiff duly performed all the conditions of said agreement on his part. lY. That the defendant (s) in violation of his agreement tive, it should be set forth, and the sufficient. Lutweller v. Linnell, 13 alternative shown. See Hatch «. Ad- Barb., 512. ams, 8 Cow., 35 ; Stone v. Knowlton, 3 (y) This form is from BuUen & L F., Wend., 374 ; People «. TUton, 13 Id., 155. 597. And where by the contract the (z) If the agreement is by two per- defendant has his option to deliver sons, covenanting jointly and severally either one of two things, an averment that they wiU not, the complaint in an of a demand of one of the two is in- action against both, must allege a 378 ABBOTTS' FORMS. Actions for Breach of Contract — ^Vendor and Purchaser. afterwards set )ip and carried on the business of , a( (a), to the damage of the plaintiff dollars. Article VI. — Sales op Real Property. 467. Purchaser against vendor p. 37f 468. The same, hoth for damages for not fulfilling agreement to convey, and for redelivery of securities for puichase-money 379 469. Averment of defendant's rescission, as an excuse for plaintiff's non performance 381 470. Against purchaser, for not fulfilling agreement to purchase 381 471. Against the same, for deficiency on resale 382 472. Averment of false representations by the defendant, vrhich prevented the plaintiff from fulfilling 383 473. By vendor, against the executor of the purchaser 383 467. Purchaser against Vendor. I. That on the day of , 18 , the defendants and the plaintiff entered into a contract in writing, subscribed by the defendants, whereby it was mutually agreed that the said defendants should .sell to the plaintiff certain [leasehold] premi- ses known as , in , for the sum of dollars, to be paid therefor by this plaintiff; that the defendants should make a good title to the said premises [clear of all incumbran- ces], and deliver a deed thereof on the day of , 18 ; and that the plaintiff should thereupon pay to the said defend- ants the said sum. II. That the plaintiff duly performed all the conditions of said contract ou his part. (5) [Or as in following form.'] breach by both. It is only vfhere they 1 Bl. & Bl., 397, note; 21 Law J. B. agree that they and each of them shall {W. 8.), Q. B., 269 ; 16 Jur., 744. not, that alleging a breach by one is (6) The rule that a vendor is not in sufficient to charge both. Lavirrence v. default, until the purchaser has de- Kidder, tO Barb., 641. manded a conveyance, and, after vrait- (a) In a declaration for breach of a ing a reasonable time for the vendor to covenant, wherein the defendant had prepare it, has again demanded it, is agreed not to carry on a certain busi- a rule of evidence merely, and the ness in any place where the plaintiff facts need not be set forth specially, shooild be engaged in the same busi- PearsoU v. Frazer, 14 Barb., 564. ness, no allegation that the defendant As to the cases in which demand had notice that the plaintiff was thus is necessary, see Bruce v. Tilson, 35 engaged, is necessary. TaUis v. TaUis, W. T., 194 COMPLAINTS. 379 Against Vendor, for Failure to Convey. III. That the defendants did not on said day of , nor have they at any other time whatsoever, given him a deed of the premises pursuant to the agreement, but refused, and wholly failed so to do, to his damage dollars. Oi\ III. That there is a mortgage npon the said property, made by to , for dollars, which was recorded in the oflSce of , on the day of ■ j 18 [or, of which the plaintiff then had notice], and which then was and still is an incumbrance on said title \or any other defect of title~\ ; and that the defendant could not, and did not make good title pursuant to his agreem'ent, to the damage of the plaintiff dollars. 468. The Same, both for Damages for Not Fulfilling Agree- ment to Convey, and for Redelivery of Securities for Pur- cJiase-money. (c) First: For a first cause ofi action. I. That on the day of , 18 , this plaintiff and the defendant entered into an agreement in wi'iting, under tlieir hands and seals, whereby tlie defendant agreed to sell to the plaintiff the farm the defendant then resided on, in the town of Hyde Park, in the county of Dutchess, and containing acres, or thereabout, for the sura of dollars per acre ; and that he would, on the 1st daj' of May then next ensuing, at the county clerk's otiice, in the town of Poughkeepsie, between the hours of eight o'clock in the morning and six in the evening, on receiving from the plaintiff the sum of dollars per acre, at his own expense execute a proper conveyance for con- veying the fee simple of said premises to this plaintiff free of all incumbrances ; and the plaintiff agreed that he would, at the time and place above-mentioned, on tlie execution of such con- veyance, pay to the defendant the sura of dollars per acre as aforesaid ; and that in said agreement the defendant acknowledged the payment by the plaintiff of $l,-000, in part- payment of said premises ; and further agreed to take a bond conditioned for the payment of six thousand dollars-, secured (c) This is, in substance, the com- Seld.), 5S5 ; affirming S. C, 13 Barb , plaint in Holmes v. Holmes, 9 iV. Y. (5 137 3S0 ABBOTTS' FORMS. Actions for Breach of Contract — Vendor and Purchaser. by a mortgage on said premises in payment of $6,000 of the ])iirchase-moiiey, said bond and mortgage to be payable in one year from said 1st day of May, and to bear interest at six per cent, per annum ; and further agreed to pay this plaintiff, on failure of performance, one thousand dollars liquidated damages. II. That on the [clay agreed^, at \tlie, place agreed\ the plain- tiff was ready and willing to fulfil the agreement on his part in all respects \or where a tender was necesmry : That on the day of , 18 , at , the plaintiff was ready and willing to fulfil the agreement on his part in all respects, and then and there offered to the defendant to accept a conveyance of the premises, and tendered to the defendant a bond and mortgage drawn and executed pursuant to the agreement, and the residue of the purchase-money in cash], and otherwise has duly performed all the conditions of said agreement on his part. III. That the defendant [refused to convey the said premises, pursuant to the agreement, and he] then could' not and cannot DOW convey a good title to the farm free of all incumbrances, but, on the contrary, the same was and still is subject to various defects and incumbrances, and in particular to a lease made by him to the trustees of the school district for the erection and use of a school-house, and to the inchoate right of dower of the wife of one V. B., who is still living ; wherefore the defendant failed to perform his agreement, {d) to the damage of the plaintiff one thousand dollars. Second. And for a second cause of action -the plaintiff al- leges : IV. That the payment of $1,000 hereinbefore stated to have been made by the plaintiff to the defendant, in pursuance of the said agreement, was made by a negotiable promissory note for that amount, made by this plaintiff, payable to the order of one W. H., and indorsed by him, which note was delivered to the defendant, and accepted by him in payment of said sum of one thousand dollars ; and still remains in his possession. (d) This averment dispenses with an concurrent condition. Holmes b. Holmes, averment of tender, where tender was 9 N. T. (5 8eld), 525 ; affirming S. C. not a condition precedent, hut only a 12 Barb., 137. COMPLAINTS. 381 Against Purchaser, for not Completing. Wherefore the plaintiff demands judgment against tlie de- fendant, 1. For the sum of one thousand dollars ; and 2. That he be required to cancel and deliver up to the plaintiff said note. 469. Averment of Defendants Rescission, as an Excuse for Plaintiff's Non-perfoTTnanoe. (e) That on the day of , 18 , and before the time for the plaintiff to perform the conditions thereof on his part, the defendant gave notice in writing to the plaintiff(_/) that he had determined not to take the land ; and the defendant aban- doned the agreement, and ever since wholly failed to perform it, to the plaintiff's damage dollars. 470. Against Purchaser, for Not Fulfilling Agreement to Purchase. I. That on the day of , 18 , at , the plaintiff and the defendant entered into an agreement in writ- ing, under their hands and seals, of which the following is a *^'^P.7 • \p'W cf i^^ contract], [Or, I. That on the day of , 18 , at , the plaintiff and defendant mutually agreed that the plaintiff should sell to the defendant, and that the defendant should purchase from the plaintiff [briefly designate the prem,ises], in the town of , county of , and State of , for dollars, payable [specify terms'], II. That on the day of , 18 , at , the plaintiff tendered [or, was ready and willing, and offered to execute] to the defendant a sufficient deed of the said pi-emises on payment of the said sum [or otherwise, according to the con- tract], and still is ready and willing to execute the same; and otherwise has duly performed all the conditions thereof on his part, {g) (e) This form is supported by North (/) An averment that one party be- V. Pepper, 31 Wend., 636. For an aver- fore the day, refused to perform, should ment that defendant made false repre- show that the refusal was addressed sentations to plaintiff to prevent him to the other. Travcr v. Halsted, 2o from being ready to perform, by reason Wend., 66. whereof plaintiff was not ready, see {g) One or both of these averments Form 473, infra. may be used according to the covenant 382 ABBOTTS' FORMS. Actions for Breacli of Contract — ^Vendor and Purchaser. III. That tlie defendant neglected to comply with the terms of the agreement on his part, and wholly failed to pay the pur- chase-money, to the damage of the plaintiff dollars. 471. Against the Same, for Deficiency on Resale. (A) I. That this plaintiff, being the owner in fee of twenty-six lots of land at Harlem, .in the twelfth ward of the city of New Fork, once part of the estate of the late C. H., put them up to sale by auction, at the Merchants' Exchange, in the city of New York, on the 25th day of May, 1852 ; and announced be- fore the commencement of the sale, as a part of the terms of sale, that ten per cent, of the purchase-money was. on the day of sale, to be paid by the purchaser to the plaintiff, G. F. T., and to the auctioneer, A. J. B., the auctioneer's fee of ten dol- lars on each avenue lot, and five dollars on each street lot ; and that if any purchaser failed to make such payments, the lots would be resold, and he be cliarged with the deficiency. II. That at the said sale, H. L. F., the defendant, bid in and became the purchaser of eight lots, four on 132d-street, and four on 133d-street, between the 5th and 6th Avenues, being the lots numbered 132, 133, 134, 135, 154, 155, 156, 157, on the map of of said sale, for the price of $471 each lot. III. That the said defendant did not, on the day of sale, or at any other time, pay ton per cent., or any part of the- price bid, or the purchase money, or auctioneer's fees, or any part thereof. IV. That in consequence of such neglect of payment, and after previous notice given to the defendant of the time and place of resale, and that he would be charged with the defi- ciency, the said lots were put up to resale, and resold at tlie price of $400 for each lot, making a deficiency of $568 upon the eight lots. of the agreement, see Beecher v. Con- (K) This is the complaint in Talmar radt, 13iV. r.(3-B'em.).108. Add aver- «. Franklin, 3 Z)«er, 395. ments of any special damage, according to the fact. COMPLAINTS. SSE Excuse for not being Ready — ^Vendor against Executor. 472. Averment of False Representations hy the Defendant, which Prevented the Plaintiff from Fulfilling, (i) That on or about the day of , 18 , and be- fore the time for performance on the part of the plaintiff .had arrived, the defendant, for the purpose of preventing the plain- tiff from being ready to receive the. said , and pay there- for, falsely and fraudulently represented to the plaintiff that he had sold said to other persons ; and that relying on said representations, and solely by reason thereof, the plaintiff did not provide the means, and was not prepared to receive and pay for the same as he otherwise would have done. 473. By Vendor, against the Executor of the Purchaser, {j) I. That on the day of , 18 . , the plaintifl and the said [testator'] entered into a contract in writing, under their respective hands, of which the following is a copy : [copy of the agreement]. II. That said [testator] died on or about the day of , 18 , leaving a last will and testament, by which he devised the said property as follows : [set forth devise]. III. That by said will he appointed the defendant his exec- utor, and by an order of the surrogate of the county of , duly made on the day of , 18 , at , said will was admitted to probate, and the defendant was then ap- pointed and now is the executor thereof. lY. That on the day of , 18 , the plaintiff offered to the defendant to convey the premises to him and the said [other devisees], and fully to perform said contract on his part, and requested the defendant to perform said contract on his part and pay the money then due thereon. Y. That the defendant then wholly refused so to do, and has not performed the contract nor paid any part of said sum, to the damage of the plaintiff dollars. (i) This form is supported by Cran- ( j) This foiTU is, in substance, taken dall V. Clark, 7 Barb., 169 ; and Clarke from the case of Brinkerhoff u. Olp, 35 e. CrandaU, 37 Id., 73. Bwrb., 37. 384 ABBOTTS' FORMS. Actions for Breacli of Contract — Warranties. Article VII. — Warranties. 474. On a warranty of tlie soundness of ahorse p. 3.':4 475. -On a warranty of the genuineness of a note 'iSo 476. On a warranty of a note which proved to be usurious by the law of another State v8C 477. On a warranty of the amount due on a judgment assigned S93 478. On a warranty of title of chattels sold 394 4:74:. On a Warranty of the Soundness of a Horse. I. That on the day of 18 , at the de- fendant, oifering to sell to the plaintiff a certain horse, war- ranted (yfc) [and frandulently represented] (^) said horse to be sound, kind, and true, and gentle and quiet in harness. II. That tiie plaintiff, relying upon said warranty and repre- (k) It is not necessary, in pleading a mere general warranty of the quality of goods sold, to state whether it was express or implied. A general aver- ment that the seller warranted the ar- ticle to be of good quality is sufficient. Proof of a warrs-nty of either kind will support such averment. Hoe !). San- born, 21 N. Y., 553. (l) The words in brackets are not necessary to the cause of action upon the warranty. No averment of knowl- edge or fraud is necessary to support that action. Case v. Boughton, 11 Wend., 106 ; Holman v. Dord, 13 Barb., 336 ; Williamson e. Allison, 3 Hast, 446. But it is weU to insert the averment, where it comports with the fact, as the evi- dence upon the trial may fail to prove a warranty, yet may disclose a fraud- ulent representation or concealment, upon which, on a complaint in the above form, plaintiff might recover for the deceit. See Robinson v. Wheeler, 25 m Y., 253. The plaintiff, it is held, may be compelled to elect on the trial between the two grounds of liability. Springsteed v. Lawson, li Abbotts' Fr.,. 328. But this case was decided on the authority of Sweet v Ingerson (12 How. Pr., 381), which was regarded as hav- ing settled that a false warranty and a fraudulent representation must bo deemed different causes of action under the Code. It is to be observed, how- ever, that in Sweet v. Ingerson the pleader alleged these as separate causes of action in different counts, and the question was, whether the pro- visions of the Code relating to joinder of actions j ustifled this, and not whether in alleging a false warranty, fraud in making it might not be alleged as a part of the same cause of action. A motion to strike out such an averment was denied in a case noticed under Form 475. In Edick ?). Crim (10 Barb., 445), it was held, that an allegation of false representation, without any allegation of warranty or promise, must be re- garded as founding the action on tort,, and would not sustain a recovery en a warranty. COMPLAINTS. 385 For False Warranty of Soundness. sentations, (to) then and there purchased said horse, and paid to the defendant therefor the sum of dollars. III. That at the time of said warranty and sale the said horse was unsound, unkind, and untrue, and restive and ungoverna- ble in harness, and had an infectious disease, and was utterly worthless (n) [or, and was worth dollars less than the defend- ant represented and warranted], and was known by the de- fendant so to be ; and that said horse still so remains, (o) [Allege special damage, if any, e. g., as follows .■] lY. That thereafter said horse infected with said disease three other horses of the plaintiff, of the value of dollars) by reason whereof one of said' horses died, and the others were rendered worthless ; and the plaintiff was put to great expense in the care of said horses and in attempting their cure, [p) Or, thus, lY. That the plaintiff relying upon the said warranty of the said defendant, afterwards attempted to use the said horse in harness, and the said horse being unsteady, restive, and ungovernable in harness, without the fault of the plaintiff, i"an away, greatly injuring and breaking the plaintiff's wagon, and greatly injuring and bruising the plaintiff, whereby the plaintiff became sick, sore, and lame, and was hindered from attending to his work, as a mason, and was put to great ex- pense in repairing his wagon and harness, and in recovei'ing from his hurts. (m) The complaint must aver, and in order to sustain an action for a the evidence show, that the plaintiff breach. It is doubted whether he has was actually misled by relying on the the right to do this. He may, without' warranty. Holman v. Dord, 13 Barb., offering to return, sue for his damages, 336 ; Oneida Manufacturing Society v. or recoup them in the seller's action Lawrence, 4 Gow., 440. for the price. Muller «. Eno, 14 N. Y, (n) The unsound condition of the (4 ^em.), 597; reversing S. C, 3 Dwer, chattel should be averred according to 421 ; Waring v. Mason, 18 Wend., 425 ; the fact. Under an averment (in an Boorman v. Jenkins, 12 Id., 566. answer) that the property was very {p) The plaintiff may recover not poor and of very little value, it was only the difference between the value held that the defendant could not of the chattel as warranted and as prove that it was worth nothing, and found to be, but also special damages was of no value. Deifendorf v. Gage, for injuries occasioned by the condi- 7 Barb. 18. tion of the chattel, as, the communi- (p) Where there is a warranty of cation of infectious diseases by an aui- quality, the buyer is not bound, on dis- mal warranted sound. Jeffrey «. Big& covering a defect, to return the goods low, 13 Wend., 518. Voi>. I.— 25 S86 ABBOTTS' FORMS. Actions for Breach of Contract — Warranties. V. That by reason of the premises this plaintiff was injured and misled, to his damage dollars. 475. On a Warranty of the Genuineness of a Note. I. That on the day of , 18 , at , the de- fendant offering to pass to the plaintiff, for a valuable considera- tion, a promissory note [describing it., — e. g., thus], for the sum of dollars, made by one M. N., payable to his own order, and indorsed by him, which note bore date the day of ,18 , and was payable days from date [o?', a promissory note, of which the following is a copy : copy of the wofe],then and there warranted [and fraudulently represented], the said note to have been in truth made by the said M. N. II. That the plaintiff, relying upon said warranty, purchased said note of the defendant, and paid him therefor the sum of dollars. III. That in truth said note was not made by said M. N., but his name was forged thereto. TV. That by reason of the premises the plaintiff was injured and misled, to his damage dollars. 476. On a Warranty of a Note which Proved to he Usurious hy the Law of Another State, (q) I. That during the years 1857 and 1S58, one M. N., resided at D., in the State of Iowa, and was at that place engaged in the business of a banker, and as dealer in land. That some time in the month of , 1857, at S., in the State of New York, said M. JST. applied to the defendant, and requested tlie defend- ant to loan him two thousand dollars for one j'ear, and it was then and there corruptly, usuriously, and contrary to the statute, agreed by and between said M. N. and the defendant, that the defendant sliould loan to said M. N. the sum of twe (q) This is, in substance, the form but the first line of paragraph II., the used in the case of Fake v. Smith, whole of paragraphs IV., VI., IX., X., which was sustained at special term, XII., XIV., and the allegations desig- Supreme Court, Otsego county, June, nated by brackets in paragraphs I., V., 1863, against a motion to strike out VII., and VIII., it being held that these many of the special allegations, viz., all were proper averments. COMPLAINTS. 387 For False Warranty of Usurious Note. thousand dollars for the term of one year, for interest at seven per cent, per annum ; upon condition, however, and with the [understanding and] agreement between said M. N.- and the defendant, that said M. IST. should, as he therein and thereby promised he would, transport the said sum of $2,000 to his said place of business, and thereupon reloan the same in said State of Iowa for interest of fort}' per cent, per annum, and that at the end of said year, said M. N"., after repaying the said $2,000 and interest at seven per cent, per annum in the State of New York, should divide with, account for, and pay over to the de- fendant one-half of the net proceeds of said loans in the State of Iowa, to wit: one-half of the sum of thirty-three per cent, upon two thousand dollars, amounting to the sum of three hun- dred and thirty dollars ; and it was then and there illegally, corruptly, and usuriously agreed between the defendant and said M. N"., that the defendant should have and receive from said M. 'N., and that he should pay for said loan, or the for- bearance of said $2,000 in JSTew York, more than seven per cent, per aimum, to wit: seven per cent, per annum, and the furtlier sum of one-lialf of the net proceeds of such new loans thereof to be made in the State of Iowa, to wit, sixteen and one- half per cent, per annum, amounting as aforesaid to the sum of $330. II. That said agreement was illegal, usurious, and void, and every loan of money in pursuance thereof to be made by said M. N., in Iowa, at and for the yearly rate of forty per cent., or at any greater sum or rate of interest than ten per cent, per annum, then was and ever since has been expressly prohibited by the laws and statutes of said State of Iowa, (r) That six per cent, or six dollars for the loan and use of one hundred d-ollars for one year is the legal rate of interest prescribed by the laws (r) To plead that a contract is void by v. Briggs, 4 Iowa, 464 ; Walker v. Max- foreign usury laws, the laws should well, 1 Mass., 104 ; Throop v. Hatch, 8 be stated ; and the facts which render Abbotts' Pr., 23 ; and see Andrews ■». the contract void according to them Herriot, 4 Cow., 510, note. should be alleged. Curtis v. Masten, Pleading foreign statutes by l.hcir 11 Paige, 15. titles and dates, or statement of their The law of another State must be general provisions and requirements, is pleaded as a fact. Ruse v. Mutual insufficient. Carey v. Cincinnati, &c., Benefit Ins. Co., 33 If. T., 516 ; Bean R. R. Co., 5 Clarke {Iowa:}, 357. 588 ABBOTTS' FORMS. Actions for Breach of Contract — Warranties. and statutes of Iowa ; but it is provided and declared by said laws and statutes that the parties to any agreement for the loan of money in Iowa may expressly contract together for a higher rate of interest, not exceeding ten per cent, per annum, and that no person shall directly or indirectly receive in money, goods, or things in action, or in any other manner, any greater sum or valne for the loan of money, or upon contract founded upon any bargain, sale, or loan of wares, merchandise, goods, chattels, lands, and tenements, than is therein and thereby pre- scribed as aforesaid. And it is, and then was further provided by the said laws and statutes, that in case it shall be ascertained in any suit brought on any contract that a rate of interest has been contracted for greater than is thereby authorized as afore- said, either directly or indirectly in money, property, or other valuable thing, the same shall work a forfeiture of ten per cent. per annum upon the amount of such contract to the school fund of the county in which the suit is brought, and the plaintiff shall have judgment for the principal sum without either in- terest or costs, and the court in which such suit is prosecuted, shall render judgment for the amount of interest forfeited as aforesaid, against the defendant in favor of said State of Iowa, for the use of the school fund of said county, whether the said suit is contested or not; and in all cases where the unlawful in- terest is not apparent on the contract or writing, the person contracting to pay the unlawful interest shall be a competent witness to prove that the contract is usurious, and in no case where unlawful interest is contracted for shall the plaintiif have judgment for more than the principal sum, whether the interest be incorporated with the principal or not. And it is, and then was, further provided by the laws and statutes of said State of Iowa that nothing therein shall be so construed as to prevent the hona-fide assignee of any usurious contract recovering against the usurer the full amount of the consideration paid by him for such contract, less the amount of the principal money ; but the same may be recovered of sucli usurer in the proper action be- fore any court having competent jurisdiction. The plaintiff further alleges upon information and belief that the defendant then had notice of the aforesaid laws and statutes of Iowa, and that said agreement made as aforesaid between him and said M. IST., was, and any and all loans made by said M. N COMPLAINTS. 389 For False Warranty of Usurious Note. would be illegal and usurious, and could not be enforced in Iowa, (s) III. That in pursuance of the aforesaid agreement, the de- fendant did loan to said M. N. the sum of $2,000, at the Oana- joharie Bank, in this State, and thereupon in consideration of said loan, and in pursuance of the agreement aforesaid, at the re- quest of the defendant, said M. IST. at Canajoharie aforesaid, made his promissory note in writing for $2,000 and interest, payable to the order of one O. P., at said Canajoharie Bank, which was indorsed by said O. P. and the defendant, and was thereupon delivered at said Canajoharie Bank to the defendant, or to said bank. IV. That in pursuance of the agreement aforesaid, said M. N. did transport said $2,000 so loaned as aforesaid to their said place of business in Iowa, and thereafter in pursuance of the aforesaid agreement, loaned the same in various parcels and small amounts to divers persons in, and residents of Iowa, for the term of one year, at and for the rate of forty per cent, per annum interest, and which said sum of forty per cent, per annum upon the amount so loaned as aforesaid, each and every person contracting for said loans in ■ consideration thereof, promised and agreed to pay to said M. N. That said M. N. thereafter paid and satisfied the said promissory note for two thousand dollars, principal and interest thereon, at seven per cent, per annum, made, executed, and delivered by them as aforesaid, or caused the same to be paid and satisfied. V. That afterwards [and before the said $2,000, moneys so loaned by said M. N. in Iowa had become due and payable to, or were collected by said M. N.], to wit, on the 2-ith day of March, 1858, at S., in the State of New York, said M. N. at the urgent solicitation and request of the defendant, in pur- suance of the illegal, corrupt, and usurious agreement afore- said, executed and delivered to him his promissory note in writing, of which the following is a copy : [copy of ?iote], for one-half of the proceeds of said loans of said sum of $2,000, money loaned as aforesaid in Iowa, to wit, as and for one-half («) This allegation of knowledge, that of itself proves notice of its pro- though, perhaps, proper, seems un- vision. Dewitt v. Brisbane, IQI^. Y., necessary ; as when the law is proved, 508. 390 ABBOTTS' FORMS. Actions for Breach of Contract — Warranties. of thirty-three per cent, upon said sum of $2,000 [informing liim, however, at the time of the execution and delivery of said promissory note that the said loans of money in said State of Iowa were not all due, and had not been paid to or collected by said M. N., and that he might not be able to collect any interest thereon because of the illegality of suid contracts for the usu- rious loans thereof. That before said loans made in Iowa be- came due and payable, a large proportion thereof became, and still remains worthless and uncollectible, and said M. N. has been unable to collect the same, either principal or interest, and has been unable to collect any interest thereon by reason of said loans being illegal and usurious as aforesaid]. YI. That the aforesaid illegal, corrupt, and insurious conti'act so made between said M. IST. and the defendant, and the said sum of sixteen and one-half per cent, on said loan of $2,000, so illegally, corruptly, and nsuriously loaned as aforesaid, one- half the estimated proceeds of said illegal and usurious loans of said $2,000 so made in Iowa in pursuance of said usurious con- tract, was the consideration, and the only consideration, for the aforesaid promissory note for $330 and interest, given to de- fendants by said M. ]Sr..on March 24, 185S. YII. That after the said note f9r $330 and interest, given to defendants by said M. E". on March 24, 1858, became due, to wit, on or about the 18th day of May, 1859, the facts aforesaid being well known to the defendant, but unknown to the plain- tiif, the plaintiff bargained with the defendant to purchase of the defendant the last-mentioned promissory note as follows, to wit: that the plaintiff in consideration .of said $330 note should convey to said defendant, his heirs and assigns, by deeds signed and acknowledged by himself and wife, and duly delivered to said defendant, certain lands [designating ^herri], for the sum of $150, and should pay the defendant the balance of the amount of said note made March 24, 1858, by the defendant for $330, to wit, the sum of $206.55, or thereabouts, and in consideration that the plaintiff would at the request of the de- fendant buy the said note and pay him therefor as aforesaid, the defendant represented, promised, warranted, and undertook to, and with the plaintiff, that he was the lawful holder of, and had a just and valid title to the said note; and that the same was a valid and legal note, and that hfe had a good right to COMPLAINTS. 391 For False Warranty of Usurious Note. transfer it to the plaintiff, and that he had no knowledge of any facts which rendered the same invalid or illegal, and that said note was not usurious or illegal, and there was no defence there- to, and that said note was given for money lent and otlier good and valid considerations. [That at the time of said bargain and sale, the defendants did not disclose the facts aforesaid, or any of them to this plaintiff, but intentionally concealed them from him.] {t) YIII. That he confiding in and relying upon said represen- tations, undertakings, and warranty, did then buy the said $330 note of the defendant, and conveyed to him the lands and premises above mentioned, and described by deeds executed and acknowledged by himself and wife as aforesaid, and paid them the sum of $196.55 [and promised to pay tliem $10 in ad- dition] therefor, and the defendant in consideration thereof' sold, transferred, and assigned the said note to this plaintiff. IX. That afterwards and on or about, &c., he duly com- menced an action in the Supreme Court of this State against said M. ]Sr., upon the last-mentioned note, by pei-sonal service of a summons therein, and that he appeared in said action and answered therein, setting forth the aforesaid corrupt and usu- rious agreement, in pursuance of which said note was given, the consideration therefor, and the facts aforesaid. That after- wards and on the 19th day of August, 1863, the plaintiff caused to be pei-sonally served on the defendant a copy of said sum- mons, complaint, and answer, together with written notice thereof, and requiring tiie defendant to assume the prosecution of said action, and to prosecute the same to judgment, but said defendant refused to have any thing to do therewith. X. That such proceedings were thereupon had in said action, and the same was duly brought on to trial before a refeiee on the 19th day of Janitary, 1863, the defendants being subpoenaed and sworn on said trial in behalf of this plaintiff, {u) That the said referee after trial duly found and determined tlierein (t) This allegation does not sound (u) 'As to this allegation tliat defend- in fraud. 2111010. Pr., 14; 27 Barb., ants were sworn, see 13 Wend., 450; 653 ; 24 If. T., 607 ; 1 AlhotW Pr., 76 ; 13 Johns., 234 ; 2 Cow. & H. Notes, 4 ed., 3 Am. L. B., N. 8., 60S. An action 133 ; Carpenter v. Pier, 30 Verm., 81 ; for false warranty is still proper. 8 E. Walker v. Ferrin, 4 Id., 533. B. Smith. 2. 392 ABBOTTS' FORMS. Actions for Breach of Contract — ^Warranties. the facts substantially as above alleged, and the following con- clusion of law : 1. That at the time of the commencement of this action the plaintiff was the owner and holder of the note in suit, and that the same was due and unpaid. 2. That the contract or agreement between the defendant and M. N. for the loan of the $2,000 mentioned in the answer in this action, and in the above findings of fact, was a JS"ew York contract, and governed by the laws of this State, and that said contract was usurious and void. 3. That the note in suit being given in fulfilment of said usurious and void contract, is also usurious and void. 4. If the contract in question be regarded as an Iowa con- tract, and governed by the laws of that State, it is equally usurious and void so far as the note in suit is concerned. 5. Independent of the question of usury, the note in suit be- ing given on an agreement for certain profits on a loan of money, and tlie proofs showing that there had been no profits realized, the same is without consideration. 6. The plaintiff taking said note after it became due, the same is subject to the defence of want of consideration, the same as in the hands of the payees. XI. That such proceedings were thereupon had in said ac- tion, that on the Mth day of March, 1863, it was duly ad- judged and determined therein that the said M. N. (defendant in said action) recover of this plaintiff the sum of $93.30, his costs and disbursements in said action. XII. That this plaintiff afterwards, and prior to April 6, 1863, duly paid said judgment and said sum of $93.30, and caused said judgment to be duly satisfied, and cancelled of record. XIII. That prior to April 6, 1863, plaintiff necessarily paid, laid out, and expended in the prosecution of said action for attorneys and counsel-fees, disbursements, and other expenses the sum of $115.80. XIV. That on the 13th day of April, 1863, plaintiff duly served a copy of the referee's report, and of the judgment in said action on the defendant, and tendered the aforesaid promis- sory note for $330, dated March 24, 1858, to the defendant, and demanded a reconveyance of the land which he conveyed to COMPLAINTS. 393 For FaJse Warranty of Amount due on Judgment him as a part of the purchase price of said note, and repay- ment of the sum of money paid therewith, as a part of the purchase price of said note, with interest on said sum from the time of such payment, and payment of the amount of the costs and disbursements (viz., $93.30) recorded against the plaintift in said action by M. N., and the amount of plaintiff's costs, and disbursements, and counsel-fees necessarily incurred in said ac- tion, viz., dollars. XY. That said defendant refused to receive said note, or to reconvey said lots or pieces of land, or any part thereof to this plaintiff, or to pay the said sums or items so demanded, or any of them or any part thereof, {v) 477. On a Warranty 'of the Amount due or, a Judgment assigned. I. That on the day of , 18 , the defendant, for a valuable consideration, duly assigned by writing, under his hand [and seal] to this plaintiff a judgment which he had, on the day of , 18 , recovered in the Supreme Court,, county of [or, in the Court], for the sum of dollars, in a certain action wherein A. B., defendant above- named, was the plaintiff, and one M. N. was defendant. II. That said assignment contained a covenant on the part of the defendant, of which the following is a copy : [cojpy of the covenant], [or, that the defendant did therein and thereby war- rant that there was due upon said judgment, from said M. E"., the said sum of dollars, with interest thereon from the day of , 18 ]. III. That in truth, at the time of said assignment, said judgment had been paid in full [or, in part] to the defendant, and no part thereof [or, only the sum of dollars] was or now is due thereon. IV. Tliat by means of the premises this plaintiff was injured and misled, to his damage dollars. (■!)) In the complaint from which, this ment was simply for the aggregate of form is adapted, the demand of judg- money paid, and value of land, &o. 39i ABBOTTS' FORMS. Actions for Breacli of Contract — Warranties. 478. On a Warranty of Title of Chattels sold I. That on the day of , 18 , at ' , the de- fendant offering to .sell to the plaintiff for dollars, to be paid to him by this plaintiff, a certain pianoforte, warranted {w) [and fraudulently represented] {x) said pianoforte to be the property of defendant. II. That the plaintiff, relying on said warranty [and repre- sentations], purchased the same from defendant, and paid him therefor dollars. III. That in truth said pianoforte was then not the property of defendant, but belonged to one M. E"., all which defendant then knew. IV. That thereafter the said M. E", sued the plaintiff' to re- cover possession of the same ; and that the plaintiff gave the defendant due and timely notice of the commencement of said action, and required him to defend the same, or judgment would be suffered by failure to answer ; but the defendant neg- lected to defend said action, and such proceedings were after- wards had therein as that the said M. N. recovered, by legal process, possession of said pianoforte from the plaintiff, with dollars costs. Y. Tliat by I'eason of the premises this plaintiff was misled to his damage {y) dollars. («j) The presumption of law is, that sion at the time of sale, and a sale for on a sal§ of chattels the seller war- consideration and delivery to the buyer, rants his title, unless at the time he and failure of title, it need not aver the expressly disavows an intent to do so warranty, for this implied warranty is (De Freeze v. Trumper, 1 Johns., 274 ; an inference of law. Brucker «. Fro- Heermance v. Vernoy, 6 Id., 5 ; Rew ment, 6 T. B., 659 ; Yan Santv. on PL, 1). Barber, 3 Cow., 272) ; or unless the 387. chattel is out of the seller's possession {x) See note (to), supra. at the time of the sale, in which case, (!/) The measure of damages in an in the absence of fraud, the buyer action of deceit or warranty, against takes at his own risk. 3 Kejit, 5 ed., the seller, upon a failure of title, is the 478 ; McCoy v. Artcher, 8 Barb., 323 ; damages and costs recovered by the Dresser i). Ainsworth, 9 Id., 619 ; Bdick true owner against the buyer, with in- V. Crim, 10 Id., 445. But as to the terest thereon. Blasdale v. Babcock, soundness of the latter exception, see 1 Johns., 517 ; Armstrong ■». Percy, 5 Story on Gontr., § 535. Wend., 535. But where the article is If the complaint alleges that the ' replevied of the buyer, he can recover thing sold was in the seller's posses- only its value fiom the seller and not COMPLAINTS. 395 Form of Action against Agents, &c. Section XV. COMPLAINTS IN ACTIONS AGAINST AGENTS, BAILEES, ETC., FOE UNLIQUIDATED DAMAGES. [In some cases the action will be purely upon contract, for which a form will be found in the preceding sections ; and in many cases it will be simply for conversion (as in section XIX.), where actual wrong is chargeable upon the bailee, independent of the obligations arising out of the relations be- tween him and his employer, [a) A mere naked bailee, who undertakes to deliver on demand, is not liable to an action until after demand and refusal, {h) unless a loss by gross negli- gence is shown, (c) In actions for unliquidated damages, the plaintiff's general damage is usu- ally averred by concluding the statement of facts with the words, " to his damage dollars." {d) If he would recover damages which do not neces- the damages recovered against liim for its detention, nor the fees paid by him to his own attorney for defending the title. Armstrong v. Percy, supra; but compare Lewis c. Peake, 7 Taunt., 153. (a) Thus, for example, trover would not lie if a carrier had lost the goods by his mere omission. Boss v. John- ston, Burr., 2825 ; Kirkman -o. Har- graves, 1 BeliD. N. P., 425 ; Dwiglit v. Brewster, 1 PicTc., 50, 53 ; Owen v. Lewyn, 1 Ventr., 223 ; Anon., .2 SaXk., 6o.5 ; Packard ■». Getman, iWend., G13 ; Hawkins v. Hoffman, G JSiU, 586 ; but see Ostrander v. Brown, 15 Johns., 89. But it would lie if he had possession and refused to deliver, or if he had misdelivered the goods, or appropriated them to his own use ; for here is a conversion of the plaintiff's goods. De- vereux v. Barclay, 2 Barnic. & A., 703 ; Youl V. Harbottle, 1 Peake B., 49 ; Ste- venson «. Hart, 4 Bing., 483 ; Packard V. Getman, 4 Wend., 613. (&) Brown v. Cook, 9 Johns., 361 ; Phelps v. Bostwick, 23 Barb., 314. Compare Edson ■». Weston, 7 Cow., 378. (c) Beardalee v. Eichardson, 11 Wend., 25. (ti) The form of conclusion of a dec- laration sounding in damages, under the old practice was, "wherefore the plaintiff saith lie is injured, and hath sustained damage to the amount of , and therefore brings his suit." See Wentworth's Prec. A shorter form in vogue in more recent times was to conclude the averment of the breach with the words, " to his damage dollars." Omission of these words was ground of special demurrer (O'Conner ■». Deehan, 9 Irish L. R., 506 ; Paxton V. Martin, Id , 508) ; but was mere mat- ter of form. Van Santv. on PL, 361. There is good reason for deeming this general allegation of damage un necessary now. The Code does not re- quire it, and the plaintiff cannot justly be expected to swear to it. It ought to be sufficient after stating the facts, to add, "Wherefore the plaintiff de- mands judgment against the defendant for dollars, his damagi:,s." As the point has not been fully passed on in any reported case (see Harper v. Cham berlain, 11 Abbotts' Pr., 234), we insert the old allegation in deference to the usual practice. AU allegations of dam- age other than special, are dispenses! with in England. 396 ABBOTTS' FORMS. Analysis of the Section. sarily result from the act complained of, and consequently are not implied hy law, he must, in general, state the particulars thereof.] (e) I. Agents. 479. For not using diligence to sell goods p. 397 480. For carelessly selling to an insolvent 397 481. For selling for a worthless bill 397 483. For breach of instructions as to sale 398 483. Against an auctioneer, for selling below the seller's limit 399 484. Against the same, for selling on credit 399 485. Against an auctioneer or agent, for not accounting 399 486. For not properly stowing a cargo, whereby plaintiff's freight Was diminished 400 487. Against a bank, for neglecting to present a note lodged with it for collection 400 488. The same, for not giving due notice 401 n. Bailebs, in general. 489. Against a receiptor 401 490. Against bailee, for not taking care of and returning goods . . . 403 491. Against a watchmaker, for not using due care and skiU iu re- pairing 403 493. The same, for not returning the watch. 403 493. For negligence in loading a cargo 403 494. For immoderately driving a horse 404 495. For driving on a different jourdey from that agreed 404 496. Against the hirer of furniture, &c., for not taking care of the same 404 III. Carriers. 497. Against a common carrier, for loss of goods 405 498. For the same, for breach of the carrier's duty 406 499. Against a common or private carrier, on a special contract, for loss of goods 407 500. Against the same, for failure to deliver at the time agreed, — with special damage 408 501. Against carriers by water, for not regarding notice to keep dry 409 503. Averment of loss in unloading 410 503. Against a common carrier for failure to deliver in a reasona- ble time, — with special damage 411 504. Against common carrier of passengers, by steamboat, for in- juries to the person 412 505. The same, against a railroad company 413 506. The same, against the proprietor of a stage-coach 414 507. For loss of baggage 415 («) Strang v. Whitehead, 13 Wend^, 64 ; 15 How. Pr., 361 . But the omission to Slack V. Brown, IS Id., 390 ; Squier «. aver them is waived by going to trial Gould, 14 Id., 159 ; Bogert v. Burkhal- (in a justice's court in this case) with- ter, 3 5(ir5., 535; Vanderslicei). Newton, out objection. Neary v. Bostwick, 3 4 JT. r. (4 Oomst.), 130 ; Molony v. Dows, SUt., 514. t COMPLAINTS. 397 Against Agent for Negligence in Selling. IV. Innkeepers. 508. For loss of trunk, or contents p. 415 509. Against proprietor of bathing-house, for loss of pocket-book . . 416 V. Pledgees. , 510. For loss of pledge 417 511. For injury to pledge 418 VI. Warehousemen. 512. For loss of goods 418 513. For injury to goods 419 514. For refusal to deliver 419 515. For not forwarding goods according to agreement 430 I. Agents. 479. Against an Agent for not Using Diligence to Sell Goods. I. That on the day of , 18 , at , the de- fendant iindertook, with the plaintiff, as his agent, and for com- pensation to ha paid hy him, to sell for him, * goods of the plaintiff, to wit \yery hrlefly designate thent]., 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, f but unreasonably delayed so to do, and by reason thereof, the same being afterwards sold by the defend- ant for the plaintiff, produced dollars less than the same would have produced had the defendant used such due dili- gence to sell, and in selling the same; and thereby, also, the same became much wasted and deteriorated in value, and the plaintiff incurred dollars expenses in warehousing the same, to his damage dollars. 480. The Same, for Carelessly Selling to Insolvent. As in preceding form to the^, continuing: but negligently sold the said for the plaintiff to a person ia embarrassed circumstances, without receiving the price therefor, or taking security for the payment thereof; whereby the plaintiff is likely to lose the price, to his damage dollars. 481. The Same, far Selling for a Worthless Bill. I. As in Form 479, i?iseriing at the *, for cash, or an ap- i)roved bill or note at sixty days or less, and not otherwise \or according to thefaci\. 398 ABBOTTS' FORMS. Actions against Agents, Bailees, Carriers, &c. II. That the dofendant did not use due diligence in selling the same, but negligently sold the same for a bad and insuffi- cient bill of exchange, having four months to run, and which is worthless and of no value to the plaintiff [and although the same became payable before this action, is unpaid], to the dam- age of the plaintiff dollars. 482. The Same, for Breach of Instructions as to Sale, (f) I. That on the day of , 18 , at , the plain- tiff employed the defendant, for a compensation, to sell hogsheads of sugar of the value of dollars, for the plain- tiff; and that he received the same from the plaintiff for that purpose. II. That in consideration of the premises, the defendant then promised the plaintiff to use due diligence to sell, and in selling the same for the plaintiff, and in obeying the reasonable direc- tions of the plaintiff in regard to the sale thereof. III. That the plaintiff afterwards, on or about the day of ) 18 , directed the defendant to sell said sugar at the price of , and not less, in case the same could be obtained by using reasonable diligence in that behalf. lY. That said direction was a reasonable one, and the de- fendant, by using reasonable diligence, might and ought to have obtained that price for the sugar. Y. That the defendant did not use due and reasonable dili- gence in obeying said direction, and neglected to sell the said sufar according thereto, and by reason thereof, the said sugar being afterwards sold by the defendant for the plaintiff, pro- duced dollars less than' it would have produced had the defendant used such due diligence to sell, and in selling the same ; and thereby, also, the said sugar became much wasted and deteriorated in value, and the plaintiff incurred dol- lars expenses in warehousing the same to his damage dollars. (/) This form is, in substance, from Bwan'a PL, 386. COJIPLAINTS. 390 Agaiiist Auctioneer or Agent for Negligence in Sale or Accounting. 483. Against an Auctioneer, for Selling Below the 8eller''s Limit, (g) I. That tlie defendant being engaged at . , in the busi- ness of an auctioneer, in consideration that the plaintiff would deliver to him [ye9y hriefly designate the goods], to be sold by him for the plaintiff for a compensation, undertook, on or about the day of , 18 , 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 accordingly delivered said goods to the defendant for that purpose. III. That the defendant, without the consent of the plaintiff, sold them for less than the aforesaid sum, to wit, for dol- lars, to the damage of the plaintiff dollars. 484. Against the Same, for Selling on Credit. I. and II. As in preceding form, suhstituting at the * for cash, and not otherwise. III. That the defendant afterwards sold said goods on credit without the plaintiff's consent, whereby the plaintiff has hither- to lost, and is likely wholly to lose their value, to his damage dollars. 485. Against an Auctioneer or Agent, for not Accounting. I. Allege agency, as in preceding form, or thus: that hereto- fore [and on or about the day of , 18 J, the plain- tiff shipped from the port of ' , consigned to the defend- ant, then his agent, at , to sell for cash [very Iriefly desig- nate the goods], of the value of dollars, of which consign- ment said defendant had notice, and which agency, for a valuable 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. III. That although sufficient time has elapsed therefor, he has neglected and refused, and still neglects and refuses, to (^) This form is supported by "Wolfe v. Luyster, 1 Hall, 146. 400 ABBOTTS' FORMS. Actions against Agents, Bailees, Carriers, &c. 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, to his damage dollars. 486. For not Properly Stowing a Cargo, whereby the Plaintiff'' s Freight was Diminished. Qi) ■ I. That on the day of , 18 , at , the de- fendant undertook with the plaintiff, for compensation, to super- intend the loading and stowing of a cargo of the , a ves- sel of the plaintiff at , for her voyage. II. That in consideration of the premises, the defendant then promised the plaintiff to use due care and diligence in the load- ing and stowing the cargo on board the said ship ; and accepted and acted upon said retainer. III. That the said defendant did not use due care or diligence in said loading and stowing, whereby the said vessel could not contain as much cargo as the same would otherwise have been reasonably capable of containing, and the plaintifi was compelled to dispatch the vessel on her voyage with a much smaller cargo than he otherwise would have had on board, and was obliged to decline to receive on board thereof tons weight of goods, which he otherwise might and would have taken on freight in the said vessel ; and the plain- tiff was deprived of the gains which would have otherwise arisen to him from having a full cargo, to his damage dollars. 487. Against a Bank, for Neglecting to Present a Note Lodged with it for Collection, {i) I. For allegation of defendanC s incorporation, see pp. 133 and 134, ante. II. That the defendants, on or about the day of , 18 , received from the plaintiff, he then being a depositor at (7t) TMs form is from 8u>aii's PL, in substance, from the declaration iu 390. Bank of Utica v. Smedes, 3 Cow., 663 , (i) This and the following form are, 30 Johns., 373. COMPLAINTS. 401 Against Bank or Collecting Agent. Against Receiptor. their bank, a negotiable promissory note [or, bill of exchange], of which the following is a copy: [oopy of note]. III. That the defendants, in consideration thereof, undertook and promised the plaintiff to use due diligence in presenting said note, and demanding payment thereof, from the makers [or, if it is a hill of exchange, from the acceptors] ; and in case of default in payment thereof, according to its tenor [to cause the same to be duly protested for non-payment, and] to cause due notice thereof to be given to M. JS"., the indorser [or, drawer] thereof, whereby to render him liable thereon. IV. That the defendants * did not present said [note] for pay- ment on the day of its maturity, but negligently omitted to do so, by reason whereof the plaintiffs liave wholly lost the moneys due on said note. 488. The Same, for not giving Due Notice. As in preceding form to the * and continue, presented said [note] on the day of its maturity, and the same was not paid, but that they did not give due notice thereof to the said [in- dorser'], but negligently omitted so to do, by reason whereof tlie plaintiffs have wholly lost the moneys due on said note. n. Bailees, in General. 489. Against a Receiptor. 1. That on the day of , 18 , at , the de- fondant received from the plaintiff [then the sheriff of the county of j, certain goods [the property of one M. N., a judgment-debtor, upon which this plaintiff had levied an execu- tion delivered to him as such sheriff] ; and the defendant there- upon gave to the plaintiff a receipt, of which the following is a copy : [copy receipt]. li. That on the day of , 18 , at , the plain- tiff demanded of the defendant that he deliver said goods or pay said sum of dollars ; but he refused to do so, to the plaintiff's damage dollars. Vol. I.— 36 4:02 ABBOTTS' FORMS. Actions against Agents, Bailees, Carriers, &c. 490. Against Bailee, for Wot Taking Oare of and Returning Goods. I. That on the day of , at , the plaintiff delivered to the defendant a quantity of merchandise [or very 'briefly designate the articles'], of the value of dollai-s, to be by the defendant safely and securely kept for the plaintiff [for a compensation], and to be returned and redelivered to the plaintiff on request. II. That the plaintiff duly performed all the conditions there- of on his part ; and on or about the day of , re- quested the defendant to redeliver the same. III. That the defendant, not regarding his promise and un- dertaking, did not take due care of and safely keep the said goods for the plaintiff, nor did he, when so requested, or at any time aftervtrards, redeliver the same to the plaintiff; but on the contrary, the defendant so negligently and carelessly conducted himself (_/) with respect to the said goods, and took so little care thereof, that by and through the mere carelessness, negli- gence, and improper conduct of the defendant and his servants, the goods were wholly lost to the plaintiff, to his damage dollars. 491. Against a Watch7nalcer,for not Using Due Care and Skill in Repairing. L That the defendant, being a watchmaker at , the plaintiff, on the day of > 18 , delivered to him a watch of' the plaintiff, of the value of dollars, to be re- paired by the defendant, for reward. II. That in consideration of the premises, the defendant then undertook said employment, and to use due care and skill in repairing said wafch, and to take due care thereof while in his (_;■) Where an association for the therefor, but without alleging negK- exliibition of goods, received the plain- gence or a guaranty, showed no cause tiff's goods into their building for exhi- of action. Such an association are not bition, but the building not being liable as common carriers. Davison v. water-tight, the goods were injured by Association for Exhibition of Industrr, rain beating in, — Held, that a com- 9 Sow. Pr., 326. plaint seeking to render them liable COMPLAINTS. 403 Against Watchmaker. Against Agent Employed to Load Vessel. possession, and to redeliver the same to the plaintiff on re- quest. III. That the defendant did not take due and proper care of the said watch whilst in his possession, whereb}"- the said watch was broken and injured; and he did not use due care or skill in repairing the said watch, but did his work In so careless and unworkmanlike manner, that no benefit was derived therefrom, and the watcli was not improved, to the plaintiiTs damage dollars. 492. The Same, for not Returning the Watch. I. and II. [As in preceding form.] III. That after a reasonable time for the repair of said watch, and on or about the day of , the plaintiff requested the defendant to redeliver the same ; but he refused so to do to the plaintiff's damage dollars. 493. For Negligence in Loading a Cargo. {Ti) I. That on the day of , at , the plaintiff, at the request of the defendant, caused to be delivered to him \very hriefiy designate the goods'], of the plaintiff, of the value of dollars, to be by the defendant safely and securely loaded on board a certain vessel, at , for the plaintiff', for a reason- able compensation to the said defendant in that behalf; and the defendant then received the goods for that purpose. II. That the defendant, not regarding his duty in that be- half, afterwards, by himself and his servants, conducted so carelessly and improperly in the loading of the said goods on board the said vessel, that by their mere negligence and im- proper conduct, the goods were broken and injured, to the damage of the plaintiff dollars. (k) TMs form, in substance, is from Bean's PL, 304. 404 ABBOTTS' FORMS. Actions against Agents, Bailees, Carriers, &c. 494. For Immoderately Driving a Horse. I. That on the day of , 18 , at , the de- fendant hired and received from the plaintiff a horse of the plaintiff, of the value of dollars, to drive. II. That the defendant drove the horse so immoderately, and so neglected the care of him, that the said horse afterwards, on the day of , 18 , died [or, that he became lame and hurt, and remained so ever since], to the damage of the plaintiff dollars. 495. For Driving on a Different Journey from That Agreed. I. That on the day of , at , the defendant hired and received from the plaintiff a horse [and carriage] of the plaintiff, of the value of dollars, to drive from to , and not elsewhere. II. That the defendant, in violation of the agreement, per- formed a different journey than that aforesaid, and drove said horse [and carriage] from to III. That lie did not take proper care of said horse [and car- riage], but so negligently drove and managed the same that [the carriage was broken], to the plaintiff's damage dollars. 496. Against the Hirer of Furniture., <&c.,for not Talcing Ca/re of the Same. {I) I. That on the day of , 18 , at , the de- fendant hired and received of the plaintiff certain goods [very brief y designating thein], of the value of dollars, for the period of one year then next, at the sum of dollars. II. That the defendant, not regarding his duty in that be- half, did not take due and proper care of the said goods, or use the same in a reasonable or proper manner during the said time. but took so little care of the said goods that they became in- jured and deteriorated in value, to the plaintiff's damage dollars. (f) See aaotlier form, ■witli claim for rent, ante, p. 197. COMPLAINTS. 405 Against Carriers of Goods, — for Lobs. III. Caeeiees. 497. Against a Common Carrier for Loss of Goods. I. That at the times hereinafter mentioned, the defendant was a common carrier [or, the defendants were common car- reers, [m) doing business as such as partners, under the firm of Y. Z. & Co., or, were common carriers, jointly interested as such], («) of * goods, for hire, between the places (o) hereinafter mentioned. n. That on the day of , 18 , at , in con- sideration of the sum of dollars then paid [or, agreed to be paid] to him by the plaintiff [or, of a reasonable compensa- tion then agreed to be paid to him by the plaintiff, or, in con- sideration that the plaintiff delivered to the defendant certain goods hereinaftei mentioned], the defendant agreed safely to carry to , and there deliver to . , or order [or other- wise, as the casewas^, certain goods, the property of (^) the plain- tiff, {q) of the value of dollars, consisting of [here hriefly (m) K tlie defendants are a corporar railroads connect, liable as carriers for tion, that fact may be averred as in goods received by one company to be Form 499, adding — "and, at the time transported on the road of the other, hereinafter mentioned, being such cor- Hempstead v. N. Y. Central R. R. Co., poratiou, were common carriers of goods 38 Barb., 485. for hire, between," &c., continuing as (o) We do not consider it necessary above. to state the whole route of the defend- (n) If the action is upon the contract, ants. It is enough' to show that they a joint contract by all the defendants were carriers between the place where must be proved. As to when one car- the goods were received by them and rier may be held for a loss occurring the place where they should have de- on the route of another with %vhose livered them. See Clark v. Faxton, 21 business he was connected, see 2 Greenl. Wend., 153. on Eo., 208, and cases cited ; Hart v. {p) This allegation will admit evi- Rensselaer & Saratoga R. R. Co., 8 dence of a special property, wkich is N. Y. (4 Seld.), 37 ; Campbell v. Per- sufficient to maintain the action, kins. Id., 430 ; Wright v. Boughton, 32 {g) The carrier is liable to the con- Barb., 561. signor or to the consignee for a loss or It seems, that a complaint appro- tardy delivery, according to the right priate merely to a cause of action on of property. A consignee who has the carriers' common-law duty, is not made advances on the goods may appropriate to authorize a recovery maintain the action. Dows «. Greene, imder section 53 of the general railroad 16 Bwrb., 73 ; Dows v. Cobb, 13 Id., act (Xiw 0/1850, 311, ch. 140)— which 310; Ogden ». Coddington, 2 M D makes each of two conipames whose Smith, 317 ; and see Fitzhugh v. Wi- d06 ABBOTTS' FORMS. Actions against Agents, Bailees, Carriers, &c. describe the goods'], which the plaintiff then and there delivered to the defendant, who received the same upon the agreement and for the purposes before mentioned, {r) III. The defendant did not safely carry and deliver the said goods pursuant to said agreement [although on the day of , IS , at , the plaintiff, — or, said consignee, — demand- ed the same of him] ; {s) but, on the contrary, the defendant so negligent]}' conducted and so misbehaved, in regard to the same in his calling as carrier, {t) that they were wholly lost to the plaintiff, to his damage dollars. 498. For the 8arrt,e,far Breach of the Carrier's Duty, (m) , 18 , one M. N. delivered I. [^As in preceding form.'] II. That on the day of man, 9 N. Y. (5 Seld), 559. The con- signee is presumptively the oivner. Sweet ■». Barney, 33 N. T., 335. (r) If the agreement was in writing or embodied in a receipt, the better way is to set out a copy of it, as in the fol- lowing form. ^enote(x),iiifra. 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 he for- warded," — Eeld, that they were liable as carriers. Blossom v. GriflBn, 13 N. T. (3 Kern.), 569 ; and see McCotter v. Hooker, 8 N. Y. (4 Seld), 497. (s) Wliere demand is necessary to perfect plaintiff's right, it must be averred. Bristol v. Rensselaer & Sara- toga R. R. Co., 9 Barl., 158. Where a carrier of goods did not bring the goods to the terminus at which he undertook to deliver them, and had no oflSce or agent there, he was held liable, although the plaintiff had made no demand of them at that place. Schroeder v. Hudson River R. R. Co., 5 Dvsr, 55. (t) In an action against a carrier, the plaintiff may, under the Code, allege both a contract and its breach, and wrongs and injuries committed by the defendant in the same transaction. Jones V. Steamship Cortes, 17 Gal., 487. But it is held that if the plaintiff states the custom, and also relies on an undertaking, general or special, as to the same matter, the cause of action in reality is founded on contract, and to be treated as such, in so far that it can- not be united with a claim to recover damages for a mere tort. Colwell i. N. Y: & Erie R. R. Co., 9 How. Pr., 311. But compare Adams v. Bissell, 28 Sari., 883, where the complaint, in an action against the carriers, stated as a first cause of action, that the defend- ants lost or converted a jjortion of the goods intrusted to them, and demanded damages therefor ; as a second cause of action, that when they delivered the balance, the plaintiffs, not knowing of the deficiency, paid them freight as if the whole had been delivered, and de- manded to recover back the excess of freight ; and it was held that these claims were properly united in one action. (m) This form is proper where there was no contract, and the carrier is COMPLAINTS. 407 Against Carriers of Goods, — for Loss, — for Delay. to the defendants, and they, as such carriers, received certain (roods, the property of the plaintiflF, to wit [desoribe the goods], of the value ol' dollars, to be by the defendants safely carried to , and there delivered to , for a reasonable reward to be paid by therefor. III. That the defendants did not safely carry and deliver said goods ; but, on the contrary, so negligently conducted, and so misbehaved in regard to the same in their said calling as carriers, that the same were wholly lost to the plaintiff, to his damage dollars. 499. Against a Common or Private Carrier, on a Special Contract, for Loss of Goods, (v) I. [That the defendants are a corporation created by and under the laws of the State of , organized pursuant to an act of the Legislature of said State, entitled " An Act to Au- thorize the Formation of Railroad Corporations, and to Regulate the same," passed April 2, 1850 [or other act], and the acts amending the same.] II. That on the day of , 18 , at , the plaintiff delivered to the defendant [or, if a corporation, to the defendants, being such corporation], certain goods, the prop- erty of the plaintiff, to wit [describe the goods], of the value of dollars, and in consideration {w) of tlie sum of dol- lars [or, of a reasonable compensation] paid [or, agreed to be paid] to him [them] by the plaintiff", the defendant tlien and there entered into an agreement with the plaintiff in writing, sub scribed by the defendant [by his agent duly authorized there- sought to be made liable solely as for (w) In an action upon the contract, a a breach of his public duty. consideration for the carrier's under- (v) This form is appropriate where taking must be stated, or it will be re • the pleader relies on a special contract, garded as having been made without as defining the liability of the carrier consideration. Bristol v. Rensselaer & in the respect in which a recovery is Saratoga R. R. Co., 9 Barb., 158. But sought. If the liability on which he it is not necessary to state what the relies is that of the carrier's public consideration was. 3 Ohit. PL, 857, duty, it should be averred that the de- note d. And the delivery of the goods fendant was a carrier. Bristol ». Kens- is a sufficient consideration. Slret-ter selaer & Saratoga K. R. Co. 9 Barb., 158 v. Horlock, 7 J. B. Moore, 283. i08 ABBOTTS' FORMS. Actions against Agents, BaUees, Carriers, &c. to], of which agreement the following is a copy : [copy of the agreemenf]. {x) III. That the defendant did not safely carry and deliver said goods pursuant to his agreement; but he so negligently and carelessly conducted in regard to the same, that they were wholly lost to the plaintiff; (?/) [or, but that he failed to de- liver them to at plaintiff , although on the day of 18 , he was requested so to do], to the damage of the dollars. 500. Against the Same, for Failure to Deliver at the Time Agreed; with Special Damage. I. [_For allegation that defendants were com.mon carriers, see Forms 49T, 503.] ' II. That on the day of , 18 , at , the plaintiff delivered to the defendants [one hundred fat sheep], of the {x) Where there is a special agree- ment, defining the liability of the car- rier in the respect in which a recovery is sought, the action must he on the contract for a breach of it, and not as in tort. Ma,sters v. Stratton, 7 HUl, 101 ; Wilbur «. Brown, 3 Dm., 356. So in Indianapolis, &c., R. K. Co. t). Ksmmy, 13 Ind., 518, it was held that when the contract for the carriage of goods is by a bill of lading, the declara- tion should be upon such bill, setting out a copy of it. In such case it may be immaterial that the defendant is a common car- rier, since he is liable for the violation of his -contract. See 3 Chit. PL, 356, note a. But it was usual to aver that, in a declaration in assumpsit, as well as to aver negligehce on his part, both of which belong rather to an action for breach of the carrier's public duty, than to an action on the contract. As to whether the action should be treated as one on contract, or for breach of public duty, compare the following cases. Campbell v. Perkins, 8 N. Y. (4 S'eld.), 430 ; Green «. Qark, 12 N. T. (3 Kern), 343 ; Dorr b. N. J. Steam Na\'igation Co., WN.T. (1 Kern), 485 ; Thurman v. Wells, l^Bari., 500'; Heine ». Anderson, 3 Duer, 318 ; Butler v. N. Y. & Erie R. E. Co., 23 Sarb., 110; People ex rel. Burroughs v. WUlett, 6 ^66(7«s'Pr.,'37. (y) If the contract excepts certain perils, it may properly be averred that the loss was not by those perils ; but it is not necessary to aver that the loss was not by the act of God, or public enemies, nor in consequence of negli- gence or fraud of the plaintiff, because the burden of proof is on the carrier to show those facts, if he relies on them. 3 Oreenl. on M:, §§ 219, 330. But if the contract prescribes any conditions, such as notice to the carrier of the con- tents or value, it must be averred that he had such notice, or that he waived it. Id., % 318. Yet this is held not to apply where the lack of notice was in- tended to go only to the amount of damages. Id., § 309. ' For allegation of notice or waiver, see Forms 380, 310, 331. COMPLAINTS. 409 Against Carriers of Soods, — for Delay, — for Not Keeping Dry. value of dollars, the property of the plaintiff, which the defendants, in consideration of dollars [or, of a reasonable compensation to be] paid them by the plaintiff, agreed safely to carry to the city of New York, and there deliver to the plaintiff, on or before the day of, &c. (s) III. That the defendants did not fulfil their agreement safely to carry the same, and to deliver them in New York on said day ; but, on the contrary, although the period between the said \_day of delivery to defendants] and said [day on which they should have leen delivered to plaintiff] -was a reasonable time for carrying the same from to the city of New York, yet the defendants so negligently and carelessly conducted [and so misbehaved in regard to the same, in their calling as car- riers], (a) that they failed to deliver the same in New York until the day of , 18 . lY. That the market value of said [sheep] in the cit}"- of New York on the [day agreed] was dollars, but on the [day of actual delivery] was only dollars ; and that by reason of the premises the plaintiff was injured, to his dam- age dollars. 501. Against Ga/rriers iy Water, for not Regarding Notice to Keep Dry. I. That on the day of j 18 , at the port of , the defendant being master and commander of a vessel known as the , then lying at said port, (h) the plaintiff caused to be shipped on board said vessel certain [very briefly designate the goods] merchandise, the property of the plaintiff, of the value of dollars [then in good order and well con- ditioned], (c) in consideration whereof, and of the sum of (z) Where tlie defendant covenanted ham, 13 N. T. (2 Kern), 99 ; affirming to carry goods within a certain time, S. C, 1 Duer, 209. and, if he made default, to deduct from (a) Where there was no contract as the freight for every day's default, — to the time of delivery, the carrier is Held, that these were not alternative only liable for a, delay caused by his covenants, and that a declaration by actual negligence, the owner of the goods, in an action to (i) K the defendants were common recover back the freight paid under carriers, allege the fact. See Form protest, need only set forth the first part 497. and -aver a breach. Harmony b. Bing- (c) Omit these words, if not in the 410 ABBOTTS' FOEMS. Actions against Agents, Bailees,* Carriers, &c. dollars, then and there paid [or, agreed to be paid] by the plaintiff [or, by one M. N.] to the defendant [or, in. considera- tion of a reasonable compensation by , agreed to be paid to the defendant therefor], the defendant then and there promised to take care of and safely carry 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, [d) II. That the plaintiff then and there caused due notice to be given to the defendant, that it was necessary to the preserva- tion of said goods that they should be kept in a dry condi- tion, (e) 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 [and so negligently conducted, and so misbehaved in regard to the same in his said calling as a carrier], that they became wet, and there- by entirely ruined [or state other injury, in its nature and ex- tent, according to the facts']; which injury was occasioned, not by reason of any danger of the seas, but wholly through the negligence of the defendant and his servants. IV. That by reason of the premises the plaintiff was injured, to his damage dollars. '"o 502. Averment of Loss in Unloading. III. That said vessel afterwards safely arrived at , and no [excepted jperiW], prevented the safe cari-iage or delivery ol the goods. IV. That the defendant, not regarding his duty in that be half, did not deliver the said goods to the plaintiff; and for want of I due care in the defendant and his servants in unload- ing and delivering said goods, they were wholly lost to the plaintiff, to his damage dollars. Liu of lading or agreement. 3 Chit. PI., the need of peculiar care, lie is bound 36.'). to comply with such directions. See (i^) If the contract was in -writing, set Baxter v. Leland, 1 Abbotts' Adm. B., it out, as in Form 499. 348 ; Hastings ■». Pepper, 11 Pick., 41 ; (e) If the carrier have notice, by and Sager ■». Portsmouth, &c., E. E. Co., writing on the article or package, of 31 . COMPLAINTS. 411 For Carrier's Unreasonable Delay. 503. Against Common Carrier, for Failure to Deliver in a Reasonable Time y with Special Damage. I. That the defendants are a corporation, created by and under tlie laws of this State, organized pursuant to an act ot the Legislature, entitled " An Act to Authorize the Formation of Railroad Corporations, and to Regulate the same," passed April 2, 1850, and the acts amending the same ; and at the times hereinafter mentioned, being such corporation, were com- mon carriers of * goods for hire, between the places herein- after mentioned. II. That on the day of , 18 , at , at about 11 o'clock, p. m., in consideration of the sum of dollars then and there paid [or, for a reasonable compensation agreed to be paid] to them by the plaintiff, the defendants agreed to carry to , and there deliver to the plaintitf, within a reasonable time after the receipt thereof by them as aforesaid, one hundred cans of milk, the property of the plain- tiff, of the value of dollars, which the plaintiff then and there delivered to the defendants, who received the same upon the agreement and for the purposes aforesaid. III. That hours was then the usual time occupied by the trains of the defendants in going from to , antl was a reasonable time for the transportation of said milk. IV. That the defendants failed to deliver the same within that time, pursuant to their agreement ; but, on the contrary, so negligently and carelessly conducted, and so misbehaved in respect to the same, in their calling as carriers, {f) that they failed to deliver it until hours \or, days] after it was de- livered to them as aforesaid. Y. That by reason of said delay the milk became sour and unmarketable, to the damage of the plaintiff dollars. (/) Where there is no express agree- Wend., 315 ; Bowman v. Teall, 23 Id., ment- as to time, actual negligence 306 ; Uows ■». Cohb, 13' Barb., 310 ; must be shown, to charge the carrier S. C, 10 iV. Y. Leg. Obs., 161 ; Wibert with damages for a delay in the de- v. N. Y. & Brie R. R. Co , 13 N. Y. (3 livery of goods. Parsons «. Hardy, 14 Kern), 245. 412 ABBOTTS' FORMS, Actions against Agents, Bailees, Carriers, &c. 504. Against Common Carrier of Passengers, hy Sfearriboat, for Injuries to the Person, {g) I. That at the time hereinafter mentioned, the defendants [being common carriers of passengers for hire, between the places liereinafter mentioned] were the proprietors of a steam- boat, (A) named tlie , employed by them in carrying pas- sengers * and merchandise on the river, from to II. That on the day of ? IS ? the defendants re- ceived the plaintiff and his wife and his minor child into said boat, for the purpose of conveying them therein (^) as passengers from to , for hire [or, for a reasonable compensa- tion] paid [or, agreed to be paid] to them by the plaintiff. [Or, II. That on the day of , 18 , the plaintiff was lawfully, and by permission of the defendants, upon said boat, on the trip from to .] (j) III. That the defendants so negligently and unskilfully con- ducted themselves in the management of said boat, that, through the negligence and unskilfulness of themselves and their ser- vants, the steam escaped from the boiler and engine, and burned and scalded {k) the plaintiff, and his wife and child. {g) For complaints for injuries aris- ing any damage by reason of their neg- ing out of negligence not respecting lect or refusal to forward liim ia some the defendant's contract or duties as a other vessel ; — Held, that the plaintiff carrier, see complaints in actions for must be confined to the breach specifi- Negligbnce, section xviii. cally alleged, and could not recover For complaint in an action brought upon any other grounds. Briggs ». by the representative of the deceased Vanderbilt, 19 Barb., 222. injured person under the statute, see (j) The action may be maintained complaints on Causes of Action given by one who had no contract with the BY Statute, section xxii. defendants. Great Northern Railway (A) If the defendants are a corpora- i). Harrison, 2G Eng. L. tSc E. R., 448 ; tion, state it as in the preceding form, Philadelphia & Reading R. R. Co. v. substituting "passengers" for "goods," Derby, 14 How. {TJ. 8.), 468. at the * in paragraph I. The burden of proof is on the plain- (t) Where a complaint set forth a tiflT to raise a presumption of negligence contract by the defendants to transport in the defendants. Holbrook «. Uticii the plaintiflf in a particular steamer, & Schenectady R. R. Co., 12 N. T. (2 and alleged a breach in not conveying Kern), 236 ; affii-ming S. C, 16 Barb., the plaintiflF in that vessel, without 113. either averring an obligation upon the {k) It is not essential to state the defendants to provide a substitute in circumstances which produced the dis- the event of the vessel's loss, or claim- aster. They are facts which may be COMPLAINTS. 413 For Injuries Caused by Railroad Disaster. lY. That bj reason thereof the plaintiff and his said wife and child became, and for a long time remained, ill ; the plaintifl was deprived, and for a long time to come will be deprived, oi the assistance and services of his wife and child, (?) and was obliged to, and did expend about the sum of dollars in attempting the cure of himself and his wife and child, and was, for a number of weeks, prevented from pursuing his business, and was otherwise injured, to his damage dollars. 505. The Sarne, against a Railroad Company. I. That at the time hereinafter mentioned, the defendants, a corporation duly incorporated under the laws of this State, were the owners of a certain railroad, known as the Eailroad, together with the track, cars, locomotives, and other appurte- nances thereto belonging; and were common carriers of pas- sengers * thereupon for hire, between the places hereinafter mentioned. II. That on the . day of ) 18 , the defendants re- ceived the plaintiff into one of their passenger cars for the purpose of conveying him therein, and upon said railroad, as a passenger from to , for the sum of dollars [or, for reward paid, or, agreed to be paidj to the defendants by the plaintiff. \Where the accident was caused hy a coUision.] III. That while he was such passenger, at [or, near the (Station at , or, between the towns of and J, a col- lision occurred on the said railroad, caused by the negligence of the defendants and their servants, by which said car was struck. supposed to lie -vvitliiii the defendants' to the plaintiff; but prospective loss of knowledge. And a general averment services of a child must be specially al- of negligence will suffice to let in evi- leged. QiUigan v. N. Y. & Harlem R. dence at tlie trial of the particular de- R. Co., 1 E. B. Smith, 453 ; Ford v. feet. Oldfield v. N. Y. & Harlem R. R. Monroe, 20 Wend., 310. An, action to Co., 14 N. T. (4 Kern.), 310. recover damages for injuries sustained (I) It is held that damages arising by a minor child must be in the child's from bodily pain and suffering need name ; but where the claim is for loss not be specially alleged. Curtis v. of services or for medical attendance, Rochester & Syracuse R. R. Co., 20 in the name of the father. Barnes v. Barb., 283. Nor need prospective suf- Ferine, 15 Barl, 249, and cases theru faring and loss from permanent injury cited. 414 ABBOTTS' FORMS. Actions against Agents, Bailees, Carriers, &c. and the plaintiff was iiiuch injured, being bruised and cut upon the head and face, and rendered insensible [or otherwise, ac- cording to the fact']. [ \Vhere the accident arose from defect in tJie car or track.'] III. That the car used by the defendants to convey the plain- tiff [or, the track of the defendants' road between and ] was at the time defective and unsound, and unfit to be used for that purpose; which the defendants might and would tlien and theretofore have known by due care ; but not regarding their duty, they negligently suffered it to be used, and while said car was proceeding with the plaintiff therein, from to , it was by reason of said defect and un- soundness [and the negligence of the defendants and their ser- vants] thrown from the track, and one of the legs of the plain- tiff was fractured, and the plaintiff otherwise bruised and in- jured. [Where the plaintiff was obliged to leap off to save himself.] III. That the defendants and their servants, in managing their cars in which plaintiff was thus 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 himself from the dan- ger, he was obliged to jump from the car, (m) and in doing so was much injured [<&c., as above], IV. That by reason thereof, the plaintiff became for a long time ill ; was obliged to, and actually did, expend about the sum of dollars for surgical and other treatment and at- tendance in attempting to cure himself; was compelled to have his leg amputated, and has thereby become a cripple, and pre- vented for life from actively pursuing his business ; and was otherwise injured, to his damage dollars. 506. The Same, Against the Proprietor of a Stage-coach. 1. That on the day of > 18 5 the defendant was a common carrier of passengers * by stage-coach from to , for hire. (m) This is siifficiently certain with- produced the peril. Eldridge v. Long out stating all the circumstances that Island R. R. Co., 1 Sandf., 89 COMPLAINTS. 415 For Loss of Baggage, by Carrier or Innkeeper. II. That on that day, at , he received the plaintiff upon his coach, to be carried thence to , for hire. III. That not regarding liis duty, he did not use dne care therein, but, by the negligence and improper conduct of the de- fendant and his servants, the coach was overturned, and the plaintiff was bruised and wounded [or, the plaintiff was thrown off the coach, and thereby bruised and wounded], insomuch that he became ill and lame, and was prevented for months from attending to his business [and for a long time to come will be so prevented], and necessarily incurred expenses to the amount of , in getting to , and in endeavor- ing to be cured, to his damage dollars. 507. J'or Loss of Baggage. I. As in some preceding form, inserting at the *, and their baggage. II. That on that day he received into his the plaintiff with his baggage, to wit, [two trunks containing his wearing apparel and necessary money for his journey], to be carried from to , for hire. III. That the defendant, not regarding his duty, did not use proper care therein, but, by the negligence and improper con- duct of him and his servants, said trunks with their contents were wholly lost, {n) to the damage of the plaintiff dollars. IV- Innkkepees. 508. For Loss of Trunk, or Contents. L That at the times hereinafter mentioned, the defendant was the keeper of a common inn in the city of , known as '-The House." () together with his baggage, to wit, a trunk containing \_here designate contents lost], the property of the plaintiff. III. That the defendant and his servants so negligently and carelessly condncted themselves in regard to the same, that while he so remained at said inn, his said trunk was taken away [or, was broken open, and said was taken away] from the room of the said [guesf\ by some person or persons to the plain- tiff unknown ; {q) and thereby the same became wholly lost to the plaintiff, (r) to his damage dollars. 609. Against Proprietor of Bathing-house, for Loss of Pocket-iooTc. I. That the defendant, at the time hereinafter stated, was a common innkeeper at the town of in this State. II. That on the day of ,18 , he received and entertained this plaintiff as a guest at his inn, for hire. III. That the inn of the defendant was upon the sea-shore, and in connection with it the defendant maintained bathing- houses for the safe-keeping of the clothing, wardrobe, and such money and jewelry of his guests as are usually carried upon the person of guests and patrons of his inn and bathing- house. lY. That while the plaintiff was then and there his guest, the defendant undertook, for compensation paid him by the plaintiff, to keep safejy in one of his said bathing-houses, the clothing and such articles of jewelry and valuables as the plaintiff then had upon h*s person, while the plaintiff should bathe ; and that the plaintiff thereupon put into his said bath- ing-house his clothing, his pocket-book containing money and {p) Averring that defendant was an ligence in such case. Clute ■». Wiggins, innkeeper, and as such received horses 14 Johns., 175 ; Willard v. Reinhardt, 3 from a third person, to he kept, suffi- E. D. Smith, 148. ciently imports that the latter was a (r) Demand hefore suit is not neees- guest. Peet v. McGraw, 25 Wend., sary, where the goods are lost. Mc- 653. Donald v. Edgerton, 5 Barb., 560 ; Wil (q) It is not necessary to prove neg- lard v. Reinhardt, 2 E. D Smith, 148. COMPLAINTS. 417 Against Innkeeper. Against Pledgee. such other property as is usually carried upon the person, of the value of dollars, and left the same in the possession and charge of the defendant, both as innkeeper and as special bailee as aforesaid. Y. That while this plaintiff was bathing, his pocket-book and money were, by the negligence, carelessness, and dishonest management of the defendant and his servants, lost and stolen. [VI. That the amount of the said money belonging to the plaintiff so lost and stolen, while the same was under the charge of the defendant, was dollars and upwards, in lawful money of the United States, and current bills of solvent banks, and sundry small silver coins of trifling value ; and that the plaintiff is by profession [designating a business requiring the plaintiff to carry considerable sums'], and that said sum was such an amount as he might reasonably and properly carry with him with reference to his circumstances in life, and the nature of his business.] VII. That the said inn was upon the sea-shore, and that facilities for bathing according to the custom of the neighbor- hood, and as the defendant then well knew, were considered a part of the accommodations necessary to be afforded by the inn- keepers in that vicinity. VIII. That by said negligent, careless, and dishonest deal- ing of the defendant and his servants, the plaintiff has sustained damage in the sum of dollars. V. Pledgees, (s) 510. I*or Loss of Pledge. I. That on the day of , 18 , at , the plaintiff delivered to the defendant [briefiy designate the thing], the property of this plaintiff, of the value of dollars, by (g) If there has been a conversion of payment, it may be added tliat lie can the pledge, recovery may be had on sell only upon notice to the pledgoi. the ordinary complaint for conversion Stearns u Marsh, 4, Den., 327 ; 2 Kent's (see infra) ; it is not necessary to sue Com., 749 ; De Lisle v. Priestman, 1 the pledgee specially in his character Browne {Pa), 176 ; and see Hart ■». Ten as such. In respect to the right of the Eyck, 2 Johns. Ch., 62. And the sale, pledgee to sell the pledge on default of in the absence of an agreement to the Vol. I.— 27 418 ABBOTTS' FORMS. Actions against Agents, Bailees, Carriers, &c. way of pledge to the defendant to secure the sum of dol lars theretofore loaned by the defendant to the plaintiff [and interest thereon ; or other indebtedness], which \_pledg6] the de- fendant received for that purpose, and agreed with the plaintiff to take good care of until it should be redeemed by the plaintiff. II. That the defendant has failed to fuliil said agreement on his part, and on the contrary took so little care of, and so neg- ligently kept said [^pledge], that while it was in his possession for the purposes aforesaid, it was through his negligence lost, to the damage of the plaintiff dollars. 511. For Injury to Pledge. I. \_As in preceding form^ II. That the defendant, not regarding his promise, so negli- gently conducted in respect to said \_pledge\, and so carelessly used the same, tliat it became, by reason of his negligence and carelessness, greatly damaged \_state briefly the injury, in its nature and extent, as the case was], to the damage of the plain- tiff dollars. VI. Warehousemen. 512. For Loss of Goods. I. That on the day of , 18 , at , the de- fendants, in consideration of the sum of dollars, then and contrary, must be made by public auo- and see Cortelyou v. Lansing, 3 Cai. tion. Castello u. City Bank, 1 iV. T. Gas., 300. The notice also should ap- Leg. Ohs., 25 ; Jones "o. Thurmond, 5 prise the pledgor of the time and place Texas, 318 ; and see EanMn v. McCul- of sale ; as the object is not that the lough, 13 Bar!}., 103. No agreement notice should operate as a demand, but entered into by pledgor, at the time of that the pledgor should be enabled to depositing a pledge, that in case of de- bid at the sale, or to procure a good bid fault the pledge shall immediately be- to be made, &c. See Brown «. Ward, come the absolute property of the 3 Duer, 660 ; Castello v. City Bank, 1 pledgee, can defeat the right of the N. Y. Leg. Obs., 35 ; WHloughby v. pledgor to have notice of the sale. 3 Comstock, 3 Hill, 389 ; Tucker v. WU- Kent, 748, and authorities there cited ; son, 1 Bro. P. C, 494 ; S. C, 1 P. Wms., Hart V. Burton, 7 J. J. Marsh., 333 ; 361 ; Lewis is. Graham, 4 Abbotts' Pr., Lucketts V. Townsend, 3 Texas, 119 ; 106. COMPLAINTS. 419 For Injury to Goods. ~ For Refusal to Deliver. 'iiGio paid [or, agreed to be paid; or, of a reasonable compen- sation agreed to be paid] to them by the plaintiff, agreed to store and safely keep in their warehouse at certain mer- chandise, the property of the plaintiff, of the value of dollars, consisting of [kere hriefiy describe goods], until the same should be called for by the plaintiff \or, for the tea-m of two months from said date, or otherwise'], and then safely to deliver said goods to the plaintiff [or his order] at his request, {t) and then and there received the same for that purpose. II. That the defendants neglected to take proper care of said merchandise ; and through the negligence of themselves and their servants, the same became wholly lost to the plain- tiff, to his damage dollars. 613. For Injury to Goods, ly Neglect to Obey Instructions. I. \As in the preceding form.] II. Tiiat at the time of the delivery of said goods to the defendant the plaintiff caused the defendant to be informed tliat it was necessary to the preservation of said goods that they should be kept in a dry condition \or, be handled with care]. III. Tliat the defendant negligently allowed the same to be- come wet \or, to be handled without care, and roughly moved and broken], so that the same, through the negligence of the defendant and his servants, became greatly injured \or, entirely ruined], to the damage of the plaintiff dollars. 514. For Refusal to Deliver. I. [As in Form 512.] II. That on the day of , 18 , at , the plaintiff requested tlie defendant to deliver the said goods, and tendered him dollars [or, the amount due tliereon for storage], but the defendant refused to deliver the same ; to tlie damage, of the plaintiff dollars. (f) If there was a written contract, the better course is to set it out. 420 ABBOTTS' FORMS. Actions against Sherifis. 515. Fot not Forwa/rding Goods according to Agreement, I. That at the time hereinafter mentioned, the defendant 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 defendant received from the plaintiff certain merchandise, to wit [briefly describ- ing it'], the property of the plaintiff, of the value of dol- lars, which he undertook for hire to forward in a reasonable time from to , by [a vessel], and meanwhile to store and safely keep the same. III. That after the defendant received said goods, such a [vessel] did, within a reasonable tirrie then following, proceed 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 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 unreasonable time, to wit, two months, whereby the said goods perished ; to the damage of the plaintiff dollars. Skction XYI. complaints in actions against sheriffs. [These forms are appropriate for cases wliere a sheriff is sued for a breach of his official duty. Oomplaints in actions on his bond are given, ante, p. 269. Where a slieriff is sued for a levy or arrest which was unauthorized, it is not necessary to' aver his official character. The forms given for ordinary ac- tions for injuries to property or person will be appropriate.] {a) (a) An officer having made a proper such that he is entitled to have a certain levy, cannot he sued in trover by the amoimt or value of it exempt, he shoiild debtor for a part of the goods which before suing for its detention, give no was not sold, without proving a de- tice to the officer that he claims that it mand that he redeliver them, and a re- is exempt, demanding a redelivery, and fusal. Whitmarsh v. Angle, 3 GodeB., give the officer an opportunity to com . 53 ; S. C, 1 Am. Law JR., iV. 8., 595. ply. Seaman v. Luce, 23 Barb., 240 Where a debtor's property levied on is But it is not necessary in the com COMPLAINTS. 421 For Neglect to Return Process. 516. For neglecting to return execution p. 421 517. For neglecting to levy 433 518. For neglecting to pay over moneys collected on execution 423 519. For a false return 434 520. For an escape. Common form 425 521. For an escape from custody upon an order of arrest 426 522. For escape from execution or attachment for non-payment of costs ; seeking to recover the amount of the debt, . Brand, 9 W. Y. (5 Seld), tiff to negative it. See 2 Oreenl. on M>., 308; see, also, Daguerre s. Orser, 3 .45- § 589. botts' Pr., 86 ; and compare note (/). (t) This allegation brings the case supra, and cases there cited. COMPLAINTS. 427 For Jlscape ; — in Debt under the Statute. IV. That thereaftei- the defendant, as such sheriff, arrested said M'. N. and committed him to jail, pursuant to said order ; but in violation of his duty as such sheriff, has since, to wit, ou the day of , 18 , without the consent of this plain- tiff, permitted said M. N. to escape [or, but since then, to wit, on the day of ,18 , said M. K went and was at large without the limits and boundaries of the liberties of said jail, without the assent of the plaintiff], to the damage of the plaintiff dollars. 522. J^or Escape from Execution w Attachment for Non-pay- m.ent of Costs ; Seeking to Recover the Amount of the Belt, c&c, as in an Action of Delt, under the Statute, (v) As in Form 520, omitting the words, " to the plaintiff's dam age dollars," at the end, and substituting for the usual demand of judgment, the following : Wherefore the plaintiff demands judgment against the de- fendant according to the statute, for the debt \or, damages, or, S'um of money], for which such prisoner was committed ; to wit, dollars, with interest from, &c. {w) (■c) In the absence of statute the the judgment remaining wholly un- sheriff may be held liable for an escape paid, the defendant {sheriff "[ became only by an action in the nature of an indebted to the plaintiffs in the sum action on the case in which the plain- of doUars, the amount of said tiff can only recover his actual damage, judgment." Barnes t). Willett, 11 ^Z> By 2 Kev. Stat., 437, he was made lia- lotW Pr., 320 ; S. C, 19 How. Pr., 5G4. ble in the case of escape from execu- So in Renick v. Orser, 4 Bosw., 384, tion in civil action, or attachment for and McCreery v. Willett, Id., 643, costs, to an action of debt, in which the claiming the amount of the debt, with plaintiff might recover the whole of liis interest and costs, without using the judgment against the prisoner. This word " damages," was held equivalent statute is not abrogated by the Code, to a declaration in debt under the Barnes «. Willett, 12 Abbotts' Pr., 448 ; statute. S. C, 3.5 Barb., 514. It is safer to show {w) It seems that if the plaJntiff in the complaint that the action is would recover interest upon his iudg- founded' on the statute ; but another ment against the debtor he must not form than that above may show it sue on the statute, but for damages, as equally well. Thus, it is enough to in Form 520. Renick «. Orser, 4 JSosM., conclude by adding, " That, thereupon, 384 ■1:28 ABBOTTS' FORMS. Actions against Sheriffs. 523. Upon Sheriff^s Liability as Bail, under the Code of Procedure, {x) I. That at the times hereinafter named, the plaintiff's were co partners, doing business in- the city of New York, under the firm-name of M. & D. II. That the defendant was sheriff^ of the countj of , on and from the day of , 18 , to the day of , 18 . III. That an order of arrest, of which a copy is annexed as part of this complaint, marked Schedule B., was duly made by , at that time a justice of the Supreme Court of this State, and delivered to the said defendant, on or about the day of 5 18 , in an action in said court, wherein these plaintiffs were plaintiffs, and one G. H. was defendant, requir- ing the defendant in this action to arrest and hold to bail, in the sum of dollars, the said G. H. IV. That thereupon the defendant arrested said G. H., on or about the day of ; 18 , and thereafter permitted him to escape from his custody ; and on or about the _ day of , the said defendant delivered to the plaintiffs' attorneys, by whom the order of arrest was subscribed or indorsed, a paper purporting to be a certitied copy of an undertaking of the bail taken by him upon the discharge of the said G. H. from arrest, a copy of which is annexed as a part of this complaint, and marked Schedule A. ; but the same was not executed by two or more sufficient bail, and did not state their places of resi- dence and occupations, according to law ; and that on the next day — that is to say, on or about the day of , 18 , — a notice was duly served on the defendant, that the plaintiffs did not accept the said bail, but after the receipt of the said notice {x) This complaint is sustained by spect to the liability of the oflScer and Metcalf V. Stryker, 10 Abbotts' Pr., 13 ; in respect to the limitation of tiniH S. C, 31 Ba/rb., 63. A distinction is to within which they may respectively be be noticed between the action against brought, &c. And it is held that in an the sheriff for an escape and an action action brought in form for an escape, founded on section 201 of the Code, the plaintiff ought not to be allowed to which declares that in case defendant amend his complaint so as to found the escapes after arrest, the sheriff Shall be action upon section 201. See Daguerre liable as bail, &c. The two actions are ii. Orser, 3 Abbotts' Pr., 86, where the governed by different rules, both in re- distinction is discussed. COMPLAINTS. 429 Against Sheriff as Bail. I)}- tlie defendant, neither the defendant nor the said G. H. gave to the plaintiffs or their attorneys, by whom the said order oi arrest was subscribed, notice of the justification of the same, or of other bail, before a judge of the court or a county judge, at any specified time or place, nor any justification, or other no- tice of justification, as required by law. V. Tliat on the day of > 18 , the plaintiffs ob- tained judgment in said action against said G. H. for dollars, and on the day of > 18 , caused [to be filed a transcript of said judgment in the office of the clerk of county, and] an execution to be duly issued to the then sheriff of said county, upon said judgment, against the property of said G. H., which was thereafter returned by said sheriff, wholly unsatisfied ; and, thereafter, and on the day ot ,18 , an execution against the person of said G. H. was duly issued to the said sheriff, which has also been returned by the said sheriff, " defendant not found." YI. That the said judgment has not been paid, nor any part thereof; but the same is still unpaid, and in full force. VII. That the amount of said judgment and interest was duly demanded of said defendant, before the commencement of this action, and the payment of the same refused. Section XVII. COMPLAINTS IN ACTIONS FOK DECEIT. [In an actioa to recover damages for false and fraudulent representations where there is no warranty, the facts that the representations were false, that defendant Icnew them to be false, and that he made them with intent to defraud the plaintiff, are all essential facts constitutive of the cause of action. They must be stated In the complaint; and they should be stated with clear ness and certainty, (a) (a) It was held in Sharp v. Mayor, those representations were false, that &c., of N. Y., 25 Sow. Pr., 389, that if the plaintiff relied on them, and that tli. Bryan, tract, may be joined. " Transaction" 5 AUbotts' Pr., 163 ; Clark «. Baird, 9 means the whole proceedings, com- N. T. (5 Seld), 183 ; and see Van De mencing with the negotiation and Sande v. Hall, 13 How. Pr., 458. ending with the performance of the This form is, in substance, from contract, where the matter in contro- Jfash's PI. dk Pr., 237. versy arises out of a contract. Rob- (p) When the fraudulent represen- inson v. Flint, 7 Abbotts' Pr., 393, tations relate to the quantity of the note. land, it is immaterial whether the sale (r) Particular matters of loss or ex, is in gross or by the acre. Thomas «. pense which the plaintiff seeks to ra Beebe, 25 JT. Y., 244. cover, should be specially stated. Vol. I.— 38 434 ABBOTTS' FORMS. Actions for Damages caused by Deceit or Fraud. 528. Against Seller of Chattels^ for Fraudulently Representing them, to he his Property, (s) I. That on the day of , 18 , at , the defendant having offered to sell to the plaintiff a certain horse, did, witli intent to deceive and defraud the plaintiff, falsely and fraudulently I'cpresent to him that said horse was the property of defendant [or otherwise., as the representations were\ II. That the plaintiff, relying on said representations, pur- chased said horse of the defendant, and paid him therefor the sum of dollars, {t) III. That, in truth, and as defendant then well knew, said representations were false, and said horse was not the property of the defendant, but was the property of one M. IST. [or other- wise state specifically the particulars in which the representations were false\. lY. That thereafter, the said M. N". sued this plaintiff in the Court [or, before Q. R., a justice of the peace for the town of J, to recover the value of said horse; and al- though this plaintiff [emploj-ed one O. P., a competent attorney of the Supreme Court of this State, to defend, and] used due diligence in the defence of said suit, (m) the said M. IS", recovered a judgment (i)) against the plaintiff [duly given by said justice] for the sura of dollars, which this plaintiff has since paid («) Compare with tMs form, tlie form action may be maintained, though there of complaint already given for a False was no consideration. Barney s. Dewey, Warranty of title ; Fofm 478, ante, p. 13 Johns., 234 ; Corwin v. Davison, 9 394. pow., 32. A complaint averring " that defend- {xb) Or, state notice to defendant of ant falsely pretended to be the owner" the pendency of the suit, as in Form of a certain chattel, and " that he 478, ante, p. 394 ; and see Blasdale v. fraudulently sold it to the plaintiff, Babcock, 1 Johns., 517. whereby he became liable," fixes the An allegation that the true owner gravamen of the action as fraud. 3 had recovered against the plaintiff on Johns., 560 ; 13 Id., 324. Edick v. Crim, the ground that defendaHt was not the 10 Barb., 445 ; and see McGovern «. owner, is proper ; and an allegation Payn, 33 Id., 83. That actions of this that defendant was a witness at the description are founded on the fraud, trial of the owner's action, is equivar not on the contract, see McDuiBe v. Bed- lent to an averment of notice. Barney doe, 7 mil, 578. «. Dewey, 13 Johns., 234 ; Corwin v. (t) The averment of price paid goes Davison, 9 Cow., 33. only to the amount of damagep The («) The fact of recovery by the right- COMPLAINTS. 435 For Deceit in Delivery. In Selling Stock. [or, which judgment still remains oatstanding and iu full force]. V. That by reason of the premises, this plaintiff has been misled, to his damage dollars. 529. The Same,/or Fraudulently Delivering Smaller Quantity than Agreed For. {w) I. That the plaintiff, on the day of > 18 , at , bought of tlie defendant, and the defendant sold and agreed to deliver to the plaintiff [briefly designate the merchan- dise and price, — e. g., thus, — ten tons of coal, for the price of dollars per ton]. II. That the defendant afterwards, and on the day of , IS , intending to defraud the plaintiff, fraudulently and deceitfully delivered to him only [nine tons of coal] as and for the said quantity of [ten tons], so bargained for and sold ; and pretending it so to be, tiiough then well knowing that tlie [coal] so delivered did not contain the quantity bargained for and sold, but only [nine tons], to the damage of the plaintiff dollars. ♦ 530. For Fraudulently Misrepresenting Value of Stock in a Cor- poration, Agreed to he Talcen in Payment for Services, (x) I. Tliat on the ' day of , 18 , at , the defendant liaving offered to the plaintiff that he would assign and transfer to him shares of the par value of dollars each, of the capital stock of the M. N. eompanj^, a corporation, incorporated under the laws of , and doing business in , upon consideration tliat the plaintiff should render ser- vices [b_y himself and his servants] in [state hriefly the nature of the services agreed to he rendered'], did, with intent to deceive and defraud the plaintiff, falsely and fraudulently repre- sent to hi til tliat said stock was of the marjcet value of dollars, and that defendant had paid all charges, calls, and as- sessments laid or to ha laid upon said shares by said company ful owner against tlie buyer, is conclu- Nash's PI. & Pr., 337 ; and see, 3 sive against the fraudulent seller. Bar- StarJc, 28. ney v. Dewey, 13 Johns., 324. {x) See Atwill v. Le Roy, 4 Abbotts' {w) This form is, in substance, from Pr., 438 436 ABBOTTS' FORMS. Actions for Damages caused by Deceit or Fraud. or the trustees or directors thereof [or otherwise, as tJie false representations were]. II. That the plaintiff, relying upon said representations, then and there agreed witli the defendant to render [by himself and his servants] all necessary services that should be required by tiie defendant in said [&c.J, to the value, at the market pric'es for such services, of dollars [or otherwise state fully the nature and the value of the services agreed to he rendered'] ; and thereafter proceeded to, and did render [and cause to be ren- dered] said services [state facts showing how far the contract was performed hy plaintiff]. III. Tliat, in truth, and as defendant then well knew, the said stock was not then of the market value of dollars ; but, on the contrary, the said company was then insolvent, and the stock worthless and unsalable in the market ; and the de- fendant had not paid all charges, calls, and assessments laid upon said shares ; but, on the contrary, a special assessment of per cent, on the par value of said shares had been there- tofore duly imposed upon them by the directors of said com- pany, wliich assessment had not been paid by defendant, but then remained [and still remains] a charge upon said shares [or otherwise state specifically the particulars in which the repre- sentations were false.] TV. That by reason of the premises, the plaintiff has been misled, to his damage dollars. 531. Against the Directors of an Insurance Company, to hold them Personally Liable on a Policy, on the ground of theii False 'Representations of the Amount of Capital which In- duced Plaintiff to Insure, {y) 1. Tliat these plaintiffs are, and at all the various times here inafter mentioned were, partners in business, as , in , under the hrm-name of A. B. & Co. (y) This form is sustained by Harper Pr., 375 ; Mabey ». Adams, 3 Bosw., V. Cliamberlain, 11 Abbotts' Pr., 234. 346. For a complaint for fraudulent repre- In an action against promoters of a sentations as to the value of stock, Bubble Company, the same facts must w-hereby the plaintiff was induced to concur as in an action for the false purchase"it, see Newbery v. Garland, representation of the credit of a buyer. 31 Barb., 131 ; Morse v. Swits, 19 How. The pleading must state what the false COMPLAINTS. 437 Against Directors of Bubble Company. II. That in the 3'ear 18 , a company known as [_7iaine of corpo7'aii(m], was organized in this State for the purpose, among other things, of making insurance upon [vessels, freights, goods, ■wares, merchandise, specie, jewels, profits, commissions, bank- notes, bills of exchange, and other evidences of debt, bottom/y and respondentia interests, and to make all and everj^ insurance appertaining to or connected with marine risks, and risks of transportation and navigation ; and to make insurance on dwelling-houses, stores, and all kinds of buildings, and upon houseliold furniture, mercliandise, and otlier property, against loss 01- damage by fire, and the risks of navigation and trans- portation]. III. That said company was pr-etended to be organized under the provisions of an act of the Legislature of this State, passed April 10, 1849, entitled "An Act to provicje for the Incorpora- tion of Insurance Companies." IV. That, by the pretended charter of said company, it was provided that the business of said company should be con- ducted upon the plan of mutual insurance ; and it was also provided that the capital of said company should be dol- lars ; and it was also provided that tlie directors of said com- pany might unite a cash capital of not less than , nor more than dollars, as an additional security to the in- sured, above tlie fund of dollars, also mentioned in said charter; and it was also provided that the principal ofiice of the company should be located in the city of IST. Y. V. That upon or after the organization of said company, and prior to the month of , 18 , the defendants, and each of them, were chosen trustees or directors of said company, and accepted and entered upon ofiice as such ; and tlie defendants, und each of them, were, during said [mont/i], and before and afterwards, trustees or directors of said company. representation was ; it must have been intent of influencing every one to false, and so known to be to the de- whom it might be communicated, or fendant, and made with the intent and who might read or hear of it, the latter with the eflFect of deceiving the plain- class of peilsons would be in the same tiff, and must have caused loss to him- position as those to whom it was direct- It is not essential that the representa- ly communicated ; but they must have , tion should be addressed directly to come to a knowledge of it before their theplaintiff. If it were made with the purchase. Cazeauxf;.Mali,355a;r6.,578. 438 ABBOTTS' FORMS. Actions for Damages caused by Deceit or Frand. VI. That the defendants, as such directors or trustees of said company, fraudulently, and with the intent to induce these plaintiffs and others to make insurances with the said company, and pay them premiums for such insurances, did, at many times prior to, and during the first week of said [mont/i], falsely pub- lish, advertise, aver, and represent to the public at large, and to these plaintiffs, and to the confidential advisers of these plain- tiffs, that the capital of said comijany was [a sum largely ex- ceeding the actual capital] ; and that said company was pos- sessed of a paid-up capital of said last-mentioned sum ; and that said company was solvent and responsible, and able to pay any losses to the amount of said last-mentioned sum ; and they did fi-audulently, and with like intent, prepare, and pub- lish, and exhibit to these plaintiffs, and tVie confidential advisers of these plaintiffs, a form of policy containing a sta,tement that the capital of said company was said last-mentioned sum ; whereas tlie fact was, and these defendants well knew, that said company had never raised, and never were possessed of a capi- tal of said last-mentioned sum in any form ; and tliat they had never raised, and never were possessed of any cash capital ex- ceeding dollars ; and that the said company never did raise a capital in any form of the value of even dollars. VII. That these plaintiffs, confiding in the representations aforesaid made to them by the defendants, and confiding in tl)e general reputation of said company, produce'd by the represen- tations aforesaid made by defendants to the public at large, and being further advised thereto by the confidential advisers of these plaintiffs, who were misled by the i-epresentations afore- said made to them by the defendants, and believing, in conse- quence of the premises, that the said company was possessed of an actual capital of dollars, paid in or secured in some or the ways prescribed by the provisions of the act of 1849, here- inbefore referred to, were induced to enter into a contract with said company for an insurance, as hereinafter stated, upon the material, stock, fixtures, and other property of these plaintiffs, used by them in their business, for one year from the day of , 18 ; and these plaintiffs, confiding and believ- ing as aforesaid, were induced by the premises to pay, and on or about the day of ,18 , did pay to the said com- pany, and to the defendants as directors or trustees thereof, the COMPLAINTS. 439 Against Directors of Bubble Company. sum of dollars as premium upon such insurance ; and were induced by the premises to make said insurance with said company, instead of making it with other companies, of which there then were a great number, solvent, responsible, and willing to make such insurance on the property described in said policy. VIII. That the said company did, on the day of , 18 , execute and deliver to these -plaintiffs their policy of in- surance, a true copy whereof is hereto annexed, marked Ex- hibit A, whereby the said company, in consideration of dollars, to them paid by these plaintiffs, the receipt whereol was thereby acknowledged, did insure these plaintiffs against loss or damage by fire, to the amount of dollars, on their [printing and book materials, stock, paper, stereotype plates, fixtures, printed books, and steam-engine and machinery], con- tained in the premises in the city of IST. Y., described in said policy. IX. That on the day of 5 18 ? the said [insur'ed ])rojpe,rty\ described in said policy of insurance, were by mis- fortune, and without fraud or evil practice, damaged, consumed, and lost by fire, not happening by means of any invasion, in- surrection, riot, or civil commotion, or any military or usurped power ; and that, by the said fire, the said insured sustained loss and damage, in and by the consuming, damage, loss, and destruction of said property, to the amount of dollars, es- timating the said loss at the true and actual value of the prop- erty at the time of the happening of said fire, X. That, at the time of said fire, there were other insurances effected by these plaintiffs, as permitted by said policy, on the same property, to the aggregate amount of dollars only. XI. That, at the time cf making said insurance, and from then until the fire above mentioned, these plaintifi's had art in- terest in the said property insured as the owners thereof, and they were, and now are, the lawful ownei-s and holders of the claim arising upon said policy and loss against the said company. XII. That these plaintiffs duly fulfilled all the conditions of said policy of insurance upon their part, and did forthwith, after the said loss and damage by fire, give notice thereof to the said company, and did, as soon thereafter as possible, and 4:40 ABBOTTS' FORMS. Actions for Damages caused ty Negligence. on the day of j 18 , deliver to said company a particular statement of said loss and, damage, subscribed by A. B., one of these plaintiffs, and duly verified by his oath ; and tliese plaintiffs, on the day of , 18 , and at divers other times, duly demanded from said company payment of the sum of dollars and interest, due to them upon said policy by reason of said loss. XIII. That said company have hitherto always neglected and refused to pay said loss ; and these plaintiffs brought an action in the Court of against said company, to recover upon said policy for their loss sustained as aforesaid, and were put to great expense therein, and on the day of , 18 , recovered judgment therein for the full amount of tlieir claim, and interest, and costs, to wit, dollars, and caused execution to be issued thereon ; which execution was, on tlie day of , 18 , returned wholly unsatisfied. XIY. That, by reason of the premises, these defendants have sustained great damage, to wit, dollars. Section XVIII. COMPLAINTS IN ACTIONS FOE NEGLIGKNCE. [The complaints in this section are for negligence not connected witli con- tract or official duty, (a) Where the negligence consists in the omission of a duty, the facts which are relied on as raising the duty must be alleged. (J) Injuries to both person and property, from one act of negligence of the defendant, constitute but one cause of action at common law. and section 1 67 of the Code of Procedure, which enumerates such injuries separately, does not alter the rule, (c) (as) Complaints in actions for neglect gan, iDuer, 439 ; Seymour i\ Maddox, of a duty arising out of contract, — e. g.,y 16 Q. B., 326 ; S. C, 71 Eng. Com. L. in actions against carriers, &c., are iJ., 836 ; and see McGinity «. Mayor, £iven in the previous section. For ac- &c., 5 Duer, 674. tions, under the statute, by the per- As to the sufficie'ncy of an allegation Bonal representatives of deceased per- that it became the duty of defendant, son, see section XXIV., supra. as ship's husband, to insure, see Gregory (6) City of- Buffalo d. Holloway, 7 v. Oaksmith, 12 Sow. Pr., 134. N. T. (8 Seld.), 493 ; affirming S. C, 14 (c) Howe v. Peckham, Hi Barb.. 656 ; Barl., 101 ; Taylor v. Atlantic Mutual S. C, 6 How. Pr., 229 ; Grogan v. Lin- Ins. Co., 2 Bosw., 106 ; Congreve v. Mor- deman, 1 Code R., N. 8., 387. COMPLAINTS. 44:1 Analysis of the Section. If the plaintiff would rely on several acts of negligence, as the cause of one injuiy, he may allege all the acts of negligence in one count, and aver tliat they were the cause ; and if he prove upon the trial that any one of them was the cause, his complaint is sustained, (d) Ordinarily, however, a general averment of negligence is sufficient to admit proof of the special circumstances constituting it. Tlius 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, (e) Degrees of negligence are matters of proof, and not of averment ; and a general allegation of negligence, want of care and skill, &c., is sufficient in an action for injuries caused by such negligence, whether the defendant is liable for ordinary or only gross negligence. (/) It is not necessary for the plaintiff to allege in his complaint that the in- jury happened without any want of ordinary care on his part; {g) except where the facts alleged are such as to raise a presumption of such fault in him.] (A) 532. For keeping a mischievous dog, by which plaintiff was bitton p. 443 533. For keeping a dog accustomed to bite sheep and other animals 444 534. For keeping open a dECngerous hatchway, througli which plaintiff feU 440 535. Against a municipal corporation for neglect of an excavation in the streets 440 530. Against a person who had contracted to lay down gas-pipos in a street, for leaving the street in an insecure state, whereby plaintiff's horse was injured .' 447 537. For laying rubbish in the street, whereby the plaintiff was thrown out of his carriage 447 538. For flowing water from roof on plaintiff's premises 448 539. For carelessly kindling a fire on defendant's land, whereby plaintiff's property was burned 448 540. For imdermining plaintiff's land 449 541. The same, where plaintiff is the reversioner 449 542. Tlie same, where the plaintiff's buildings were undermined 440 543. For negligence of mill-owners, whereby plaintiff's land was over- flowed 450 544. Against the city of New York, to recover damages to fruit-trees, done by negligence of public servants 451 545. Against owner of vehicle negligently driven by servant against plain- tiff's vehicle, — showing damage to person and property 453 546. Against railroad company, for collision with plaintiff's vehicle at a crossing 453 (d) Dickens b. N. T. Central R. K. Co., 389 ; and see Robinson i). Wheeler, 25 13 How. Pr., 228. N. Y., 253. («) Oldfleld u. N. Y. & Harlem R. R. ig) Johnson v. Hudfion Biver B. R. Co., UN. T. a Kern.), 310. Co., 5 Duer, 21 ; 20 Jf. Y., 65 ; Wolfe (/) Nolton 11. Western R. R. Co., 15 v. Supervisors of Richmond, 11 Al- JSf. Y., 444. And an averment of malice botts' Pr., 270 ; S. C, 19 How. Pr., does not vitiate the pleading. Winter- 370. son V. Eighth Ave. R. R. Co., 2 Hilt, (7i) Burdick v. Worral, 4 Barb., 590. 442 ABBOTTS' FORMS. Actions for Pamages caused by Negligence. 547. Against tlie same, for killing cattle 454 548. By a servant of railroad company, injured by defective machinery. . . . 454 532. For Keeping a Mischievous Dog, hy which Plaintiff wan BitUn. I. That at the time hereinafter mentioned, the defendant wrongfully kept(*) a dog, well knoM'ing him to be of ferocious and mischievous disposition, i^j) and accustomed to attack and bite mankind. (i) According to some of the authori- ties, the action does not necessarily draw in question the adequacy of de- fendant's precautions for guarding his dog. If the dog was of ferocious dis- position, and accustomed to bite man- kind, and defendant knew this, and plaintifi" has been bitten, there is, it is held, a right of action -without showing specific negligence in the custody of tae dog, on the ground that the owner of such a dog should destroy him, or at least is absolutely bound to confine him safely ; and if he neglects to do this, he is liable for any injury the animal may do. Buckley n. Leonard, 4 Den., 500 ; 2 GJiit. PI., 596. And see Jenkins «. Turner, 1 Ld. Baym., 109 ; Loomis «. Terry, 17 Wend., 496. But to main- tain the action on this ground, the owner must be shown to have known that the animal was wont to do mis- chief of the kind suffered by plaintiff; and the duty of destroying or of abso- lutely confining the animal, seems to arise only where it is of a disposition dangerous to the lives or safety of liuman icings. See Smith i). Pelah, 2 Stra., 1364. (J) To hold the owner of domestic or other animals not necessarily inclined to commit mischief, as dogs, horses, and oxen, liable for any injury com- mitted by them to the ijerson or per- sonal property, it must be alleged that he previously had notice of the animal's mischievous propensity, (x that the in- jury was attributable to some other neglect on his part ; it being in general necessary in an action for an injury com- mitted by such animals, to allege and prove the scienter. 1 Ghit. PI., 70 ; Lyke V. Van Leuven, 4: Den., 127 ; aflBrmed, 1 N. Y. (1 Comst.), 515 ; Tifft ij. Tifft, 4 Den., Yli ; Vrooman «. Lawyer, liJ Johns., 339; Auchmutyo. Ham, IDen., 495 ; Kinion v. Davies, Oro. Car., 487 ; Mason «. Keeling, I £d. Raym., 606 ; Beck v. Dyson, 4 Gampb., 198 ; Dunckle 1). Kocker, 11 Barb., 387 ; Fairchild v. Bentley, 30 Id., 147 ; and see Buckley V. Leonard, 4 Den., 500. As to excep- tions in the ease of sheep killing, see 1 JJct. Stat., 704, § 9. But the common law holds a man answerable not only for his own tres- pass, but also for that of his domestic animals ; and as it is the natural and notorious propensity of many of such animals, such as horses, oxen, sheep, swine, and the like, to rove, the owner is bound at his peril to confine them on his own land ; and if they escape and commit a trespass on the lands ol another, unless through defect of fences which the latter ought to repair, the owner is liable to an action of trespass gn. el., though he had no notice in fact of such propensity. And in declaring against the defendant in an action for such trespass, it is competent for the plaintiff to allege the breaking and entering his close by such animals of the defendant, and there committing particular mischief or ini ury to the per- son or property of the plaintiff; and COMPLAINTS. 443 For Keeping Vicious Dog. [II. That the defendant, while he kept his dog as aforesaid, wrongfully and negligently suffered such dog to go at large, without being properly guarded or confined.] {k) III. That on the day of ,18 , at , the said dog, {1} while in the keeping of tlie defendant, attacked and bit the plaintiff, (m) and wounded him in the leg, whereby this upon proof of tlie allegation, to recover as well for the damage for the unlaw- ful entry as for the other injuries so alleged, by way of aggravation of the trespass, without alleging or proving that the defendant had notice that his animals had been accustomed to do such or similar mischief. The break- ing and entering the close is, in such action, the substantive allegation, and the rest is laid as matter of aggrava- tion only. Van Leuven d. Lyke, 1 JST. T. (1 Oomst.). 515 ; Beckwith 1]. Shor- dike, 4 Burr.. 2092 ; Angus ■a.Radin, 2 South., 815 ; Dolph v. Ferris, 7 Watts & 8., 367 ; Dunckle «. Kocker, 11 Barb., .387. And in an action for killing a dog, when the defence is that the dog was ferocious and accustomed to bite and attack mankind, it is not necessary, in order to maintain this defence, to prove that plaintiff had knowledge of the animal's propensity. Maxwell «. Palmerton, 21 Wend., 407. An animal of this description, allowed to run at large is a public nuisance, and may be destroyed by any one. Putnam o. Payne, 13 Johns., 312 ; Hinckley v. Emerson, 4 Cow., 351 ; Loomis v. Terry, 17 Wend., 496. And so of a dog which has been lately bitten by a mad dog. Putnam «. Payne, 13 Johns., 31 2. The rule is not so strong, however, where the vicious habit of the dog extends only to the worrying of other animals, or to similar mischief not af- fecting human safety. Compare on tliis subject Hinckley v. Emerson, 4 Cow., 351 ; Brill «. Flagler, 23 Wend., 354; Wadhurst «. Damme, Gi'o. Joe., 45; Barrington K.Turner, Z.Lev., 28; Wright V. Kamscott, 1 Saund., 84 ; Brock 1). Copeland, 1 E^., 203 ; 1 Jieii. Stat., 704, §§ 9-20. [Ic) In the form of declaration given by Mr. Chitty (2 Chit. PL, 596), no averment of negligence of defendant in the mode of guarding the dog is in- serted, the action being based upon the mere keeping of the animal. But the author suggests that it may be advisa ble to add a count for not keeping the dog properly secured, or properly fed. As a general rule, the wrong which is the basis of plaintiff's action will be the defendant's neglect to take proper precautions for the custody of an ani- mal which he had a right to keep if properly secured, rather than the bare keeping of an animal so ferocious that the owner was bound by law to destroy him. We recommend, therefore, the use of paragraph 11. in the complaint, though the action may be considered as mainfainable without it. (I) Where a mischief is done by two dogs, owned by different persons, the owners cannot be jointly sued. Each is liable for the mischief done by his own dog, but not for that done by the dog of another, unless he himself had some agency in causing the dog to do it. Van Steenbergh v. Tobias, 17 Wend., 562; Russell v. Tomlinson, 2 Conn., 206 ; Adams v. Hall, 2 Vt., 9. (m) Cases in which the injury has been to an animal owned by plaintiff, instead of to the person of plaintiff, are Lyke v. Van Leuven, 4 Den., 127 ; af- firmed, 1 IT. 7. (1 Gomst.), 515 ; Tifft d TiSt, 4 Bm., 175 ; Wiley v. Slater, 23 Barh, 506 ; Wheeler v. Brant, 23 Id., 324 ; Earl v. Van Alstlno, 8 Id., 630. 4-t4 ABBOTTS' FORMS. Actions for Damages caused by Negligence. plaintiff became lame, and so remained for weeks, and was tlierebj occasioned great pain, and prevented from going oil witli his business as , and was obliged to, and actually did expend dollars in endeavoring to heal himself of said wound, to his damage dollars. 533. For Keeping a Dog Accustomed to Bite Sheep and Other Anim.als. I. That at the time hereinafter m'entioned, the defendant wrongfull}' kept a dog [well knowing him to be accustomed to hunt, chase, bite, worry, and kill sheep and lambs], («.) which said dog, on the day of ? 18 , and on other days between that and the commencement of this action [wrongfully came upon the plaintiff's land, a,nd there] hunted, chased, bit, and worried sheep and lambs of the plaintiff, being of the value of dollars. ir. That by means thereof of the said sheep and lambs of the plaintiff, being 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, to his damage dollars. 53i. For Keeping Open a Dangerous Hatchway^ Through Whiph Plaintiff Fell, {o) I. That the defendant, at the time hereinafter mentioned [was the owner (jc) and] had possession and control of a certain building and premises [briejly designate them^, with the appur- (n) These words in brackets are un- port v. Euckman, 16 Abbotts' Pr., 341 ; necessary in ah action in this State ; and see Rosewell ■». Prior, 2 Salk., 460. proof of notice being dispensed with in Wliere the ownership and the occu- such cases by 1 Rev. Stat., 704, § 9. pancy are united in one person (as in (o) For form of a declaration for in- the supposed case above), the complaint juries sustained by going up a danger- should so state. Where they are sev- ous ladder, see 3 Marl, cfc N., 258. ered, the actual occupant is prima facie (p) The action should be brought liable, because, being in possession, he against either the owner or the actual is better aware of the condition of the occupant of the building ; not against building and of its need of repair. The an intermediate lessee, except where owner of leased premises is not in gen- he leased the building, suffering its eral liabJe. Cheetham v. Hampson, 4 dangerous condition to remain. Daven- T. R., 318. But if the plaintiff can COMPLAINTS. 445 For Keeping Dangerous Building. tenances thereto belons'ino;, which bnildins' was then occupied by him as [briefly denignate the uses of the building^ if a public resorf]. (q) II. That said building was negligently and carelessly built, inasmuch as there was in the public hall in the second story of the same [at the time of its erection and leasing by the defend- ant, as well as] at tlie time hereinafter mentioned, an un- guarded iiole or hatchway through the floor, opening into the tirst story. III. That the defendant, well knowing the premises, and while the owner and occupant [or, while the occupant] of said building, did, on the day of , 18 , negligently and wrongfully leave the same uncovered and unprotected, by means whereof the plaintiff, who was then lawfully in said building, (r) and in the pursuit of his business [or, by the per- show that the owner was bound as against his tenant to make repairs, the action may be maintained against the owner himself, by the party injured, to avoid circuity of action. Payne d. Rogers, 3 E. Blaekst., 349. The liabili- ty of the owners to make repairs must be shown by the complaint. A com- plaint against the owner of premises leased to a third person, to recover damages sustained by plaintiff by the falling of a part of tlie 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 «. Mann, 5 Ab- iotts' Pr., 91 ; and see Howard i). Doo- little, 3 Duer, 404. And if it is sought to make the de- fendant liable on other grounds than those of negligence, such as that the place of danger is within a public ftreet, or that a duty imposed by some municipal ordinance has been violated, those grounds should be stated in the complaint, so that issue can be taken upon them, and the defendant may come prepared to try those issues. Con- greve «. Morgan, 4 Buer, 439 ; 5 Id., 495. (q) If the building was a place of public resort, — e. g., a railroad depot, a, bank edifice, a store, or the like, — it is well so to describe it, as that fact will aid the plaintiff to make out, as he must, that his presence in the building at the time of the accident, and at that part of it where the accident happened, was lawful. Wtere the place was a private dwelling, the action would seem to be maintainable by one en- titled to enter ; both on general princi- ples, and on the grounds on wliich re- covery was allowed in Bird ®. Holbrook, 4 Bing., 638 ; S. C, 15 Eng. Com. L. B., 91. (r) An averment that plaintiff was lawfully in the building, &c., will be sufficient where the building is of a public character. But if the injury happened in a private dwelling or the like, plaintiff should, for greater cer- tainty, aver that he was present by re- quest of defendant, or by permission of defendant ; or should otherwise show that he was rightfully present. See the form of declaration in Casswell «j Worth, 84 Eng. L. & E., 141. •1:46 ABBOTTS' FORMS. Actions for Damages caused by Negligence. mission of the defendant], then and tliere necessarily and care fully passing along said hall, fell through said hatciiway. (s) lY. That by means of the premises the ]jlaintiff was greatly liurt and injured, and became sick and lame, and so remained for a long time [or, so still remains], and was during the space of prevented from attending to his business as , and was compelled to, and did expend dollars in endeavoring to be healed of his said injuries [or otherwise state injuries tc plaintiff according to the fact'], to his damage dollars. 535. Against a Municipal Corporation, for Neglect of an Excavation in the Streets. I. That the defendants are a municipal corporation, duly oi'ganized under the laws of this State. II. That, among other things, it is by their charter made iheir duty to keep the streets in said city in good order, and a-t all times properly protect any excavations made in said streets. That they accepted said charter imposing said duty, and un- dertook the performance thereof prior to the year 1855. III. Tliat a certain street in said city, known as , was and is much travelled and used by the citizens thereof and others; so much so, that said duty of said defendants as to said street was, and became at the time hereinafter mentioned, a matter of public and general concern. IV. That on or about the day of , 18 , a deep and dangerous hole or trench was excavated in said street, and suffeied by the'defendants, during a night on or about said day, to remain open, exposed, and without proper protection or no- tice to citizens and travellers aminst accidents. V. That the> plaintiff on the night aforesaid was lawfully travelling on said street, and, wholly unaware of danger, was ac- cidentally, and without fault or negligence on her part, pre- cipitated into said hole, whereby she received great bodily in- jury, and was made sick, sore, lame, and disabled for the space of ; during all which time she thereby suffered great («) It is a familiar rule that in ac- negligence xipon the defendant. Spen tion.'i of this description the plaintiff cer v. Utica & Schenectady R. R. Co., 5 must be free of fault, as well as prove Barb., 337, and cases cited. COMPLAINTS. a J For Rendering Highway Insecure, pain, and was thereby then and there hindered from attending to her business and domestic affairs, and has ever since re- mained and continued sick, sore, lame, and disabled ; and was put to great expense in trying to be cured, and has suffered, and still continues to suffer great pain of body by means of such injuries, to her damage dollars. 536. Against a Contractor, for Zeaving the Street in an Insecure State, whereby Plaintiff'' s Horse was Injured. I. That at the times hereinafter mentioned, the defendant had taken upon himself [or, had agreed with the trustees of the village of to lay down pipes in and under the high- way [known as street] in , for the purpose of light- ing the said highway with gas, and to make the proper trenches for the purpose ; and when such pipes were laid down, to till up properly the said trenches, and to put and leave the said highway clear and in a reasonably secure condition. II. That the defendant and his servants, on the day ut ,18 , accordingly 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 iiighway, and so carelessly and negligently filled said trenches, and left the said highway in so dangerous and improper state, that a horse of the plaintiff, of the value of dollars, wliich he was then and there lawfully driving along the said highway, sunk and fell therein-, and was wounded and lamed, and rendered of little or no value, to the plaintiff's damage dollars. 537. For Laying Rxibbish in the Street, Whereby Plaintiff was Thrown Out of his Carriage. I. That the defendant, on or about the day of , 18 , wrongfully placed large quantities of building materials and earth in the public highway [known as street] in, , and negligently left the same therein, obstructing the hio-hway during the night-time, and without placing any light or signal there to indicate danger. II. That in consequence of said negligence and improper conduct of the defendant, in the night-time of that day, the car- riage of the plaintiff, of the value of dollars, with the i48 ABBOTTS' FORMS. Actions for Damages caused by Negligence. l)laintiff therein, then passing through said street, was acci- dentally driven against the said obstructions, and was thereby overturned ; by means whereof the plaintiff was bruised and wounded [conclude as in other forms]. 538. For Flowing Water from Roof orb Plaintiff^ s Premises. if) I. That on the day of ,18 , the plaintiff was lawfully possessed of a dwelling-house and premises, situate in the county aforesaid, and in which the plaintiff and his family then resided. I II. That the defendant wrongfully erected a building near to the said dwelling-house of the plaintiff, in so careless and im- proper manner that by reason thereof, on said day, and on 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, paper- ing, and other parts thereof were thereby wet and damaged, and became less tit for habitation, to the plaintiff's damage dollars. 539. For Carelessly Kindling a Fire on Defendant's Land., whereby Plaintiffs Property was Burned. I. That on the day of , at , the plaintiff was [and still is] possessed of about of land, in , on which there was an orchard and fences, and also a barn con- taining sixty tons of hay, all which the defendant well knew. II. That the defendant on that day intentionally kindled ()*) a tire on his land next adjoining to the plaintiff's, and at the distance of from the plaintiff's said land, and so negli- gently watched and tended the said fire, {v) that it came into the plaintiff's said land, consumed said barn and hay, of the value of dollars, and also forty-five rods of post and rail (i) Tliis form, and the following one, merely owner of the property where are from Swan's PL, 433. ' it originated, is the one liable. Burckle (m) If the fire began accidentally, it v. N. Y. Dry Dock Co., 2 Hall, 151. seems that the action will not lie. Lan- («) Negligence of the defendants or sing i\ Stone, 37 Barb., 15 ; S. C, 14 his servants must be shown. Clark «. AUbotts' Pr-.l'i^. The one who kindled Foot, 8 -7bA7!«., 431 ; Stuart v. Hawley, ■/he fire, and not the one who was 33 Barb., 619. COMPLAINTS. 449 For Undermining Land and Buildings. fence, of the value of dollars, and killed forty fruit-bear- ing apple-trees in said orchard, and consumed and destroyed the plaintiff's grass growing on said land, to his damage dollars. 540. For Undermining Plaintiff'' s Land. I. That at the times hereinafter mentioned, the plaintiff was possessed of certain pasture-land, being a part of his farm in the town of, &c. \or other irief designation^. II. That in the month of IS , the defendant wrong- fully and negligently excavated the land adjacent to the plain- tiff's said land, and took away soil therefrom, 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 dam- age of the plaintiff dollars. 541. The Same., where Plaintiff is the Reversioner. I. That at the times hereinafter mentioned, the plaintiff was, and still is, (w) the owner of certain land [designate it, as ahove\ which was then in the occupation of M. N., as tenant thereof to the plaintiff. II. [^As in preceding form.'] 542. The Same, where Plaintiff'' s Buildings were Undermined. I. That at the times hereinafter mentioned, plaintiff was pos- sessed of certain land, with buildings thereon, being his house and lot in the village of [or other hrief designation of the premises']^ which were s^ipported by the adjacent land and the soil thereof, and that the plaintiff was entitled to have them so supported, (a;) , (w) As to whether the averment that buildings (Peyton ■e. Mayor, &c., of Lon- plaintiff is stiU owner is necessary, see don, 9 Barn. & C, 725), is not necessa- liobinson ■». Wheeler, 25 N. T., 252. ry in the case of the natural right to As to what a, landlord may recover support for the soil. Earl of Lonsdale in such action, see Bno ■». Del Vecchio, «. Littledale, 2 H. Blackst., 367 ; Hum- 4 Buer, 53. phries v. Brogden, 12 Q. B., 740 ; S. C, {x) Alleging the right to support, 44 Eng. Omn. L. R., 738. Compare which it is necessary to do in the case Hilton ■». Whitehead, 12 Q,. B., 734 ; of an acquired right to support for S. C, 44 Eng. Com. L. B., 733. Vol. I.— 29 i.50 ABBOTTS' FORMS. Actions for Damages Caused by Negligence. II. Tliat in the month of , the defendant wrongfully and negligently excavated the land adjacent to plaintiff's said land and buildings, and took away the soil therefrom, without leaving proper or sufficient support for the plaintiff's said land and buildings, whereby the same sank and gave way, and the house fell in and was destroyed, and the goods of the plaintiff were damaged and broken ; and the plaintiff incurred expense in procuring another house, and in removing and repairing his goods, and in removing the ruins of the house and rebuilding the same, to his damage dollars. 543. For Negligence of Mill Owners, whereby Plaintiff ^s Land was Overflowed, {y) I. That on the day of , the plaintiffs were [and still are] the owners of a valuable mining claim [or, lands and mines thereon], situated at , upon which they had bestowed great labor in putting the same in working order, and had incurred large expense in the purchase of tools for the pur- pose of extracting gold therefrom. II. That at the same time the defendants were engaged in furnishing water to miners and others, by means of a ditch or canal ; and they were the owners of \or, were possessed of, and using] a reservoir situated on , wherein they collected a large body of water, which water would otherwise have flowed down the said stream. III. That afterwards, and on the day of ,18 , the plain- tiffs being engaged in the prosecution of their work as aforesaid, the defendant's said reservoir, by reason of some defect in its -construction, insufficiency for the purpose for which it was con- structed, or carelessness and mismanagement on the part of the defendants, broke away, discharging an immense and unusual body of water, wliich they had collected in said reservoir ; which said water so discharged flowed in and npon plaintiffs' mining iy) Thi? form is sustained by Hoff- is described in the alternative. Wlieth- man v. Tuolumne County Water Co. er the negligence was in one or another (10 Cal., 413), and by Tuolumne Water particular, it does not require separate Co. «. Columbia, &c., Water Co. {Id., counts. Hoffman b; Tuolumne County 193). It is no objection that the respect Water Co., supra; S. P., Gale v. Tuo- in which the defendants were negligent lumne County Water Co., 14 Id., 35 COMPLAINTS. 451 For Cutting Fruit-trees on Plaintiff's Land. claim [or, lands and mines], filling the same witli great quantities of earth, stone, and rubbish, and carrying off and destroying the lumber and tools used by the plaintifi's in working and mining the same, to plaintiffs' damage dollars. 544. Against the Citij of New York, to recover Damages to Fruit-trees, done hy Negligence of Public Servants, {z) I. That the defendants are a municipal corjDoration, duly incorporated under and by virtue of the laws of the State of New York. II. That at the times hereinafter specified they were, and still are, the owners of [designating defendant's land], being land upon wiiich the Croton Aqueduct is constructed. III. That the plaintiff, in and during the year 1857, was the owner in fee of [designating his land], bomided by and adjoin- ing the said lands of the defendants. IV. That prior to January-, 1857, aforesaid, there were upon the lands of the plaintiff, near and in a line parallel, or nearly parallel, with the northwesterly line of the defendant's said lands, seven large fruit-trees, bearing very choice fruit, and of great value, as well for ornament and shade as for fruit, which trees greatly enhanced the value of the said land ; and that there were also near the said fruit-trees other and similar fruitrtroes upon the defendant's said lands. V. That in the said year 1857, and prior to the wrongful acts of the said defendants hereinafter set forth, the said defendants, through the officers of the Croton Aqueduct Department, in tiie discharge of their duties in the care and management of the said Croton Aqueduct, directed their agents and servants to cut down and remove from the said Croton Aqueduct lands all the trees thereon, and employed divers agents and servants to per- form that work, (a) (z),Thia form is sustained by Carman Minn., 303), it was Held, that in an ao- ti. Mayor, &c., of N. Y., 14 Abbotts' Pr., tion against a corporation for wrongful 301. acts done by its agents, it is generally As to trespass against an iadjoining sufficient to allege that the acts were owner for destroying living trees, see done by the corporation, withovjt men- Dubois V. Beaver; 3o N. Y., 133. tioning agents. It is not improper, (a) In Gould v. Sub-district No. 3 (7 however, to state it as above. 4-52 ABBOTTS' FORMS. Actions for Damages Caused by Negligence. VI. That tliereafter the said agents and servants of the said ' defendants entered upon the performance of the said work so directed to be done by the said defendants, bat by reason of the carelessness, nnskilfulness, and ignorance of their said agents and servants, and their want of knowledge of the lines of the said Croton Aqueduct lands, and the negligence of the said defendants'in not having the said work superintended, managed, and directed by competent and discreet engineers, or other per- sons conversant with, the boundary lines between the lands of the plaintiif and those of the said defendants, the said first- mentioned fruit-trees were wholly cut down, destroyed, and carried away from the lands of the plaintiff by the said agents and servants of the said defendants, and the said plaintiff's lands were greatly damaged and injured, — to wit, in the sum of one thousand five hundred dollars. VII. And the plaintiff further shows that heretofore, and on or about the 21st day of August, 1861, he presented in writing to the oomptroller of the city of New York the claim hereinbe- fore set forth, upon which this action is founded, for adjustment, and that at least twenty days have elapsed since the presenta- tion of the said claim for adjustment as aforesaid. VIII. And the plaintiff further shows, that heretofore, and on or about the 27th day of September, 1861, and after the expi- ration of the said twenty days from and after the presentation of the said claim to the said comptroller, as aforesaid, he made a second dem'and, in writing, upon the said comptroller for the adjustment of the said claim, but the said comptroller has hith- erto wholly neglected and refused to make an adjustment or payment thereof. 545. Against Owner of Yehicle Negligently Driven hy Servant against Plaintiff ^s Vehicle; — Sliowvng Damage to Person and Property! I. That on the day of 18 , the plaintiff was , riding along the public highway, in the town of , in a chaise, drawn by a horse, both the property of the plaintiff, (5) of the value of dollars. (6) Under this averment plaintiff recover accordingly. See Gorum jj. may prove a special property, and may Carey, 1 Aiiotts' Pr., 385. COMPLAINTS. 453 For Railroad Collision. II. That the defendant was then the proprietor of a stage and four horses, which were then passing along said highway in the possession of defendant [or, of defendant's servant], who was driving the same. III. That defendant [or, that said servant] so carelessly drove and managed said stage and horses, that by reason of his negli- gence said stage struck the plaintiff's chaise, and overthrew and broke tlie same, and threw down the plaintiff's horse, breaking his leg, and threw the plaintiff out of his chaise upon the ground [or otherwise describe the accident according to thefaci], where- by the plaintiff was bruised and wounded, and was for days prevented from attending to his business, and was put to great expense in repairing his chaise and in endeavoring to be liealed of his own hurts, and he was obliged to kill his said horse in consequence of his leg being broken as aforesaid, to the damage of the plaintiff dollars. 546. Against Railroad Company for Collision with Plain- tiff''s Vehicle at a Crossing, (c) I. That at the time hereinafter mentioned, the defendants, a corporation duly organized under the laws of this State, were the owners of a certain railroad, known as Railroad, together with the track, cars, locomotives, and other appiirteu- ances thei-eto belonging. II. That on the day of 18 , while the plaintiff was travelling in a wagon drawn by two horses, all the property of the plaintiff, and of the value of dollars, along the public highway from to , which public highway crosses the railroad aforesaid at a place called ; 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 and there to pass rapidly over the track of said railroad, and negli- gently and carelessly omitted, while so approaching said cross- ing, to give any signal, by ringing the bell or sounding the steam-whistle, (i^) by reason whereof the plaintiff was unaware of their approach. (c) For complaint in an action by a (d) See Za«J«o/ 1850, 232, §39. As to pafiBenger, see Form 506, ante, 414. an averment that no signal was given 4:54: ABBOTTS' FORMS. Actions for Damages Caused by Negligence. III. That by reason of said negligence of the defendants the locomotive struck the plaintiff's horses and threw them down, killing one of them immediatelj, and so severely injuring the other as to make it necessary to kill him ; and also overset the plaintiff's wagon, breaking it so that it is worthless ; and also threw the plaintiff out upon the ground, with such force as to fracture his left collar-bone [or other consequences, according to thefact\. lY. Tliat thereby the plaintiff has been deprived of the use of said horses and wagon, and was put to great pain and to great expense in endeavoring to cure himself of said injury, and was and still is prevented from going on with his business as , and is, as he believes, permanently injured, so that ho will never be as strong or able to carry on said business as efficiently as befoi-e, and was otherwise greatly injured, to his damage dollars. 6i7. Against the Same, for Killing Cattle, {e) I. \_As in preceding form.] II. That on the day of 18 , the plaintiff was the owner and possessed of certain cattle, to wit [designating the-rri], of the value of dollars, and which cows and oxen casually, and without the fault of tlie said plaintiff, strayed in and upon the track and ground occupied by the railroad of the said defendant at M. III. That the said defendants, by their agents and servants, not regarding their duty in that respect, so carelessly and negli- gently ran and managed the said locomotive and cars, that the same ran against and over the said cows and oxen of the said plaintiff, and killed and destroyed the same, to the damage of the plaintiff dollars. 548. JBy a Servant of a Railroad Company, Injured iy Defectme Machinery .{f^ I. As in Form, 546. on approacWng the crossing, wliere ter & Syracuse R. R. Co., 16 Barb., 167 the action is founded on the provisions («) This form is from Nash's PL dt of this statute, see Wilson v. Roches- Pr., 335. COMPTjAINTS. 455 For Injuries Sastained by Employee of Railroad (pompany. II. That the plaintiff, on the day of 18 , at the time of the committing of the grievances hereinafter mentioned, was in the employment of the defendants, as fireman upon a locomotive-engine, the property of the defendants, di-iven by steam upon their road ; {g) and it was the duty of the defendants to provide a good, safe, and secure locomotive, with good, safe, and secure machinery and apparatus. III. That yet the defendants, not regarding their dutj', con- ducted themselves so carelessly, negligently, and unskilfully in this behalf, that they provided and used an unsafe, defective, and insecure locomotive, of which they had notice. (A) lY. That for want of due care and attention to their duty in that behalf, on the day and at the place aforesaid, and while the said locomotive was in the use and service of the defendants upon their said railroad, and M'hile the plaintiff was on tlie sauie,(t) in the capacity aforesaid, for the defendants, the boiler connected with the engine of the said locomotive, by reason of unsafeness, defectiveness, and insecurity thereof, exploded, whereby large quantities of steam and water escaped therefrom and fell upon the plaintiff", Y. That by reason thereof the plaintiff became, and for a long time remained, ill ; and was obliged to, and did, expend about the sum of dollars in attempting the cure of him- self, and was for a number of weeks prevented from pursuing his business, and was otherwise injured, to his damage dollars. (/) Tliis form is sustained by Kee- the case of a railroad engineer injured gan V. Western R. R. Co., 8 Jf. T. (4 by an accident caused by the neglect of Seld.), 175. the company to maintain in repair (g) This is a sufficient allegation to fences, &c., along the line, — the plain- show that the relation of master and tiff must aver actual notice to the do- servant existed ; but a special contract feudants of the defect complained of, will not be'inferred from such an alle- especially where that defect was pecu- gation. McMillan v. Saratoga & Wash- liarly within his own knowledge. But ing^n R. R. Co., 20 Buh., '449. the contrary was held in Byron i). N. Y. (h) It was held in McMillan v. Sara- State Printing Telegraph Co., 20 Barb., toga and Washington R. R. Co. (20 39. Barb., 449), that in an action to recover (i) The plaintiff need not aver that damages sustained by an agent or ser- he had no notice of the defect In- vant, by reason of a defect arising from dianapolis R. R. Co. v. Klein, 11 Ind., the negligence of his employer, — e. g., 38. 456 ABBOTTS' FORMS. Actions for Damages for Injuries Respecting Personal Property. Section XIX. COMPLAINTS IN ACTIONS FOE INJUEIES EESPECTING PEESONAL PEOPEETY. [An allegation that the plaintiff was in possession, imports tliat his posses- sion was lawful. («) So, too, if the facts show an illegal taking of the goods, it is not essential to designate the act as " wrongful" or '' unlawful." (b) Jf the complaint alleges a forcible and wrongful taking of goods from the possession of the plaintiff, he need not allege or prove ownership of the goods, (c) An averment of the value of the property converted, is not material, is not traversable, though it is usual, and not improper, (d) In an action to recover damages for the wrongful detention of personal property, it is not necessary to set forth the plaintiff's title in the complaint. A general averment of ownership is sufficient ; and under it a bOl of sale from the former owner may be given in evidence. {«) In an action against an agent for an actual and wrongful conversion, it is proper, hut not necessary, to allege the agency or how the defendant be- came possessed of plaintiff's property : if this is alleged, the action will be regarded as founded on the tort, and the contract as being stated simply as matter of inducement. (/) , 549. For conversion (trover) p. 457 550. The same, by assignee after conversion 458 551. The same, by an administrator 459 553. By seller against fraudulent buyer of goods ; — for damages for the con- version , 459 (a) Sheldon v. Hoy, 11 Sow. Pr., (e) Heine «. Anderson, 2 Buer, 818. 11. If the plaintiff prefers to aver the (6) In an action in the nature of tres- source of his title, he should, if it be pass de honis, the complaint need not one like mortgage (the validity of designate the taking as " wrongful" or which is a question of law), set forth or " unjust," if the facts alleged show that annex either the whole instrument, or it was. The allegation " wrongful" is those provisions which are relied on as a coiiclusion of law. Buck v. Colbath, giving to it the character of a mort- 7 Minn., 310 ; Adams v. Corriston, Id., gage. Fairbanks v. Bloomfield, 2 Buer, 456. 349. (c) Kissam ?). Roberts, 6 Bosw., 154, (/) Samuel «. Judin, 6 EaM, 333 ; and cases there cited. Ridder v. "Whitlock, 12 How. Pr., 208 ; (d) Bac. Abr., tit. Tresp., I. 2, and Frost v. McCargar, 39 Bari., 617 ; An- Trov., F., 1 ; Connoss v. Meis, 2 E. B. drews v. Bond, 16 Id., 633. For com- SmitJi, 314. It was held in Woodruff plaints alleging agency or contract, see V. Cook (25 Bari., 505), that under an ante, p. 479. averment in the complaint that the For the allegations of a complaint in value of the property in suit was about an action against an agent intrusted a specified sum, though not contro- with plaintiff's moneys, who fraudu- verted by the answer, defendant might lently obtained a release, see Gould ». show the true value of the property. Gould, 36 Barb., 270. COMPLAINTS. 45 i Conversion of Goods. Trover. 553. For conversion of a promissory note p. 459 5.54. For conversion of a bond ; by assignee after conversion 461 555. For unlawfully taking and carrying away plaintiff's goods (Tres- pass) 463 556. The same, tlie plaintiff liaving regained possession before suit brought. 463 557. For seizing a vessel 463 558. By mortgagee of chattels, against sheriff, for selling them on execu- tion against a third person 463 559. For malicious injury 465 5G0. The. same, claiming increased damages under the statute 465 561. Against city or county for damages done by mob or riot 466 563. For chasing plaintiff's cattle 467 563. For shooting plaintiff's dog 467 564. For goods received contrary to statute 467 549. For Conversion {Trover). I. That before and until the time hereinafter mentioned, the plaintiif was lawfully possessed of \yery 'briefly designate the goods, (g) or, where he was not in possession, say, was entitled to the immediate possesion (A) of, designating the goods], his property, of the value of dollars, (i) •II. That on the day of , 18 , at , the de- fendant tlien being in possession of said goods, unlawfully con- verted and disposed of the same to his own use, (J) to the plain- tiff's damage dollars. (g) Where the property consists of Brown, 1 Vuer, 101. Possession, with- many articles, they may conveniently out an absolute vested interest, was be enumerated in a schedule or exhibit not sufficient to maintain trover. Tu- annexed to the complaint, and referred thill v. Wheeler, 6 Barb., 363. But it to as such. It is not necessary to state was sufficient to maintain trespass de their value severally. See Root v. bonis asportatis. Gelston i). Hoyt, 13 Woodruff, 6 HiU, 418. Johns.. 561 ; affirming S, C, Id., 141. {h) The plaiutifif must show, not {i) The averment of value is usual, only a property either absolute or but it is not material and not traverser special in the goods, but in addition, ble. Connoss v. Meir, 3 E. D. Smith, that he was entitled to immediate pos- 314. session. Unless both the right of prop- {j) This is a sufficient allegation of erty and the right of possession concur, the conversion ; it is not necessary to the action wiU not lie. Thus it does set out the manner in which the de- not lie in favor of a lessor of chattels fendant converted the property. Decker during the lessee's right of possession v. Mathews, 13 N. T. (2 Kern.), 313. (2 Selw., N. P., 1385, and cases cited. See, also. Hunter v. Hudson River Iron note x). The special property must & Machine Co., 20 Barb., 493. To the arise from possession. Hotchkiss «. same effect is Esmay v. Fanning, 9 Id., McVickar, 12 Johns., 408 ; McCurdy v. 176. 458 ABBOTTS' FORMS. Actions for Damages for Injuries Kespecting Personal Property. 550. The Same, hy Assignee after Conversion. (Jc) I. That before and until the time ifereinafter mentioned, one M. N. was lawfully possessed of [verij briefly designate the goods'], [or, was entitled to the immediate possession of, desig- nating the goods, (&c.], the property of the said M. N., of the value of dollars. II. That on the day of , 18 , at , the de- fendant being then in possession of said goods, unlawfully con- verted and disposed of the same to iiis own use, to the daipage of said M. JST. dollars. III. That on the day of , , 18 , said M. N. duly assigned {I) to tlie plaintiif his claim against the defendant for damages for said conversion. (A:) A claim for damages arising from the wrongful conversion of personal property, is a chose in action that is assignable (People v. Tioga C. P., 19 Wend., 73), and under the Code the as- signee may sue upon it in his own name. Such a claim wiU pass by a general assignment in trust for the payment of creditors. And a new de- mand by the assignee is unnecessary. McKee i). Judd, 12 N. Y. (2 Mm.), 622. But until an actual conversion of the chattel, amounting to the destruc- tion of its identity, or a parting with the possession of it by the wrongdoer, the owner may assign his title to the chattel instead of his claim to damages, and the assignee may either proceed as ownoV in an action for the possession, or to recover damages for its detention. In the latter case, the complaint must show an assignment to the plaintiff of the original owner's claim for damages ; or if it shows an assignment of the property only, it must aver a demand thereof by the plaintiff subsequent to the assignment. HoweU v. Kroose, 3 Albotta' Pr., 167; Sherman v. Elder, 1 Silt., 178. See, also, Duell v. Cudlipp, Id., 166. Compare Heine v. Anderson, 2 Duer, 318 ; Thurman v. Wells, 18 Barb., 500. The plaintiff cannot, upon a com- plaint charging a conversion of per- sonal property after its assignment to him, recover for a conversion before its . assignment. The case is not that of a variance, but the causes of action are entirely distinct. Whittaker v. Merrill, 30 Barb., 389. {I) It is not necessary to allege the consideration of the assignment, al- though such assignment was made after the conversion and during the de- tention. Vogel V. Badcock, 1 Abbotts' Pr., 176. In an action by an assignee before the conversion, it is not necessary to set forth his title in the complaint. A general averment of ownership is suf- ficient, and under it a bill of sale from the former owner may be given in evi- dence. Heine v. Anderson, 2 Bui;; 318. COMPLAINTS. 459 By Administrator. Fraudulent Buyer. Conversion of Note. 551. The Savie, hy an Administrator, {in) I. [A» ill preceding form. '\ II. That on the day of , 18 , the same came into the possession of the defendant, who, though .on the day of , 18 , requested so to do by said M. N. \or, by the plaintiff], would not deliver the same to him, but then and ever since wrongfully detained the same. III. That thereafter and before this action [or, on the day of ,18 ], said M. IST. died intestate, and on the day of , 18 , letters of administration upon the estate of said M. N., deceased, were duly issued and granted to the plaintiff by the surrogate 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 qualiiied as such administrator, and entered upon the discharge of the duties of his said otHce. 552. Sy Seller against Fraudulent Buyer of Goods, for Dam.ages for the Conversion, {n) Allege sale obtained hy fraud, as in I., IT., and III. of Form 524. IV. That the defendant, having so obtained from the plain- tiff the possession of said goods, unlawfully converted and disposed of them to his own use, {o) to the damage of the plain- tiff dollars. 553. For Conversion of a Promissory Note, {p) I. That on tlie day of , 18 , at , the plaintiff made his promissory note, of which the following is a (m) TMs form is supported by Sliel- are not necessary to charge the defend- don V. Hoy, 11 How.Pr., 11. ant with a conversion; but vfliere the («.) Perhaps a complaint in this case, plaintiff has received part payment, he if in the ordinary form lor conversion, may be bound to offer to return it be- might be obnoxious to a motion to fore suit. Compare Wheaton i). Baker, make more definite and certain, by re- 14 Barh., 594 ; Ladd «. Moore, 3 Sandf., quiring the plaintiff to set forth the 589. circumstances as above. Hunter v. (p) This form is supported by Decker Hudson Kiver Iron & Machine Co., 30 v. Mathews, 13 if. T. {2 Kern.), 313 ; S. Barb. 493. C., 5 Sand/., 439, and cases there cited. (o) in this case a demand and refusal Under such a complaint, the plaintiff 460 ABBOTTS' FORMS. Actions for Damages for Injuries Respecting Personal Property. copy : (y) [or, liis promissory note dated on that day, whereby lie promised to pay dollars to the order of M. N., months from date], (r) which note was made and delivered by the plaintiff to M. E"., M'ithout consideration, and for his ac- commodation,- and with the special purpose and agreement between the plaintiff and said M. N. that it should be offered by said M. N. to the O. P. Bank for discount, and the pro- ceeds thereof, if any, should be applied by said M. IS", to the payment of a certain other note theretofore made by the plain- tiff for the accommodation of said M. N., dated [&c., desorib- ing note], and that otherwise it should be returned to this plaintiff". II. That said iirst-mentioned note was thereafter offered by said M. N. to the 0. P. Bank for discount, who refused to dis- count the same, and returned it to the said M. N., whereupon the plaintiff became eotitled to the possession thereof [or state other circumstances showing failure in tJie intended appropria- iion of the note, as the fact was\. III. That thereafter, but before the maturity of the note, the defendant, W. X., without the knowledge or consent of the plaintiff or of M. N., unlawfully took said note from the pos- session of M. N., and delivered it to the defendant Y. Z. ; and that the defendants thereupon wrongfully converted and dis- posed of it to their own use, by transferring it to a purchaser, in good faith for value, before its maturity [or, converted and disposed of it to their own use, whereby the plaintiff was com- cannot recover the proceeds of the note Dows «. Bignall, WU & D. Supp., 407. as money had and received. Andrews v. In an action to recover possession of a Bond, 16 Barb., 633. written instrument, it was held that (g) In trover for a bond or written the question as to whether the instru- instrument, the plaintiff cannot be held ment was one which could be shown to an exact description, but he should by extrinsic proof to be of any value, name the parties to it, and his declara^ was a question of law ; and a copy of tion should show that it was an instra- the instrument being set out in,' or an- ment in writing. Pierson v. Townsend, nexed to the complaint, the question 2 Hill, 550. must be raised by demurrer, not mo- Bank-notes may be described as fol- tion. Knehue «. Williams, 1 Diuer, 597. lows: — " Certain bank-notes, commonly (r) If the plaintiff cannot state the so called, issued by the Bank, one exact amount of the note converted, he of the incorporated banks of this State, may state it as " of great value, to wit, to wit, ten thousand of said bank-notes, the value of," &c., designating a sum. of the denomination of one dollar." Bissel v. Drake, 19 Johns., 66. COMPLAINTS. 461 For Conversion of Bond. pelled to pay it], (s) to the damage of the plaintiff dol- lars, (t) 554. J^or Conversion of a Bond; hy Assignee after Conversion. I. Tliat in or about the month of , 18 , at , one M. N. being the owner of a bond, a copy of which is annexed as a part of this complaint, by his agent, at the request of the defendant, deposited it with the defendant for the purpose of enabling liim to ascertain the value thereof, upon an agreement between hini and said M. N., that on ascertaining the value, he would either buy the same from the said M. N., and pay him the value thereof, or would return it to him upon demand. II. That after a reasonable time for ascertaining the value thereof, and on the day of , 18 , at , said M. N. duly demanded from the defendant the said bond, or the value thereof; but the defendant, thoug* admitting that it was in his custody or under his control, refused either to return it or to pay its value to the said M. N., to his damage dollars. III. That on the day of , IS , at , the said M. N. duly assigned to the plaintiff the said bond, to- gether with all his right of action against the defendant and all other persons, to recover its value, or its possession, or said damages. IV. That the value of said bond, at the time of the com- mencement of this action, was dollars. ^ _____ («) A complaint by tlie maker, of a N. T. (3 Kern), 313. The fact that the negotiable note, against a person who, plaintiff has regained possession, be- before the note has any legal inception, fore suit brought, is no defence to an wrongfully negotiates it to a iona-fide action for the conversion. Murray ii. holder for value, need not aver pay- Burling, \(> Johns., 172. It only goes ment. to the mitigation of damages. Reynolds And alleging that the defendant v. Shuler, 5 Cow., 323 ; Connah i). Halo, wrongfully converted and disposed of 33 Wend., 463. it to his own use, 'vvithout saying in (f) The amount of the note is prima express terms that it had passed to the facie the measure of damages. IngaUs hanfls of a bona-fide holder, is suiBcient v. Lord, 1 Cow., 340 ; Decker v. Matb- after verdict. Decker v. Mathews, 13 ews, 5 Sandf., 439. 462 ABBOTTS' FORMS. Actions for Damages for Injuries Respecting Personal Property. 555. For Unlawfully Taking and Carrying away Plaintiff's Goods {Trespass). That on the day of , 18 , at , the defend- ant nnlawfullj took from the possession of the plaintiff, and carried awaj' [here briefly designate the goods'] the property of the plaintiff, of the value of dollars [and still unlawfully detains the same from the plaintiff], to his damage dollars. 556, The Same, the Plaintiff having Regained Possession before Suit brought. I. That OM the day of , 18 , at , the de^ fendants unlawfully took from the possession of tlie plaintiff, and carried away \Jiere very briefly designate the goods'] the property of the plaintiff, of the value of dollars, and iin- lawfnlly detained the same from the plaintiff. II. That by reason of such unlawful taking and detention of said property, the plaintiff was injured, to his damage ■ dollars. [Or, was compelled to pay, and did, on the » day of , 18 , at , pay dollars to to obtain the return of the same, and, also, dollars for recartage and reweighing, and sustained other injury, to his damage dollars]. 557. For Seizing a Yessel. I. That the plaintiff is, and at the time hereinafter mentioned was, the owner of [designating the vessel], her tackle, apparel, and furniture, and that he had chartered the same to one M. N"., for a voyage from to , and back, for dollars per month. II. That when said vessel was at , engaged in her voyage aforesaid, and in the possession of O. P., her master, appointed by the plaintiffs, the defendants, on' or about the day of 5 18 ? forcibly seized the same with her apparel, furniture, and cargo,~of the value of dollars, and brought the same to .{iC\ COMPLAINTS. 46?. By Mortgagee, against Sheriff, &c., for Selling. III. That by means thereof the plaintiff has lost the said vessel, her apparel, equipments, and furniture, and the money which he was to receive for the charter for the period of months, and has been put to great cost and expense in and about asserting and maintaining his riglits to said vessel, her tackle and furniture. 558. By Mortgagee of Chattels^ Against Sheriff ; for Selling them on Execution against a Third Person, (u) I. That on or about the day of > 18 , one M. N". executed and delivered to the plaintiff a chattel -mortgage [of which a copy is annexed as a part of this complaint] ;{w) that the property mentioned and described in said mortgage and the schedule annexed consisted of a lithographic press, of the value of dollars, or thereabouts ; that said mortgage was made in good faith, and without intent to defraud creditors or purchasers, and was given to secure the payment to plaintiff of dollars, with interest from the date of said mortgage, which sum was theretofore loaned by the plaintiff to said M. N., and which he then owed the plaintiff. II. "yiiat the said M. N. is by trade or occupation a lithog- rapher, and was, at the date of said mortgage, actively en- gaged in business as a lithographer, and was dependent upon said business or occupation for support and a livelihood ; and (m) a complaint, in an action to re- against a sheriff for selling on execution cover the value of a vessel, which against the vendee goods which he had averred that the defendants had seized obtained by fraudulent representations, the vessel under an attachment issued see Marsh v. Backus, IG Barb., 483. under the laws of Connecticut, but did 'VlTien a sheriff is liable for the txos- not show or aver that the attachment pass or misfeasance of bis deputy, both was void, but merely concluded by may be sued jointly for such wrongful averringthat the defendants unlawfully act. Waterbury v. Westervelt, 9 iV converted the vessel to their own use, F. (5 Seld.), 598 ; King v. Orser, 4 was held bad on demurrer. Fairbanks Diter, 431 ; and see People v. Schuyler, ■D. Bloomtield, 2 Diier, 349. 4 iV. Y. (4 Comst.), 173. (») This Is, in substance, the amend- It is not necessary to set forth the cd complaint in Hull v. Carnley (1 Ab- sheriff s oflBcial capacity. Curtis v. Fay, botts' Pi., 158), modified by the addition 37 Barb., G4. of an averment that the mortgage was (w) That it is the better course to an- overdue. nex a copy of the mortgage in such a For the substance of the necessary case, see Fairbanks v. Bloomfield, 3 averments in a complaint by a vendor Duer, 349, 464 ABBOTTS' FORMS. Actions for Damages for Injuries Respecting Personal Property. that the said property so mortgaged was used by the said M. N. in the course of liis said business or occupation, and was essen- tial and requisite to him in his said business or occupation ; and that said property was left and 'remained with the said M. N., to enable hitn to prosecute his said business. III. That on or about the day of ,18 , a true copy of said mortgage was filed in the office of , in which said county, at the date of said mortgage, the said M. N. re- sided, (a?) IV. That on the day of , 18 j and before the levy and sale hereinafter mentioned, said sum of , with interest, became due, pui'suant to tlie terms of the mortgage [or if on demand^ the said sum of , with interest, was duly demanded from the said M. N. by the plaintiff], but said M. JST. failed to pay the same ; and thereupon, pursuant to said mort- gage, the plaintiff became the owner of said property, and entitled to the immediate possession and control of the same, (y) V. That thereafter, and on or about the day of , 18 , the defendant W. X. issued to the defendant Y. Z., sheriff of the city and county of New York, an execution against the property of tlie said M. E". ; and on the day of , 18 , the plaintiff caused a notice to be served upon said sher- iff, informing him of said mortgage, and of the default in the payment thereof, and that the plaintiff claimed the property therein mentioned. (a:) It was held in Moses ®. Walker the oflBcer or the' plaintiff in the execu- (3 Hilt., 536) that this allegation was tion, if, at the time of such sale, the not essential. mortgagor is entitled to remain in pos- {y) This averment is not contained session. To maintain such an action, in the complaint in Hull t). Carnley. the plaintiff must aver and prove that It was there merely alleged that the he had the actual possession, or right amount was due at the commencement of possession, at the time of the alleged of the action ; and it was held that the conversion. If in such a case the mort- defendants were hot liahle, inasmuch gagee has any remedy, it is only by an as the plaintiff had not, at the time of action founded on the special circum- the levy and sale, an immediate right stances of the case, setting forth the in- to the posseesion. jury to his contingent interest in the Neither before nor since the Code property, and claiming damages there- can an action in the nature of trespass for. Goulet d Asseler, 32 N. Y., 225 or trover be maintained by the mort- Compare Underbill n. Reinor, 2 Hilt., iragee of chattels, on account of the sale 319 ; Hall b. Samson, 19 How. Pr., if them upon execution, against either 481 ; Chadwick v. Lamb, 29 Barb., 518. COMPLAINTS. 465 For Malicious Injury to Goods. VI. That on or aboiat the day of > 1 8 , regard- less of said mortgage, the said sheriff wrongfully sold said [mortgaged jn'operty] ; and thereafter returned said, execution satistied. VII. That the said "W. X. directed said sheriff to make such levy and sale without regard to said mortgage, and agreed to indemnify him against any and all damage that might arise from said levy and sale ; and that after said sale he received the proceeds, or a portion thereof, to his own use and Benefit, (s) VIII. That since said sale the plaintiff has demanded of said sheriff the mortgaged goods, but he refused to deliver the same ; and that thereupon plaintiff demanded of the said sheriff the proceeds, or value ther*eof, of said property, \yaX he refused to pay over any part thereof, {a) IX. That by reason of the premises the plaintiff has been injured, to his damage dollars. 559. For Malicious Injury. That on the day of , 18 , at , the defend- ant, wilfully and maliciously intending to injure the plaintiff", cut, broke, mutilated, and defaced [or state other injury] certain [very hriefiy designating the things'], the property of the plain- tiff, of the value of dollars; and wholly destroyed the same [or, and greatly injured them, so that the plaintiff was obliged to expend dollars in repairing the same], to his damage dollars. 660. The Same, Claiming Increased Damages under the Statute, (b) That on the day of , 18 , the defendant ma- liciously and wantonly destroyed [or, injured, or, defaced, or- hotk] six ornamental trees, of the value of dollars, the property of the plaintiff, growing upon his land [in the high- way], at [by barking and girdling them, or otherwise {^ As to the liability of the attorney it was held not necessary to allege that who communicated: the directions of his plaintiff made demand before suit, client to levy, see Ford «. Williams, 13 (J) The statute of this State, which N. T. (3 Kern), 577. gives quintuple damages, is the Laws (a) In Moses b. Walker (3 EUt, 536), of 1853, 1055, ch. 573. Vol. I.— 30 466 ABBOTTS' FORMS. Actions for Damages for Injuries Kespecting Personal Property. state nature of injury, if they are not alleged to he destroyed] ; and maliciously and wantonly injured about fifty feet in length of fence, of the value of dollars, the property of the plain- tiff, on his land at , hy breaking off the pickets, so that the plaintiff was obliged to expend dollars in repairing it ; whereby the defendant, by force of the statute For the More Effectual Prevention of Wanton and Malicious Mischief, became liable to the plaintiff in the sum of \_five times the actual dam- age.] 561. Against City or County, for Damage done hy liEob or Riot, (c) I. That at and before the times hereinafter mentioned the plaintiff was the occupant of the store and basement, with appurtenances, in the building known as No. , in street, in , and therein he conducted a business as a gun- smith, and dealer in gnns, pistols, gun materials and fittings, and military equipments, fishing tackle, apparatus, and equip- ments. (<^) II. That on the day of > 18 , and less than three months before the commencement of this action, a mob of disorderly and riotous persons collected together in said \town\, and created a riot. III. That on said day the rioters broke into the plaintiff's said store and premises, and carried away therefrom and destroyed his goods and merchandise. [That a number of arti- cles he was able to and did save from the rioters, by concealing them in the said basement. That he used all diligence to pre- vent the bi-eaking open of his store and the destruction and injury of his aforesaid property, but was unable to prevent the same.] (e) IV. That on, &c., being apprised of a threat or attempt on tlie part of the rioters to destroy or injure his property, he im- mediately notified the mayor of said city \or, the sheriff of said (p) Tliis action is given by tlie Laws (e) It is not essential to deny negli- of 1855, 800, ch. 438. gence on the part of the plaintiff. (d!) As to whether the nature of Wolfe «. Supervisors of Eichmond, 11 plaintiffs business may affect the right Abbotts' Pr., 270 ; S. C, 19 How. i'r., to recover, see Blodgett v. City of Syra- 870. p.nse, 36 Barb.. 536. COMPLAINTS. 467 For Chasing Cattle. Slaooting Dog. Goods received Illegally. county ; or where the action is against the mayor or sheriffs notified the defendants] of all the facts brought to his knowledge in relation to snch tlireat or attempt. Y. 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. yi. That the value of his said goods and chattels so destroyed or injured by the said rioters was dollars, after deducting the value of all goods returned to him by the police, as retaken from the rioters ; and he also sustained dollars damage, by the breaking of his store, and injury to the building, and the breaking up of his business for days thereafter by reason of the destruction of his stock of goods. (/") 562. For Chasing Plaintiff's Cattle.{g) That on the day of , 18 , at , the defend- ant chased and drove about [designate the cattle~} of the plaintiff, of the value of dollars, whereby they were greatly dam- aged and injured, and of them were killed [or, bruised, according to the fact'], to the damage of the plaintiff dollars. 563. For Shooting Plaintiff's Bog. {h) That on the day of , 18 , at , the defend- ant maliciously shot and killed a dog, the property of the plain- tiff, of the value of dollars, to the damage of the plaintiff dollars. 564. For Goods received Contrary to Statute, (i) That on or about the day of > 18 > the defend- ant received [ten shares of stock of the ' Company], of the (/) If the action is against a city, it required that in an action of trover for may be necessary to aver presentation any thing received by defendant in vio- of the claim before suit, for which see lation of a statute, the declaration must Form 184, ante, 139. set Ibrth " that such goods, &c., weie {g) This form is from Nasli's PI. & converted by defendant contrary to the Pr., 2.50. provisions of such statute." This was (h) This form is from Swan's PI., 296. held imperative in Schroeppel n. Covn- [i) By 2 Rev. Stat., 353, § 3, it was ing, 2 N. T. (2 Comst.), 182 ; 3 Den., 468 ABBOTTS' FORMS. Actions for Injuries Respecting Real Property. value of dollars, the property of the plaintiff, as [security for a usurious loan made by the defendant to the plaintiff, of the sum of dollars, for months, on interest at the rate of per cent, per annum], and that said [stock] waK'> ^^oiv verted by the' defendant contrary to the provisions of i3i^ statute [" Of the Interest on Money"], to the plaintiff's dini\^ • dollars. Section XX. COMPLAINTS IN ACTIONS FOE INJURIES EESPECTING EEAL PECVliSVV [A general averment of title is sufficient. It is enough to say that plain- tiff was owner, without setting out the sources of his title, (a) And the alle- gation of title imports possession suflBciently to sustain an action for trespass upon the land, unless there is something to indicate the contrary. (J) In an action for damages, the plaintiff must generally show either title or actual possession in himself at the time the injury was committed, (c) The former technical rule in respect to stating the time of a trespass, and the repetitions of it; is abolished by the Code of Procedure; and the plaintiff may allege repeated acts of trespass during a specified period, and may still give evidence of other acts before that time, unless the variance has misled the defendant.] (d) I. Tkbspassbs. 565. Trespass to land p. 469 566. The same. Another form 469 567. The same, for cutting and converting timber 470 568. The same, for removing fence 470 569. The same, where the new fence was not on the line 470 570. For entering plaintiffs house, and injuring it and his goods . 471 S36. The similar provision as to debt the same to his own use, without set- or assumpsit was not perhaps impera- , ting forth the special matter. tive (O'Maley ii. Reese, 6 Barb., 658 ; These provisions have been deemed Betts i>. Bache, 14 Abbotts' Pr., 279) ; still in force. Betts v. Bache, 14 Ab- nor was the provision of 3 Rev. Stat., batts' Pr., 279 ; S. C, 23 How. Pr., 197 ; 482, § 12, — that if an action of trover People v. Bennett, 5 Abbotts' Pr., 384. be brought to recover any goods or (a) Daley ». City of St. Paul, 7 ilfmra., other things forfeited by the provisions 390 ; and see infra notts (g) and (u). of any statute, the declaration may (6) See Cowenhoven v. City of Brook- aUege that such goods or other things lyn, 38 Barb., 9. were forfeited according to the pro- (c) Gardner v. Heart, 1 Jf. T. (1 visions of such statute, referring to the Comst.), 528. same, and that the defendant converted (d) Dubois v. Beaver, 25 iV. T., 123. COMPLAINTS. 469 For Trespasses to Land. 571. For treble damages for injuring trees p. 471 572. For treble damages for forcible entry or detainer 473 It Nuisances. 573. For diverting water from plaintiff's mill 473 574. For erecting a dam below, causing backwater 473 575. Against erector of a dam wMcli is a nuisance, — seeking its abatement, and damages 474 576. The same, where the land has been transferred 475 577. Special damage to plaintiff's land 475 578. Against the erector of a slaughter-house which is a nuisance, — seeking damages 475 579. Tlie same, against a conjtinuer 476 580. For an injunction against nuisance, and for damages 476 581. For obstructing a private way 476 III. Waste. 582. By lessor, for damages for waste 477 588. The same, by devisee 478 584. The same, by heirs against doweress and her husband 478 585. By purchaser at sheriff's sale, for waste committed before con- veyance 479 586. The same, by redemptioner 479 587. For forfeiture and eviction, on account of waste 480 588. Lessor against lessee for injunction and damages 480 I. Tkespasses. 565. Trespass to Land, {e) That on the day of " , 18 , the defendant broke and entered certain land of the plaintiff \briefiy designating if], and depastured the same with cattle [to his damage dol- lars], 566. The Same. Another J^orm. That on the day of , 18 , at ,(/) the (e) This form is from G kitty's Forms For a complaint for undermining the ofPr., 94. party-wall of plaintiff's house, see Eno It seems that mere possession, if v. Del Vecchio, 4 Duer, 58. peaceable and exclusive, is sufficient to For a complaint for an injunction re- enable the plaintiff to maintain the ac- straining defendant from excavating to tion. Palmer v. Aldridge, 16 Barb., undermine plaintiff's land, see Farrand 131, and cases there cited. v. Marshall, 19 Barb., 380. For the averments in a, complaint (/) Where the town is subdivided against aperson who, instead of passing intermediate the trespass and the ao- along the sidewalk of a vUlage street in tion, the trespass may be laid to have front of plaintiff s house, stops upon it, been done in the original town. Ee- and remains there to use abusive Ian- naudet v. Crocken, 1 Cai., 167 ; S. C, guage towards him, see Adams v. Eiv- Col. cfi C. Cos., 219. ers, 11 Barh., 390. i70 ABBOTTS' FORMS. Actions for Injuries Respecting Real Property. defendant forcibly broke and entered [or, wrongfully en- tered] (g) upon tlie plaintiff's land \briefly designating ii], and * trod down the grass, cut the timber, and otherwise injured Baid premises,- to plaintiff's damage dollars. 567. The Same, /or Cutting and Converting Timher. {h) As in preceding form, substituting at the *,] and there cut down and carried away the trees and timber of this plaintiff, and converted and disposed of the same to his own use, to plaintiff's damage dollars. 568. The Same, for Removing Fence. A.S in preceding form to the *, continuing,^ took down a fence standing iipon said land of the plaintiff, and removed the same, and also then and there erected another fence f on said land, and also then and there disturbed the plaintiff in the use and occupation of said land, and prevented him from enjoying the same 'as he otherwise would have done, to his damage dollars. 569. The Same, where the New Fence was Not on the Line. At the f above, for the words " on said land" sitistitute,] and said new fence was not erected upon the true division-line be- tween the land of the defendant and of the plaintiff, nor upon the line of the old fence, but upon the land of the plaintiff, without any right or authority in the defendant so to do ; and, &c. (g) Tlie action lies, though the land Where the complaint simply alleged be not inclosed. Wells v. Howell, 19 an entry upon plaintiff's premisfes and Johns., 385 ; Tonawanda R. R. Co. v. injury to his property, without charg- Munger, 5 Den., 355. But under a ing the employment of force, the issue count for breaking and entering the was held to be confined to the acts of plaintiff's close, and taking his goods the defendant after the entry, and to there, the plaintiff was held to prove the damages resulting fTom such acts, the entry into his close. Although the Turner «. McCarthy, 4 jE*. D. Smith, 247. taking of goods is in its nature transi- (A) For the substance of a complaint tory, if it is coupled with the" breaking by executors, alleging that third per- of the close, which is local, both are sons wrongfully cut.timber on the tes- made local ; and, at common law, both tator's land, and that defendants after- must be proved as laid. Howe v. Will- wards entered and removed it, see Hal- son, I Den., 181. leek «. Mixer, 16 Gal. 574. COMPLAINTS. 471 For Entering House. Injuring Trees. 570. For Entering Plaintiff'' s Hov,se, and Injuring It and His Goods. I. That on the day of , 18 , the defendant, "W". X. [at the instigation and request of the defendant, Y. Z., and being by him employed thereto, and assisted therein], («') forci- bly broke and entered [or where the entry was without force, wrongfully entered] the dwelling-house of the plaintiff, situated at , and broke and injured the walls and doors thereof [or other injury, according to the fact\, and took and carried away a table and six chairs, the property of the plaintiff, of the value of dollars, and converted and disposed of said goods to his [their] use [or, cut, broke, defaced, and injured, &c., as in Fm-m 559], to the damage of the plaintiff dollars. 571. For Treble Damages for Injuring Trees, (j) I. That the defendant, in the month of ,18 , entered (/c) upon the land of the plaintiff, in the town of [the same being then in the possession of the plaintiff], {I) and did, with- out the leave of the plaintiff, the owner thereof, cut down [w, carry off, or, cut down and carry off] 300 pine-trees and 100 oak-trees [or otherwise desarihe the wood, underwood, trees, or timherl, of the value of dollars ; and girdled [or otherwise despoiledl other trees [designating nuniber and Ttind'], of the value of dollars ; whereby the plaintiff lost said trees and timber, and the land belonging to the plaintiff was greatly damaged and lessened in value, to the amount of dol- lars; (m) and thereby the defendant, by the force of section 1 of the statute " Of Trespass on Lands," forfeited and becanio lia- ble to pay to the plaintiff treble the amount of said damages, (w) (ij This, thougli not essential, is a (V) The benefit of the statute is not proper allegation where the fact is confined to persons having n present such. Ives «. Humphreys, 1 E. D. estate in possession. Any person seized Smif/i, 196. ' of an estate. in remainder or reversion, ( j) This remedy is given by 3 Rev. may bring an action under it, notwil'v Slat, 338, § 1. standing any intervening estate for life (k) The acts alleged must be essen- or years.' Van Deusen v. Young, 29 tially acts of trespass, forcible and un- Barb., 9. lawful ; but it need not be alleged that (to) This is a suflBcient allegation, the entry was unlavyful. Van Deusen Van Deusen v. Young, 29 Barh., 9. Young, 29 Barb., 9. (») To entitle to treble damages un- 4:72 ABBOTTS' FORMS. Actions for Injuries Respecting Real Property. 672. For Treble Damages for Foraihle Entry or Detainer, (o) I. That at the time liereinafter mentioned, the plaintiff was owner of a freehold estate in a certain farm and dwelling-house, barns, and sheds thereon, in the possession of the plaintiff, situate at II. That on the day of ? 18 , the defendant forcibly entered thereon, and in a forcible manner disseized the plaintiff, and ejected and put him out of said lands and tene- ments, and by force and with a strong hand kept him out therefrom, to his damage dollars ; whereby the defendant, by force of section 4 of the statute "Of Trespass on Lands," for- feited and became liable to pay treble the amount of said damages. II. Nuisance. 573. For Diverting Water from Plaintiff ^s Mill. I. That at the times hereinafter mentioned, the plaintiff was lawfully possessed {p) [or, if not in possession, the owner in fee] {(j) of a water-mill, called a grist-mill [or, saw-mill, or other- wise\, situated upon Brook [naming the stream^, at [stating location definitely, or stating name of miU\. II. That the plaintiff then had a right to use and employ the water of said brook, and to have the same flow to and through his mill in a convenient and customary manner, according to the natural and usual flow of said brook, and withoiit the hin- drance of the defendant or any other person, (r) der the statute, the declaration must (o) This action is given by 2 Bev. Stat., refer to the act ; otherwise the defend- 338, § 4 ; 8 Sen., 6, c. 9. As to the ant cannot he prepared to narrow the essential facts to maintain the action, claim, by bringing himself within the see Willard «. Warren, 17 Wend., 257. provisos of the act. Brown v. Bristol, ( p) That possession by the tenant is 1 Gow., 176. It was held in Beekman a possession by the plaintiff sulBcient V. Chalmers, 1 Id., 584, that as this is to support this averment, see Sumner the only statute which can apply to the v. Tileston, 7 Pick., 198. It is enough case, it is not essential specifically to to show possession at the time of the refer to it by its title ; nor is it essen- injury. "Vowles v. MiUer, 3 Taunt., tial to negative the exceptions. But as 137. there are now other statutes which (q) Where mills were worked on may apply sometimes, it is well to re- shares for a time, and tlien for another fer to the title of the act. • period by the same occupant on a lease, COMPLAINTS. 473 For Erecting Dam. III. That on the day of , 18 , and on various days between that time and the day of j 18 , the defendant [knowhig the premises, and intending to injure the plaintiff] wrongfully * dug up and removed the banks of said brook above said mill, and for days diverted the water [or, a part of the water] thereof from running to and through said mill [or, built a dam across said brook above said mill, and for days stopped the water thereof from running to and through said mill]. (*) IV". That, by reason of such acts of the defendant, the plain- tiff'o mill, which was able, and before was used to grind bushels each day, thereafter and during the time aforesaid could only grind bushels, to the damage of the plaintiff dollars. 574. J^or Erecting a Dam Below,, Causing Backwater. As in preceding form to the *, continuing,] erected a dam and mill upon the same stream, a little below the plaintiff's said mill, and have continued the same ever since, whereby the defendants cause a backwater, that hinders a free course of said stream from the plaintiff's mill, to the nuisance of his mill, and and tie owner sued a tUrd party for fendant's acts. Wilbur v. Brown, 3 damages for interfering with the sup- Den., 356. ply of water during both periods, claim- But if the defendant was a wrong- ing merely as possessor, it was held doer, an averment as to the quantity that title need not be averred ; law- of water to which the plaintiflf is en- ful occupation is sufficient. But to titled, is immaterial. McDonald v. sue as reversioner, that character must Bear Eiver, &c., Co., 15 Cal., 145 ; and be set forth, and, also, the tenancy, see Cro. Ca/r., 500, 575. If the com- Rich V. Penfield, 1 Wend., 380. plaint shows that defendant was a tres- (r) Where the right rests in contract, passer, an averment that plaintiff was the amount of water to which the plain- in possession of the land and mill, with- tiffwas entitled should 'be alleged ac- out averring riparian ownership, or cording to the fact. Wilbur v. Brown, prior appropriation of the water, is 8 Ben., 356. As to the sufficiency of sufficient. McDonald v. Bear River this averment, see Twiss v. Baldwin, 9 Mining, &c., Co., 13 Cal., 230. Conn , 291 ; Williams «. Moreland, 2 (s) Allegations that defendants di- Barrm. <& C, 910 ; Sheers v. Wood, 7 verted the water, and that they stopped Moore, 845. If the plaintiff was only it until their dam was full, and then entitled to surplus water, his complaint discharged it, carrying down earth and must allege that surplus water existed stone, which rendered it useless to or would have existed but for the de- plaintiflFs, may be united as one cause 474 ABBOTTS' FORMS. Actions for Injuries Bespecting Real Property. to the hindrance of his business, to his damage • dollars [or conclude with paragraph /F"]. 575. Against Erector of a Dwm which is a Nuisance^ {t) Seek- ing its Abatement, and Damages. I. That the plaintiff is, and at the times hereinafter mentioned was, the owner of the freehold {u) of certain lands in , with dwelling-house thereon, known as [designatitig the prem- ises\. II. That in the month of , 18 , the defendant wrongfully raised (w) a dam \or, a pool of water] upon his free- hold, in the vicinity of the plaintiff's land, whereby * the water was flowed thereon [or, on plaintiff^s freehold], (lo) to the nuisance of plaintiff's said freehold, and to his damage dollars. Wherefore the plaintiff demands judgment — 1. That the said nuisance be removed. 2. That the plaintiff recover of the defendant dollars, damages caused thereby, and costs of this action. of action. Gale ». Tuolumne Water If the allegation of a freehold is omit- Co., 14 Gal., 25; S. P., Hoffman d. ted, however, the action may he sus- TuolunaneCountyWaterCo., 10J(?.,413. tainahle as an action for damages, if) Tlie writ of nuisance is aholished ; though not for a removal of the nui- but injuries heretofore remediable by sance ; and to this extent we think EUs- writ of nuisance are subjects of action, worth e. Putnam, which held the com- as other injuries; and in such action plaint demurrable, must be deemed un- there may be judgment for damages, or sound. Cornes ». Harris, 1 N. Y. (1 for the removal of the nuisance, or both. Gomst), 223 ; Hess v. Buffalo & Ni- Code of Pro., §§ 453, 454. agara Palls, &c., R. R. Co., 29 Bm^., (u) In an action under sections 453 391. and 454 of the Code, as a substitute for (») This is the more apt form of alle- the statutory writ of nuisance, it is held gation, though " erect" would be appro- that the plaintiff must aver that he was priate. ovmer of the freehold at the time of If a dam at*-a certain height is law erecting the nuisance, and at that of ful, and the owner increases its height, the commencement of the suit, and that a person injured thereby may recover the defendants were tenants of the free- under a declaration for the wrongful hold of the land whereon the nuisance erection and continuance of the dam. was erected. To obtain judgment for Colvin «. Burnet, 2 Hill, 620. an abatement, the owners must be de- (w) In a complaint for overflowing fendants. Ellsworth «. Putnam, 16 land, &c., the words of the old form. Smb., 565. This form of remedy, " with force and arms," are unnecessa- hov.'ever, is not favored by the courts. , ry ; but inserting them is surplusage, COMPLAINTS. 475 Actions Eespecting Nuisances. 576. The Same^ where the Land has heen Transferred, (x) Insert after par agragh II. in preceding form— ■ III. That on or about the day of ; 18 , the defendant \ercGtor'\ conveyed said freehold to the defendant \continuer\ who, from that time ever since, has heen in posses- sion of said freehold and darn, and wrongfully maintains said nuisance ; although, on the day of , 18 , and before this action, he was by the plaintiff requested to remove and abate the same. (2/) 577. Special I)amage to Plaintiff^s Land. Conclude paragraph II. in Forvi 575, from the *, — e. g., thus : whereby the plaintiff's grass, of the value of dollars, then growing on- said meadow, was spoiled, and his meadow- made spongy, rotten, and good for nothing ; and foi-ty lengths of plaintiff's fence, of the value of dollars, have been taken up and carried away. 578. Against the Erector of a Slaughter-house lohich is a Nuisance, Seeking Damages, (z) I. Tliat the plaintiff is, and at tlie times hereinafrer mentioned was [the owner and] (a) possessed of the house and lot Xo. , in street, in the city of , which he inhabited with his family. II. That the defendant was also then possessed of certain j^remises contiguous to [or, in the immediate vicinity of] those of the plaintiff. and does not operate to exclude conse- {y) In an action of nuisance against quential damages. Darst 1). Rush, 14 a contiuuer, for neglect to removo it, a Cal., 81. special request to remove it must lio (a;) " In cases of nuisance, the plain- shown. Hubbard v. Russell, 24 BcitI)., tiff shall not go without remedy be- 404 ; but compare, to the contrary, cause the land is transferred to anoth- Brown v. Cayuga & Susquehanna R. H. er; but in such case the party by whom Co., 13 N. Y. (3 Kern.), 486. the nuisance was erected, and he to («) This form is supported by Comes wiiom it was transferred, shall both be i). Harris, 1 W. T. (1 Comst.), 333 ; and named as defendants in the writ." 2 Clark «. Storrs, 4 Barh., 563. Rev. Stat., 333, § 2. But this provision {a) It is not necessary to allege that is held not to apply except where the the plaintiff was the owner, though freehold is shown to be in the parties, this is proper with reference to tho Kllsworth ®. Putnam, 16 Sarb., 565. damages. 476 ABBOTTS' FORMS. Actions for Injuries Respecting Real Property. III. That the defendant, in the month of 5 18 , erect- ed on his said premises a slaughter-house and cattle-pens, and thereafter * kept and slaughtered therein large numbers of cat- tle and hogs, thereby causing noxious and offensive smells, and loud and offensive noises, and tainting and corrupting the atmosphere, so as to render the dwelling-house and premises of the plaintiff unfit for habitation, to the nuisance of the said dwelling-house and premises of the said plaintiff, and to his damage dollars. [lY. For averment of special damage, see Forms 429 and 430.J 579. The. Same, Against a Contl-iruer. I. As in Receding form. II. That ever since the day of ,18 , the defend- ant has maintained a slaughter-ho'use on his premises contiguous thereto [or, in the immediate vicinity thereof], and has [continue as in the preceding form, from the *]. III. That on the day of 5 18 , the plaiutifl requested the defendant to remove the said slaughter-house, or . to cease using it for that purpose, but he has not done so. [IV. Special damage, if any.] 680. For an Injunction against Nuisance, and for Damages. State facts as in precediny forms, demanding judgment thus . Wherefore the plaintiff demands judgment — 1, That the defendant be' restrained by injunction froir erecting or using the said building as a , or otherwise to the nuisance of the plaintiff, or permitting it to be so used. 2. That the plaintiff recover from the defendant dollars damages, and his costs. (5) 681. For Obstructing a Private Way. (c) I. That the plaintiff, at the time hereinafter mentioned, was (S) Several persons, having independ- relief of a prayer for an account and ent claims to relief, may join in a suit damages does not render the biU multi- to restrain a nuisance which affects the farious, for it may be struck out. Mur- respective claims of both ; and in such ray v. Hay, 1 Ba/rb. Oh., i>&. a suit, the insertion in the prayer for (c) That a demand lur damages for COMPLAINTS. 477 Actions for Waste. [and still is] possessed of \liere describe his premises, — e. g., a meadow in the town of , and county of ], and had a right of way therefrom over the adjoining land to the high- way [or, to other land of the plaintiff], to pass and repass on foot freely at all times [or, with horses, or, with carts, designa- ting the use of the way according to thefact\. II. That the defendant, on the day of , 18 , and at other times thereafter, and before this action, wrong- fully obstructed said way by [building a fence across it], where- by the plaintiff Avas for a long time \or, was, and still is] pre- vented from enjoying said way, to his damage dollars m. State special damage, if any. (d) III. Waste. 582. By Lessor, for Damages for Waste, {e) I. That the plaintiff, before and at the time of the committing of the grievances hereinafter mentioned, was [and still is] (/") the owner in fee-simple of the following described lands [de- scription of premises\. II. That at the time of the committing of said grievances the defendant held and enjoyed tlie said premises as tenant thereof to the plaintiff, under and by virtue of a demise to the defend- ant, made by the plaintiff. (^) III. That the defendant, with intent to injure the plaintiff in his reversionary interest therein, on the day of , and on other days thereafter, and before this action, without authority, cut down and carried away therefrom one thousand beech-trees, one thousand chestnut-trees [&c.], of the value of dollars. IV. That during the same time he likewise dug up aiid car- obstructing plaintiff's way, and that («) This is, in substance, the corn- defendants be compelled to open the plaint in Robinson D. Wheeler, and way, may ba united, see Getty v. Hud- White t. Wheeler, 25 N. T., 253. son Eiver R. R. Co., 6 Mow. Pr., (/) The action lies even after the 269. plaintiff has assigned the reversion. {d) In a private action for obstruct- Robinson v. Wheeler, 2~> iV. Y.. 252. ing a public way, some special damage (g) That these averments as to titln must be laid, though it is otherwise in are suflBcient, even in a strict action ol respect to a private way. Lansing v. waste under the statute, see Carris v Wiswall, 5 Den., 213. IngaUs, 12 Wend., 70. 478 ABBOTTS' FORMS. Actions for Injuries Respecting Real Property. ried away one thousand cubic yards of soil and iierbage, of the value of dollars, and converted all the same to his own use. V. That during the same time he likewise wrongfully [or negligently] (A) set fire to and destroyed [the said building] upon the premises, and constituting a part of the realty, and wholly destroyed the same. VI. That the plaintiff was thereby injured in his reversionary estate in the premises to the amount of dollars. 583. The Same^ hy Devisee. I. That at the time of his death, one M. N". was seized in lee- si in pie oi [describe the j>remises'\. II. That in his lifetime the said M. N. made and published his last will and testament, whereby he devised the said land to the defendant for the term of , and afterwards to the plaintiff. III. That on the day of , 18 , at , the said M. N". died. IV. That the defendant entered into possession of the same, under the said will. V. Continue as in preceding form, Til. to VT. 584. The Same, hy Heirs against Doweress and her Husband. I. That one M. N. was in his lifetime seized in fee-simple of lands in county, of which the following described premises are a part. II. That on the day of , JS , being so seized, he died intestate, leaving the defendant "VV. his widow. III. That the defendant W. thereafter entered on and was possessed as her dower during her life of one-third part of said lands, to wit, the following described premises : [descri/ption of premises.} [lY. That the defendant W. afterwards intermarried -with the defendant, Y. Z., who entered and was possessed thereof in her right.] (7t) Under an averment that the he had for negligent waste. Robinson waste was wrongful, a recovery may v. Wheeler, 25 N. Y., 252. COMPLAINTS. 471) For Waste of Lands sold on Execution. V. That the plaintiffs were left by the said M. E". his only cliildren and heirs ; and as such were, at the time of the com- mitting of the grievances hereinafter mentioned [and still are], entitled to the reversion in the above described premises. YI. \_Allege waste as in jpreceding forms. '\ 585. By Purchaser at Sheriffs Sale ; for Waste Committed hefore Conveyance, (i) I. That on the day of , 18 , the premises here- inafter described, being then owned in fee-simple by one K. L., but being subject to the lien of a judgment theretofore re- covered by M. N. against 0. P., and docketed in said coiinty, the sheriff of said county, by virtue of an execution thereon, sold the same, which are bounded and described as follows : [here describe the prem.ises.] II. That at such sale the plaintiff became the purchaser, and the sheriff executed and delivered to him a certificate of the sale, and subsequently, and on the day of , 18 , and before this action, executed and delivered to the plaintiff a deed of the premises pursuant to the sale, and the plaintiff paid the purchase-money therefor, {j) III. That intermediate the sale and the delivery of the deed, the defendant, being in possession \or, the said being in possession, the defendant, with his consent], cut and carried from the land one thousand pine-trees [continuing as in Forin 582]. 686. The Same., ly Redemptioner. I. \_As in preceding form."] II. That at such sale the defendant became the purchaser, and the sheriff executed and delivered to him a certificate of the sale. III. That afterwards, and before the expiration of fifteen months, the plaintiff, by virtue of a judgment theretofore re- covered by him against said , which judgment was a lien on the premises, duly redeemed the same from said sale, by paying the necessary amount therefor ; and thereafter, and on (i) Tliis and the following form are (j) The deed and payment should he based on Thomas v. Crofut, 14 N. Y. (4 alleged. Farmers' Bank of Saratoga v- Kern), 474. Merchant, 13 How. Pr., 10. 480 ABBOTTS' FOEMS. Actions for Injuries Respecting Real Property. the day of ? 18 j a^nd before this action, the sherifl executed and delivered to the plaintiff a deed of the premises pursuant to the sale and redemption. IV. [As III. in the preoeding form.] 587. For Forfeiture and Eviction, on Account of Waste, {k) I.-IV. [As in Form 583 / or, where the defendant is lessee, as I. and II., in Form 582.] V. That on the day of , 18 , the defendant committed great waste on the said land [cutting down -ap- ple-trees, or otherwise specify the acts of waste: see Form 582]. YI. That the injury thereby done to the said property is [more than] equal to the value of the defendant's unexpired terra. VII. That said waste was committed in malice. Wherefore, the plaintiff demands judgment : 1. That the estate of the defendant in the said property be .forfeited ; 2. That he be evicted therefrom ; 3. For [ dollars damages, and for] the costs of this action. 588. Lessor against Lessee, for Lnjunction and Damages. (V) I. That the plaintiff, being then and ever since owner in fee- simple of the premises hereinafter mentioned, on the day of , 18 , by a lease in writing then made between the plaintiff and the defendant, under their hands and seals [or. under tlie hand and seal of the defendant], the plaintiff leased to the defendant [designate term and premises, — e. g., thus'], — for ten years from said date, at a yearly rent of $1,000, a certain dwelling-house, with stable and sheds attached, and ten acres of lawn and woodland, orchard and garden, at , in the county of , the property of the plaintiff. II. That said lease contained a covenant on the part of the {k) This form is from the Commis- (I) This form is, in substance, from sioners' Report, p. 107. Paragraphs VI. the Equity Draughtsman, 350. See, and VII. are not both essential ; either also, as to the proper allegations in such one is enough to make a case for evic- a complaint, Hawley v. Wolverton, 5 tion. Code, § 453 Paige, 522 ; Rodgers v. Rodgers, 11 Barb., 595. COMPLAINTS. 481 For Waste of Leasehold. defendant, of which the following is a copy : [cop]/ of the cove- nant as to waste or repairs']. [Or, II. That the defendant in said lease covenanted that he would — stating the substance of the covenant^ III. That the defendant took possession of the premises nnder said lease, the same being then in good repair and condition ; but that they have since become ruinous and bad, and the lands very- much deteriorated by the wilful mismanagement and improper cultivation thereof by the defendant ; that he has ploughed up the garden, destroying the shrubbery and flowers therein, and has cut down ten ornamental and shade trees standing near the house, and has cut down ten apple-trees in the orchard [or in like manner state other waste, according to the fact], and has otherwise suffered and committed great waste on the premises ; by reason of which waste the premises are wortii dollars less, to be sold, than they were when the defendant took pos- session thereof; and it would cost dollars to restore them. TV. That the defendant threatens to cut down other of the ornamental, shade, and fruit trees, and to remove the partitions in the first story of the house, and turn it into a workshop [or other threatened waste]. "Wherefore the plaintiff asks judgment : 1. That the defendant may be required to [restore and] re- pair the premises. 2. That he pay to the plaintiff dollars damages done to and suffered by the premises (the plaintiff hereby waiving all forfeitures and penalties incurred in respect to said waste), {^n) 3. That he be required to keep the same in good repair and condition during the continuance of his interest therein, ana to manage and cultivate the farm in a proper and husband-like (to) a landlord cannot demand an in- Our statute, however, forbids waste junction against a breach of covenant, pending a legal action for damages and in the same action in which he de- forfeiture, and provides that the court mauds a forfeiture of the lease. Such may make an order to stay waste, reliefs are incohsistent. Linden v. which will be enforced like an injunc- Hepbum, 8 Band/., 668 ; S. C, 5 How. tion. 3 Rev. Stat, 330, §§ 18, 19. So Fr., 188 ; 9 if. F. Leg. Obs., 80. In that in many cases the better practice chancery, a bill for injunction in such will be to sue in that form, instead of case must waive forfeiture and penalty, demanding an injunction as a, part of 3 Ath., 457. the relief. Vol. I.— 31 482 ABBOTTS' FORMS. Actions for Injuries Respecting the Ferson. manner, according to the terms of the lease, and the custom of tlie country. 4, Tliat he be enjoined from committing ^nj further waste, and particularly from [stating particular act to he enjoined']. Section XXI. COMPLAINTS IN ACTIONS FOE INJURIES EESPECTIN& THE PEESON. [In an action for a wrong done by several defendants (other than a con- spiracy), — e. g., malicious prosecution, — it i^ enough, to charge them all jointly, to allege that " they, contriving and maliciously inteiiding to injure the plaintiff," did, &c., continuing as in the case of a single defendant, (a) In an action for libel or slander, it is not now necessary to state in the complaint any extrinsic facts, for the purpose of showing the application tc the plaintiff of the defamatory matter out of which the cause of action arose; but it is sufficient to state generally that the same was published or spoken concerning the plaintiff, (b) This provision applies only to such extrinsic facts as are necessary to show the apphcation, but not to such' as are necessary to show the defamatory meaning of the words, (a) It is better that facts to show the defamatory meaning should be alleged directly, and not merely by way of inuendo.] {d) I. Assault and battbbt, and false imprisonment. 589. For assault and battery , p. 483 590. For the same, short form 484 591. For the same, committed by married woman 484 593. For assault and battery, and false imprisonment 484 593. The same, a fuller form 484 594. For false imprisonment 484 11. Malicious trosecution. • 595. On a criminal charge 485 596. Tlie same, for obtaining an indictment, on which a nolle prosequi was afterwards entered 486 597. The same, for arrest in a civil action 488 (a) Dreux ■c. Domec, 18 Oal., 83. (c) Fry v. Bennett, 5 Sandf., 54 ; S As to the mode of pleading in cases C, 9 J/". T. Leg. Obs., 380 ; Pike v. Van of conspiracy, see Tappan v. Powers, 3 Wormer, 5 How. Pr., 171 ; 6 Id., 99 ; Hall, 377 ; Jones i). Baker, 7 Cow., 445 ; Caldwell v. Raymond, 3 Abbotts' Pr., Forsyth v. Edminston, 11 Sow. Pr., 193 ; Blaisdell v. Raymond, 4 Id., 446 ; 408. Culver i>. Van Anden, 4 Id., 375. (b) Code of Pro., § 164 ; Wedey v. {d) Caldwell v. Raymond. 3 AWoitsr Bennett, 5 Abbotts' Pr., 498. Pr., 193. COMPLAINTS. 483 Assaults. III. Libel. 598. General form, wliere the words are libellous on their face . . p. 489 509. The same, for libel relating to business or profession 491 600. The same, by merchants, partners 491 COl. The same, where the libel was published in defendant's news- paper 492 602. Where the words are not libellous on their face ; charge of crime 492 603. The same ; charge of dishonesty, &c., in business 493 604. For libel by signs 498 IV. Slander. 605. Where the words are actionable in themselves 499 606. For slander respecting plaintiff's trade, with special dam- age 501 607. For slander of title -. 5(^2 V. Other violations of personal eights. 608. For enticing away plaiutiflF's wife. 504 609. For criminal conversation with plaintiff's wife 504 610. For seduction 50S 611. For seduction of plaintiff's daughter or servant 505 613. Against tlie oflHcers of an election, for refusing plaintiff's vote 506 1. Assault and Battery, and False Impkisonment. 589. For Assault and Battery, (e) 1. That on the day of , 18 , at ' , the de- fendant violently assaulted the plaintiff, and struck him in tlie face and bj'cast several violent blows, and aimed at him a g'un and threatened to shoot him, whereby he put the plaintiff in fear for his life; and maliciously caused a dog to bite the plain- tiff; and also tore the clothes from plaintiff's person [or other- wise describe the violence used, and its consequences ; special damage, if any, leing stated, thics,- — and the plaintiff was thereby made ill and lame, and disabled from attending to his business for thereafter, and was compelled to pay dollars for medical attendance, and has been ever since, and for a long time will be lame], to his damage dollars. («) A complaint which alleges that whole transaction, to recover damages the defendant assaulted the plaintiff, for the compound injury he has sus- and at the same time slandered him, tained. Brewer v. Temple, 15 How. states but a single cause of action. Tlie Pr., 286. plaintiff may bring his action for the 484: ABBOTTS' FORMS. Actions for Injuries Respecting the Person. 590. For the Same^ Shorter Fm'm, That on the day of > 18 , at , the de- fendant assaulted and beat the plaintiff, to his damage dollars. 591. For the Same, Committed hy Married Woman. That on the day of > 18 , the defendant Z., Bhe being then, as now, the wife of the defendant Y. [continue as in eitlier preceding forrrb\. 592. For Assault and Battery, and False Imprisonment. That on the day of , 18 , at , the defend- ant assaulted and beat the plaintiff, and falsely and maliciously imprisoned him, without reasonable cause and without right [and detained him for hours, preventing him fi'om attend- ing to his business], to his damage dollars. 593. The Sams, a Fuller Form. (/) That on the day of , 18 , the defendant as- saulted the plaintiff, and gave him into the custody of a police- man, and forced and conipelled him to go to a police-station, and there caused him to be imprisoned on a false charge then made by the defendant, that the plaintiff had been guilty of a .felony, 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 offence ; but the said magistrate dis- missed the said charge, and caused him to be discharged out of custody. 594., For False Imprisonment. I. That on the day of , 18 , at , the defendant maliciously, and with intent to injure the plaintiff, by force [compelled the plaintiff to go with him to a police-office, or, to the county jail, or the like, there situate, and there] {g) (/) This form is from 1 Gliitty's (g) The above form, with the words Toi-ms of Pr., 9-'5. in brackets inserted, is sufficient even COMPLAINTS. 485 Malicious Prosecution. imprisoned this plaintiff, and then and there detained him restrained of his liberty, for the space of hours, without reasonable cause, and without any right or authority so to do, and against the will of the plaintiff;* whereby the plaintiff wiis not only bruised and wounded, but was also injured in his credit, andwas prevented from attending to his necessary affairs aud business during that time, and was compelled to expend dollars in costs and counsel-fees in obtaining his dis- charge, to his damage dollars. II. Malicious Peosecution. (A) 695. On a Criminal Charge, (i) I. That on the day of , 18 , at , the defendant, maliciously intending to injure the plaintiff in his good reputation, appeared before , justice of the peace of said county [or, one of the police justices of said city], and, without any probable cause whatsoever, charged the plaintiff, before said justice, with having [feloniously stolen a certain gold watch of the defendant] ; and maliciously, and without probable cause, procured said justice to grant a warrant for the arrest of the plaintiff upon the said charge. II. That the said justice issued said warrant accordingly, and the plaintiff was arrested and imprisoned under the same for hours [and was obliged to, and actually did, give bail in the sum of dollars]. III. That afterwards, and on the day of , the plaintiff having been examined before the said justice for the said supposed crime, the said justice adjudged him not guilty thereof, and fully acquitted him of the same ; and that since where the imprisonment was had under (h) A cause of action for malicious pretence of legal process. prosecution may be joined with a cause The particular instrumentality by of action for libel or slander. Watson which the plaintiff was deprived of his v. Hazzard, 3 Code li., 318; Martin v. liberty, should not be set out in the Mattison, 8 Abbotts' Pr., 3. complaint. If the circumstances of the (i) This form is supported by Secor arrest are set forth, they may be struck ». Babcock, 2 Johns., 203. out on motion. Eddy b. Beach, 1 Ah- For allegationsofa complaint against botts' Pr , 17 ; Shaw v. Jayne, 4 How. a Vigilance Committee, see Moloney « Pr., 119. Dows, 2 Hilt, 347. i86 ABBOTTS' FOEMS. Actions for Injuries Eespecting the Person. that time the defendant has not further prosecuted said com- plaint, but has abandoned the same. (^') [IV. That the said charge and the arrest of the plaintiif there- under were extensively published in several public newspapers, among others, the , as the plaintiff believes, through the procurement of the defendant.] {Jc) V. That by means of the premises the plaintiff was injured in his person, and prevented from attending to his business, and was compelled to pay dollars costs, counsel-fees in do- fending himself, (I) and dollars in obtaining bail ; and in consequence of the arrest and detention he lost his situation as servant of ; and many persons, hearing of the said arrest, and supposing the plaintiff to be a criminal, have refused to employ him ; to his damage dollars. 596. The Same, for Obtaining Indictment, on which a Nolle Prosequi was Afterioards Entered. I. That the defendant, maliciously intending 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 thereby to impoverish and injure him, on or before the day of ( j) Or state a trial of tlie plaintiff by set up that his conviction was fraudu- a jury, if that were the fact, and his leutly procured by the defendant, by acquittal. In a complaint for malicious means which prevented the plaintiff prosecution, the plaintiff's af-quittal from setting up his defence. Miller v. must be alleged ; and an allegation peere, 2 Ahhotts' Pr., 1. that he has been discharged, is not suf- (k) In an action for malicious prose- ficient. Morgan v. Hughes, 3 T. JR., cution, the complaint may aver matter 235 ; Bacon v. Townsend, 2 Code S., 51. tending to show the defendant's mo- It is not enough to aver that the tive, — e. g., a malicious publication, by prosecuting oflScer declared the com- him procured to be made, concerning lilaint frivolous, and refused to try it. the prosecution, — such as would be Thomason «. Demotte, 9 AUbotts' Pr., proper to prove at the trial, as showing 342. ConTpaie note {m), infra. special injury. Such averments should But if the complaint shows that the not be struck out on motion, as the arrest was without jurisdiction, it may plaintiff cannot be deemed aggrieved be good as alleging a trespass, without by them. Brockleman o. Brandt, 10 averring a determination in favor of Abbotts' Pr., 141. plaintiff. Steel v. Williams, 18 Ind. (l) Expenses of counsel, made neces- (Kerr), 161 ; Searll v. McCracken, 16 sary by a malicious prosecution, are to How. Pr., 2G2. be specially alleged. Strang «. White If the plaintiff wag convicted, he may head, 12 Wend., 64. COMPLAINTS. 487 Malicious Prosecution. ,18 , procured M. N., then the distiict attorney in and for the county of , in this State, to issue subpoenas for tiie purpose of compelling and procuring the attendance of wit- nesses, among others, one 0. P., at a court of Oyer and Termi- ner, held on the day last mentioned at , in said county, before the grand-jury and persons serving as grand-jurors at such court of Oyer and Terminer, for the purpose of procuring an indictment to be found against the plaintiff, as hereafter more fully stated. II. That the defendant, at said court of Oyer and Terminer, 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 witli having, by means of false and fraudulent pretences and representations, induced defendant to deliver to the plaintiff certain personal property of the said defendant. III. That said charge was and is wholly false and untrue, which the defendant then and at all times since well knew. IV. That defendant falsely, and maliciously, and without any reasonable or probable cause, procured the grand-jury aforesaid to find and present to the said court of Oyer and Terminer an indictment against the plaintiff for said alleged false and fraud ulent pretences and i-epresentations. V. That the defendant falsely, and maliciously, and without anj' reasonable or probable cause whatsoever, procured a war- rant, directed to the sheriff or any constable of the said county of , for the ai'rest of the plaintiff upon the aforesaid in- dictment, to answer the charges therein made against him as aforesaid, to be issued by the said court of Oyer and Terminer, or by a justice of the Supreme Court, judge of tl'e County Court of said county of , or district attorney aforesaid ; and afterwards, on or about tlie day of ,18, (lansed the plaintiff to be arrested and to be kept in custody, restrained of his liberty for the space of two days then next following, and afterwards caused him to be carried in custody before the county judge of said county, and to be then and there com- pelled to give bond to appear for trial therein. VI. Tliat the plaintiff did appear at the^aid court of Oyer and Terminer last above mentioned, held in and for the said county of , at , on the day of j 18 , i88 ABBOTTS' FORMS. Actions for Injuries Respecting tlie Person. and other days, pursuant to said bond ; whereupon the said de- fendant did falselj, and maliciously, and without any reasona- ble or jjrobable cause whatsoever, procure the said court, by order entered in its minutes, to send' the aforesaid indictment to the Court of Sessions of the said county of ■ > to be pro- ceeded on and tried therein ; and, in like manner, procured the said court of Oyer and Terminer to compel the plaintiff to enter into a recognizance to appear at such Court of Sessions, to answer and stand trial upon the aforesaid indictment against him. VII. That the plaintiff did appear at the said term of said Court of Sessions, ready and willing to then and there stand trial upon the aforesaid indictment against him, pursuant to and as required by said recognizance. Whereupon the afore- said district attorney, after consulting and advising with the defendant, and pursuant to his request and instructions, did then and there move the said court that the plaintiff be dis- charged out of custody, and fully discharged and acquitted of the said indictment ahd of the supposed offence therein charged aganist 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 touching and concern- ing the said supposed offence, did then and there adjudge, order, and determine that the plaintiff be discharged out of custody, and be fully discharged and acquitted of the said in- dictment, and be no further prosecuted thereon. VIII. That the said indictment, complaint, and prosecution, and each of theni, is wholly ended and determined in favor of plain tiff.(m) IX. [Allege special damage, if any, as in other cases. \ 597. Tlis same, for arrest in a Civil Action. I. That on the day of , 18 a,t , the defendant, maliciously intendipg to injure the plaintiff", and without probg,ble cause,(^) made (m) lu a recent case in the Supreme vor of the accused to sustain the action. Court, from whicli this precedent was i2) This allegation is inse)ted in taken. 1,hi,i determination was hold (at deference to the decision in. Given v o'eneral term) a sufficient decision in fa- Webb, 7 }ioht., 65. COMPLAINTS. 4S9 Libel. Words Libellous on their Face. affidavit, and procured one M. F. to make an affidavit, in an action then brought [or, depending] against this pLiintitf by , in which he falsely and maliciously alleged \_here set forth the grounds of the false arrest] ; and that upon said affi- davits the defendant procured 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 thereafter said order of arrest was vacated by said court [o/', judge], upon the ground that [here set forth briefly the grounds on which it was vacated'], (n) [Or, II. That, thereafter, such proceedings were had in such action, that it was finally determined in favor of this plaintiff", and judgment was rendered for him therein.] III. Libel. 598. General Form, where the Words are Libellous on their Face. I. That on the day of , 18 , the defendant maliciously (o) [composed and] published concerning the plain- tiff, {p) in a newspaper called the [or, in a handbill, (a) If the order of arrest set forth in ing S. C, 4 E. D. Smith, 647 ; Fry i). the complaint is not void, the com- Bennett, 5 Band/., 54. plaint must state that the order was The averment usual in the old prece- vacated, or judgment was rendered for dents, — that the defendant, well know- the defendant ; or otherwise show that ing the premises, &c., maliciously in- It has been avoided by competent au- tending to injure tlie plaintiff, &c., and thority. SearU v. McCracken, 16 How. to bring him into great scandal and Pr., 262 ; but compare, however, Fort- disgrace, and to cause it to be believed man v. Eottier, 8 Ohio St., 548. that the plaintiff had been guilty, — (o) A general averment of malice is were not averments necessary to be sufficient ; and it is not necessary to proved, but mere suggestions, by way aver want of probable cause. Purdy t>. of inducement to the libel, and ere su- Carpenter, 6 How. Pr., 861. perfluous under the Code. Coleman v. Where the matter charged is libel- Southwick, 9 Johns., 45. lous as matter of law, an allegation that {p) The Code has dispensed with the it was false and malicious is unneces- necessity of stating in a complaint for sary ; and if it were necessary, an alle- libel, by way of inducement, extrinsic gation that it was a libel is a sufficient facts necessary to show the apphcation allegation of falsehood and malice, of the words charged to the plaintiff. Hunt V. Bennett, 19 If. Y., 173 ; affirm- Culver v. Van Anden, 4 Alibotts' Pr., 490 ABBOTTS- FORMS. Actions for Injuries Respecting the Person. which he caused to be circulated and posted], (q) at , * the 'false and defamatory matter followiug, (r) to wit [copi/ of the article cow.plained of ; or say, a certain article, containing the false and defamatory . tnatter following, to wit: and give extracts from, the article, including all the ohjectionable mat- ter]. (s) II. That by moans of said publication the plaintiff was injured in his reputation, (i!) to his damage dollars. 375. And on demurrer to a complaint for libel, containing the averment au- thorized by section 164 of the Code, that the words complained of were published "concerning the plaintiff," the court is bound to assume that the article referred to the plaintiff. Wes- ley 11. Bennett, 5 Abbotts' Pr., 498. (g) Alleging that defendant sent a letter to the plaintiff, and the same was, by meaus of such sending thereof, received a,nd read by plaintiff,' and thereby published by the plaintiff, is bad; for the letter is to be presumed sealed, and sending a letter is not pub- lication. Lyle «. Clason, 1 Cai., 581. (?■) It has been customary to say "that the defendant on, &c., falsely and maliciously published, &c., the false, malicious, scandalous, and defam- atory matter following." This redupli- cation of words is wholly useless. (*) A declaration for a libel must set it out. It is not enough to state its purport. Wood i\ Brown, 6 Taunt., 169 ; S. C, 1 JSriff. Com. L. JR., 560. It id not necessary to set out the whole of the obnoxious jjublication, but the pleader may extract only particular passages complained of, provided their sense be clear and distinct. Culver i). Van Anden, 4 Abbotts' Pr., 375 ; Cheet- ham «. TiUotson, 5 Johns., 430. If the libellous article was published in a foreign language, set it out in the original, and aver also its meaning in English. See Lettman v. Ritz, 3 Sandf., 734 ; Keenholts d. Becker, 3 Den., 340 •; Wormouth v. Cramer, 3 Wend., 395. We do not consider inuendoes neces- sary under the Code, where the words complained of are libellous upon their face. See note («), infra. (i) Here aver special damage, if any. See notes (g) and (z), infra. In actions for libel, the law in New York is well settled, that when the court can discern an injurious meaning in the plain and natural purport of the publication itself, some damage is to be presumed ; but when the words are not, in their natural and obvious con- struction, injurious, the plaintiff must aver and prove special damage. Stone V. Cooper, 2 Den., 293 ; Bennett v. Wil- liamson, 4 Sandf, 60 ; Caldwell ■v. Ray- mond, 2 Abbotts' Pr., 193. If the injury was wilful or intention- al, if express malice is proved, the jury are at liberty to award damages, not only to compensate the actual and pe- cuniary loss, not only upon the ground of compensation for the mental suffer- ings of the plaintiff, the public dis- grace, &c., but they may further award exemplary ' damages. Fry v. Bennett, 1 Abbotts' Pr., 289 ; Hunt v. Bennett, 19 Sf. 7., 173. See, also, TiUotson v. Cheetham, 3 Johns., 50 ; Hoyt «. Gels- ton, 13 Id., 141 ; Wort V. Jenkins, 14 Id., 352 ; Woodward v. Paine, 15 Id , 493 ; King v. Root, 4 Wend., 113 ; Fero ■0. Euscoe, 4 N. T. (4 Gomst.). 162; AUeu 11. Addington, 7 Wend., 9 ; 11 Id., 380 ; 12 Id., 215 ; but see Dain v. Wy- coff, 7 N. T. (3 SeU.), 191; and 2 Oreenl. Ev., § 253, n. 2, and cases there cited. COMPLAINTS. 491 Liibel : Relating to Trade, &c. 599. Tlie Sa7ne, where the Libel was Piiblished in Defendant's Newsjpajper. I. That at the time hereinafter mentioned the defendant (m) was the editor, publisher, and proprietor \or either, as the case may he / or, the defendant W. X. was the editor, and tlie de- fendant Y. Z. Avas tlie publisher and proprietor] (v) of The , a newspaper published at II. That on the day of > 18 , the defendant maliciously composed and publislied concerning the plaintiff in said newspaper [or, if only the publisher is sued, maliciously published concerning the plaintiff in said newspaper ; or, if both author and publisher are sued, the defendant W. X. ma- liciously composed for publication, and the defendant Y. Z. maliciougly publislied in said newspaper], {w) [continue as in Form 59ii,from the *]. 600. For Libel Relating to Business or Profession, {x) I. That at the time hei'einafter mentioned the plaintiff was a (m) An action of libel may be main- Oreenl. Ei\, § 416 ; 2 Starkie on Slan- tained against two or more defendants, der, 28-34 ; Dunn v. Hall, 1 Carter though the general rule is otherwise as (Iiid.), 344. to slander. Words uttered by one are (v) It seems, that an allegation tliat not the words of another. But with the defendant was the proprietor of the respect to libels, if one repeat and newspaper is sufficient, without other- another write and a third approve wise alleging that he published it, or what is written, all are makers of the was concerned in its publication. Hunt libel. Thomas v. Rumsey, 6 Johns., 26. v. Bennett, 19 iV. T., 173 ; affirming S. A receiver of a newspaper concern, C, 4 JS. D. &inith, 647. pending a suit to settle the partnership (m) It is desirable, in an action found- accounts of its proprietors, will be per- ed on a newspaper article not libellotis sonally responsible for any publication on its face, to name the defendant as therein which is improper, although being author as well as publisher, the order of his appointment directs where the fact is so ; inasmuch as to that the defendants may continue to authorize a recovery against a put- superintend the editorial department. Usher only, in such case, it is necessary Marten v. Van Schaick, 4 Paige, 479. to aver and prove actual knowledge on But an assignee of a newspaper estab- his part of the extrinsic facts relied on lishment, as a collateral security, is not to show the article libellous. See note liable for a libel published in it. As to (c), infra. the general doctrine respecting the lia-^ (a) This form is to be employed only bility of publishers and proprietors of wlien the words charged bore some re- newspapers, of booksellers, &c., see 2 lation to the plaintiff in his business or 492 ABBOTTS' FORMS. Actions for Injuries Respecting the Person. physician, practising as such, at , and was of good name :ind f^redit as such phj-sician. 11, [Insert first paragraph from Form 698.] IIL That by means of said publication the plaintiff was injured in his reputation, and in his said good name and credit as a phj'sician, and in his practice as such, to his damage dollars, (y) 601. The Same, hy Merchants, Partners, (s) I. That at the time hereinafter mentioned the plaintiffs were [and still are] partners, engaged in business as merchants in buying and selling drygoods at , under the firm-name of A. B. & Co., and were of good fame and credit as such firm. II. [Insert paragraph I. from Forin 598.] III. That by means of said publication the plaintiffs were in- jured in their reputation, and in the good name and credit of their firm, and in their said business as merchants, to their damage dollars. 602. For Words not L^bello^ls on their Face. Charge of Crirp^e. I. That at the time hereinaftev mentioned the house of the defendant had been burned down, and it was suspected that it had been feloniously set on fire. II. That the defendant, knowing the premises, on the day of ) 18 , maliciously composed and published con- cerning the plaintiff the following false libel, to wit: "He," meaning the plaintiff, "kindled the fire," meaning the fire in official capacity. Suoli capacity should (z) As to the doctrine that an action be averred only in general terms. See for libel will only lie upon words con- 2 OreeiU. Ev., § 413. In other cases, it cerning distinguishable persons, and is not necessary to aver that plaintiff cannot be brought upon words which was of good reputation, though this has relate to a class or order of men, see been customary. The law presumes Sumner i). Buell, 12 Johns., 475 ; Ryck- him to have enjoyed a good reputation, man «. Delavan, 25 Wend., 186 ; revers- until the contrary is shown, which may ing White t>. Delavan, 17 Id., 50. be, as matter of defence. Partners may sue for a libel upon (y) In an author's action, for a publi- them in respect of their business, but cation disparaging his copyright work, can recover only for injury. to the bud- special damage must be alleged. Swan ness or credit of the firm. Taylor o. V. Tappan, 4 Cusli. (Mass.), 104. Church, 1 S. D. Smith, 279. COMPLAINTS. 493 Libel : Words not Libellous on their Face. defendant's house, " and I can prove it," thereby meaning that the plaintiff had feloniously set fire to said house ; to the dam- age of the plaintiff dollars. 603. The Same ; — Charge of Dishonesty^ c&c, in business, {a) I. That the plaintiff, prior to and at the time of the commis- sion of the grievances hereinafter mentioned, was engaged in business in the city of New York, as a banker and stock-broker, being a member of [designating his firm], {i) II. That he was then also one of the proprietors of the New York Daily Times, a newspaper published in said city. in. That until then he had always maintained a good repu- tation and credit, and that he has never been guilty of any fraud, deceit, stock-gambling, swindling, or any of the offences charged against him in the libel hereinafter set forth ; nor, until the publication thereof, was he ever suspected to be. IV. That the business of this plaintiff as banker and broker has always depended largely on the good reputation and credit of this plaintiff, and on the personal trust reposed in him, and in the said firm, by their customers and the public, in conse- quence thereof. V. And tliis plaintiff further shows, on information and belief, that in December, 1855, there was established a bank, called The Valley Bank of Maryland, organized, or purpoi'ting to be organized, under the laws of Maryland, and by residents thereof; that notes of said bank were issued and ])ut in circula- tion ; that the law ot Maryland requires security to be given for the payment of notes issued by a banking coi'poratioif, but what security, or to what amount, this plaintiff does not know ; that no security for the payment of said notes, sufficient either to meet the requirements of said law of Maryland, or to pro- (a) Tina is, ■with some modification, sary to support aa inuendo, — is still in the complaint which was sustained in force, except as to sucli facts as are Wesley v. Bennett (5 Abbotts' Pr., 498), requisite to show the application of the a demixrrer to it being held frivo- words to the plaintiff. Blaisdell v. lous. B.a,ym.ond,4: Abbotts' Pr.4AG; Caldwel) (6) Tlie rule oi the former practice, v. Raymond, 2 Id., 193 ; Culver v. Van — which required the plaintiff, in an Anden, 4 Id., 375; Pike v. Van Wor- action for defamation, to state by way mer, 5 Sow. Pr., 171 ; 6 Id., 99 ; Fry of inducement any extrinsic facts neces- v. Bennett, 5 Band/., 54. i94: ABBOTTS' FORMS. Actions for Injuries Respecting the Person. vide actually for the payment of said notes, was provided ; that during the summer of 1856 tlie said bank stopped the payment of its notes, and became insolvent, and lias not since i^one on with business ; and that it has since been generall_y believed that the organization and management of said bank were fraudulent, and conducted with intent to defraud the public, by the issue of notes of said bank without provision or security for the payment of them, and by suffering them to remain unpaid. YI. And this plaintiff further shows, that he never was, in any way, directly or indirectly, connected with said bank, or interested therein ; nor was he, in any way, cognizant of the manner in which it was organized or managed ; nor was he, previous to the commission of the grievances hereinafter men- tioned, ever suspected so to be. VII. And this plaintiff further shows, on information and belief, that during the year 1848 or 1849 there was established, or reputed to be established, a bank known as the Plainfield Bank ; that said bank failed; after issuing its notes to a very large amount, and that it was generally believed to have been organized and managed with intent to defraud the public. VIII. And thisplaintiffj'Tnrther shows, that the defendant was, at the time hereinaf^r mentioned [and still is], the pub- lisher and proprietor o,J^'-the New York Herald, a newspaper published in the city ofjlSlew York. IX. That the defendant, well knowing the premises, (c) did, (c) ifi an action for libel against one the cases of constructive malice are ex- sued as editor and proprietor of a news- clusively such as involve words capable paper, not as author or composer of the of bearing in themselves a libellous article, upon words not libellous on meaning. The law in such cases rea- their face, the complaint should aver sonably presumes that the defendant that the extrinsic fact on which the meant to say exactly what he did say. plaintiff relies to show the libellous But the law presumes no more than character of the words, was known to this, and when a hidden defamatory defendant at the time of the publica- meaning is sought to be attributed to tion. Presumption of malice can only words in themselves innocent, and on arise when tlie publication, on its face, their face containing no such sense, by is capable of conveying an injurious extrinsic facts outside and independent effect. Every man is presumed to fore- of the publication itself, the knowledge see and intend all the mischievous con- of such facts must be shown, by aver- sequences that may j ustly be expected ment, to have existed in the breast o1 to ilow from his voluntary acts. Brft the defendant at the time of pnblica COMPLAINTS. 495 Libel : Words not Libellous on their Face. on the 15tli day of March, 1857, compose and publisli in said newspaper, concerning the plaintiff, and concerning the premises, the false and defamatory matter following, ((f) to wit :^ " The stock operations of the proprietors of the Daily Times to-day (meaning the 14th day of March, 1857) were as fol- lows : — "Bonght 100 New York Central R. E., 96f cash [o&c, die, setting forth items]. "The market does not suit these stock-jobbers (meaning this plaintiff and others, and meaning that this plaintiff' had been guilty of violating the statute of this State respecting stock- jobbing), {e) They cannot realize on any of their stocks with- tion. Smith v. Ashley, 11 Mete, 367 ; Dexter v. Spear, 4 Mass., 115. A publisher may be liable for the publication of an article clearly libel- lous, which was inserted in his paper ■ivithout his knowledge or consent ; but not when he is not shown, and cannot be presumed, to have known that the articlewas intended to bear an injurious meaning. It does not satisfy tliis rule that the complaint contains a general averment that the defendant published the words "falsely and maliciously." That is not suiBdient, when the extrinsic I'act relied on to make the publication libellous is independent of the words published; in such cases, the pleader should bring home to the defendant a knowledge of that fact. Caldwell b. Raymond, 3 Ah- lotti^ Pr., 193. Compare, however, Hunt V. Bennett, 19 N. T., 173. (d) For phrase to be employed, wliere it is desired to set out only ob- jectionable extracts of an article, see paragraph L of Form 598, supra, and note (s). (e) The proper use of inuendoes, in a complaint for defamation under the Code, is difScult to be determined. Before the Code, the position of the defendant in such an action was most embarrassing ; and the rules of plead ing and of evidence rendered it very difficult in many cases to secure justice to him. By the Code, the most serious of these difficulties have been removed ; but by so much as the defendant's path has been illuminated, by so much the course of the plaintiff has been thrown into shadow. The commissioners seem to have overlooked the peculiarity of the rules of pleading formerly applica- ble to this class of declarations, and they have omitted to define with any distinctness the mode of complaining to be employed. There has been much diversity of practice, therefore, in this respect, especially in regard to the em- ployment of inuendoes. In many cases, — in the majority, probably, — the old mode of employing innendoes is stOl followed. On the otlier hand, it is not uncommon in practice to meet com- plaints in which no inuendoes what.- ever are employed ; and, from the form of complaint suggested for the action of libel by the commissioners {First Report, 267), it would seem that they did not consider that inuendoes would be requisite in any case. In our view, inuendoes are in part dispensed with \inder the new system, apd in part retained • rJ-96 ABBOTTS' FORMS. Actions for Injuries Respecting the Person. out loss, and have to make small purchases to do all in their power to sustain prices. Their capital is locked up in so many outside speculations, that their operations in Wall-street (mean- ing this plaintiff's said business of buying and selling stocks as aforesaid) must, for a time at least, be on rather a limited scale. The profits of the Valley Bank (meaning the Valley Bank of Maryland aforesaid) swindle (meaning that said bank was organized or managed with intent to defraud the public) amounted to between two and three hundred thousan-d dollars ; but they were divided among four or five, the Times proprie- tors (meaning this plaintiff and his copartners in the New York Times) getting but about one-fourth of the plunder (meaning that this plaintiff was connected with others in swindling the public by means of said bank, and received a portion of the proceeds of the swindling). 1. Where the words used are not libellous in themselves, but are made so by some extrinsic matter alleged by way of inducement, inuendoes are requisite to connect the words charged with the extrinsic facts. 2. The same rule applies in occasion- al cases, where the words are made libellous by reference to some extrrnsic matter not necessary to be pleaded by way of allegation, — e. g., a public stat- ute. In such case, the extrinsic fact should be suggested by an inuendo. 3. A pleader wiU be allowed, where it is obviously convenient, to employ an inuendo by way of allegation of the import of the words charged, without going through the form of making a . prefatory, averment of the extrinsic facts. This is not strictly a proper employment of the inuendo, but it will be indulged where the convenience of pleading demands it. See Elaisdell v. Raymond, 4 Abbotts' Pr., 446. Contra, Caldwell v. Raymond, 3 Id., 193. In other cases than the above, — e. g.,~ to connect the words charged with the colloquium, or to show the meaning imputed to words libellous in them- ■we consider that inuendoes may be dispensed with ; and it will be always a matter of uncertain safety to rely on an inuendo, unsupported by a distinct prefatory averment, to show a libellous meaning not evident from the words themselves. The inuendo cannot enlarge the meaning of the words spoken, beyond the averinent of the intention by which the speaking of the words isintroduced, where the words themselves are am- biguous, and do not necessarily impute a crime. Weed v. Bibbins, 33 Barb., 315 ; and see Fry -o. Bennett, 5 Sandf., 54. As to the office of the inuendo as em- ployed prior to the Code, consult Pel- ton 1). Ward, 3 Oai., 73 ; Mott «. Corn- stock, 7 Oow., 654 ; and Id.. 658, note ; Tyler v. TiUotson, 3 Bill, 507 ; Butler i>. Wood, 10 How. Pr., 233; Tillotson ■B. Cheetham, 3 Johns., 56 ; Van Vech- ten V. Hopkins, 5 Id., 211 ; Lindsey v. Smith, 7 Id., 359 ; Vaughan v. Havens, 8 Zei.,>109; Fry «. Bennett, 5 Sandf., 54 ; Andrews v. Woodmansee, 15 Wend., 333; Cornelius v. Van Slyck, 21 Id, 70 ; CrcsweU v. Weed, 35 Id., 621. COMPLAINTS. 497 Libel : Words not Libellous on their Face. "They (meaning this plaintiff and others) furnished the whole capital (meaning that this plaintiff, jointly with others, furnished all the capital of the said Valley Bank, and with the intent that it should be used in defrauding the public), which was small (meaning that the capital so furnished was purposely made insufficient to furnish a requisite security for the payment of the bills or notes of said bank, and further meaning that it was insufficient to be in compliance with the requisition of the laws of Maryland), for one-fourth of the profits. " The Valley Bank (meaning said Vall.ey Bank of Maryland) exploded (meaning failed) sooner than was intended (meaning that the said Valley Bank was founded -with the intention that it should fail). It was the intention of its originators (meaning the originators or founders of the said Valley Bank of Mary- land, and meaning that this plaintiff was one of them) to get out a circulation of half a million before the collapse (meaning before the alleged intended fraudulent failure of said bank, and meaning that it was tlie intention of the founders of said bank and of this plaintiff to issue notes of the said bank to the amount of half a million of dollars, and receive the money therefor, and then cause the said bank to fail, and refuse to pay the said notes) ; but some of the machinery at work gave way (meaning that the plans, imputed as aforesaid to this plaintiff, for carrying into effect the said supposed swindle were unsuc- cessful), and brought the concern (meaning the said Valley Bank of Maryland) to a dead-lock (meaning that the said fraudulent schemes, so charged to this plaintiff as aforesaid, were in part unsuccessful, and in consequence thereof tlie said Valley Bank of Maryland failed sooner than its founders had intended, and meaning as aforesaid that this plaintiff and otliers founded it with the fraudulent intention that it should fail). The old Plainfield Bank (meaning the bank of that name heretofore mentioned) was a small affair compared with the Valley Bank (meaning the said Valley Bank of Mai-yland). The ultimate fate of the Valley Bank financiers (meaning among others this plaintiff, and meaning that this plaintiff was pecuniarily interested in and connected with the said Valley Bank) will not differ from that which has already overtaken the Plainfield Bank managers." X. That the defendant published said article with intent to Vol. I.— 32 498 ABBOTTS' FORMS. Actions for Injuries Respecting the Person. charge tliis plaintiff (_/) with violating the statute of this State relative to stock-jobbing, and to cause it to be believed that he was in danger of becoming insolvent ; and with the furtlier in- tent to cause it to be believed that the Yalley Bank of Mary- land was founded by this plaintiff and his copartners, the other proprietors of the New York Times, for the purpose of issuing from said bank the notes thereof to the amount of half a million of dollars, of receiving the money therefor, and then of causing the said bank to fail, and refusing to pay said notes ; and that for such purpose this plaintiff and his said partners furnished a capital for said bank purposely insufficient either to meet the requirements of the laws of Maryland, or to provide actually for the payment of said notes, on the agreement that they should receive for so doing one-quarter of the proceeds gained from said scheme ; and that said article was so understood by those who read it. XI. That by reason of the premises the plaintiff has been in- jured in his reputation and credit, {g) to his damage dol- lars. Second. And for a further cause of action, &c. 604. For Libel hy Signs. That on the day of , 18 , at , the defend- ant, contilving to injure the plaintiff in his reputation, and to bring him into public contempt and ridicule, did, in the public street [or, square or common] of said , wrongfully and maliciously make, and cause to be made, an effigy or figure in- tended to represent the person of the plaintiff, and hung up and (/) It is proper to aver of an ambig- injurious meaning in tlie plain and nous article that it was published with natural purport of the publication it a particular intent, and was so under- self, some damage is to be presumed, stood by its readers (or hearers), and to and it is not essential to allege special prove this averment on the trial. Gib- damage (Perkins v. Mitchell, 31 Barb., son V. Williams, 4 Wend., 330 ; Wesley 461) ; but when the words are not, in v. Bennett, 5 Abbotts' Pr., 498. This their natural and obvious construction, is more proper than to employ an inu- injurious, the plaintiflf must aver and endo for the same purijose, as was prove special damage. Caldwell «. allowed in Blaisdell «. Raymond, 4 Raymond, 2 Abbotts' Pr., 193 ; Stone Id., 446. v. Cooper, 2 Ben., 293 ; Bennett v. Wil {g) When the court can discern an liamson, 4 Sand/., 60. CX)MPLAINTS. 499 Slander : Words Actionable in Themselves. caused to be hung up the said effigy, in the view of the neigh- bors of tlie plaintiff and of the public then and there assem- bled, (A) by means of which the plaintiff has been greatly in- jured in his reputation, to his damage dollars, (i) IV. Slander. 605. Where the Woi'ds are Actionable in Themsel/ves. That on the day of , 18 , {j) at , the de- fendant, (k) in the presence and hearing of one IVT. N". [or, of a number of persons], (/) maliciously (r«) spoke concerning («) the (7t) Blackstone condders, tliat as to libel by signs or pictures, it is neces- sary to show, by proper innendoes and averments of defendant's meaning, the import and application of the scan- dal. 3 Blackst. Com., 126. Tlie prece- dents, however, so far as we liave no- ticed, omit inuendoes in cases of this description. We discern no reason for distinction in this respect between libel by signs and libel by words. If the sign is one evidently defamatory by a mean- ing Txniversally familiar, no averments and no inuendoes are requisite. If ex- trinsic facts are needed to show the sense in which the sign was used, these must be averred, and the proper inuendoes employed to connect the sign charged with the prefatory matter. (i) An assault and battery committed with a purpose to ridicule the plaintiff or bring him into contempt, partakes of the nature of libel ; and in order to recover damages for the injury to repu- tation, as well as for that to the person, the complaint should be for assault and battery, but should aver intent to de- fame, and injury to reputation, in ad- dition to the usual avennents in actions for assault and battery. Compare Shel- don D. Carpenter, 4 N. Y. (4 Gomat.), 579 ; Watson «. Hazzard, ii Code R., 218. Thus, it has been held that, in a complaint for assault and battery, aver- ments of the business of the parties, that the assault was for the purpose of compelling the plaintiff to give up his business, and of bringing him into dis- grace and ridicule, and that the assault, c&c, caused him to be ridiculed by, &c., though not essential to a cause of ac- tion, are not immaterial. Tlie motives and intent, and the consequences re- sulting, are material on the question of damages. Root v. Foster, 9 How. Pr., 37. ij) It is unnecessary to aver a repe- tition of the same words at divers other times. The repetition may be given in evidence without being pleaded. Gray « Nellis, 6 How. Pr., 290. A variance between the complaint and the proof, in respect to the time of the slander, is immaterial. Potter v. Thompson, 32 Barh., 87. (/c) As a general rule, an action of slander will not lie against two per- sons ; but it seems that where the words are alleged to have been uttered in pursuance of a conspiracy between two or more defendants, the action may be maintained. Forsyth v. Ed- miston, 2 Abbotts' Pr., 430. (Z) The complaint is not sufficient, un- less it charges the speaking of the words, of and concerning tlie plaintiff, in tlie presence and hearing of some per- son or persons. Anonymous, 3 How. Pr., 400 ; Wood v. Gilchrist, 1 Code B., 117. But plaintiff may amend on tha trial, if defendant is not misled. Wood V. Gilchrist, Id. 500 ABBOTTS' FOEMS. Actions for Injuries Eespecting the Person. plaintiff (f)) the false and defamatory words following : (jc) [sei ' out the words complained qf{q) as accurately as jjossible ;] (r) whereby the plaintiff" was injured in his reputation, to iiis dam- dollars, (s) aver- show the It has been held, however, that an averment that the words were uttered and pubhshed, imports an uttering in the presence and hearing of others. Duel V. Agan, 1 Code B., 134 (ml Even where the occasion, upon which the words for which an action of slander is brought were spoken, re- pels any presumption of malice, and proof of it is necessary to maintain the action, it is sufficient to aver that they were spoken maliciously, without set- ting forth, in the complaint- the facta and circumstances which sHqw, the ex- istence of malice. Viele Abiotts' Pr., 1. (n) By section 164 of th| averment supplies the place o ■. meuts of extrinsic facts tl application of the words charged to the plaintiff. This averment is indispensa- ble. It cannot be supplied by an inu- endo. The averment in use before the Code, that the words were uttered " of and concerning the plaintiff," was al- ways held essential ; and if omitted, the statement, by way of inuendo, that the plaintiff was intended, would not cure the defect. Milligan v. Thome, 6 Wend., 412 ; Sayre ii. Jewett, 12 Id., 135. It was not enough even to say, that the words were uttered in the course of a discourse or conversation concerning the plaintiff. Titus «. Follet, 2 Hill, 318. (o) In an action for slander of a mar- ried woman, the husband must, former- ly, join with her, if the words were ac- tionable in themselves. If only ac- tionable by reason of special damage, the husband must sue alone. Klein v. Hentz, 2 Duer, 633 ; Beach ii. Ranney, 2 mil, 309 ; Code, § 1 14. But the acts »f 1860 (ch. 90, § 7), and 1862 (ch. 172, § 3), give the cause of action to the wife alone. (jf) An averment 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," &c., is bad ; though an allegation of their " substance" might be sufficient. Forsyth v. Edmiston, 2 AUotts'Pr., 430 ; Maitland v. Goldney, 2 East, 427 : Cook Cox, 3 Man. & S., 110; Ward v. Hark, %Jihns., 10; Finnerty «. Barker, .ieg. 06«., 316. '] .en the slanderous words were n i 1 a foreign tongue, the com- plaint sh )uld set them out in the origi- nal language, aver their meaning in English, and also aver that the persons present understood the language used. Keenholts i>. Becker, 3 Ben., 346 ; Wor- month V. Cramer, 3 Wend'., 395 ; Liett- man D. Ritz, 8 Bandf, 734. The com- plaint is, however, amendable in this respect, upon terms. 3 Bandf., 734. Where the complaint sets out lan- guage 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 irrelevant. Though it may not be necessary to allege in the complaint all 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. (r) Before the Code, 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 Olmsted «. Miller, 1 Wend., 506; Aldrich r.. Brown, 11 Id., 596 ; Keenholts •». Beck- er, 3 Den., 346 ; Fox v. Vanderbeck, .5 COMPLAINTS. 501 Slander : Respecting Trade, &c. 606. For Slander Respecting Plaintiff'' s Trade, with Special Dam.age. I. That a,t the time of the commission of the grievances here- inafter mentioned, the plaintiff was engaged in business as mer- chant \or otherwise'], and had always maintained a good reputa- tion and credit as such merchant, {t) II. (w) That on the day of , 18 , at , 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, (w) spoke concerning this plaintiff and concerning his Cow., 513 ; Howard v. Sexton, 4 N. Y. (4 Const.), 157 ; RtindeU b. Butler, 7 Barb., 260. Plaintiff was not bound, however, to prove aZl tlie words charged. If he proved some of them, and those proved were actionable, it was enough. Loo- mis ». Swick, 3 Wend., 205 ; Purple v. Horton, 1.S Id., 9. Compare also Dioyt B. Tanner, 20 Id., 190 ; Genet » Mitchell, 7 Johns.. 130. 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 s. Emigh, 6 WeThd., 407 ; MiUigan v. Thorne, Id., 412. The provisions of the Code respect- ing variances, however, apply to these actions, and moderate the strictness of the old rule requiring the plaintiff to prove the words as. laid. Under the Code, one statement of each distinct Islander, as a distinct caupe of action, is all that is proper to be inserted in the complaint ; and the action will not fail for variance between the words charged and those proved, unless the defendant shows himself to have been actually misled, or unless the variance amounts to an entire failure of proof. («) The expenses of the suit cannot be taken into view in estimating the damages. Hicks v. Foster, 13 Ba/rb., 663. (t) In an action for words actionable only because spoken of the plaintiff in his business or profession, appropriate averments by way of inducement and colloquium should be inserted. If a physician brings an action for the speaking of words which are disgrace- ful to him in his profession, he must, aver in his complaint that he was a practising physician 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. {u) In pleading, in an action for slan- der, the same averments are requisite under the Code as at common law, with one exception ; viz., that even though it may be uncertain to whom the words were intended to apply, it is no longer necessary to insert in the complaint any averments showing that they were intended to apply to the plaintiff. Pike D. Van Wormer, 6 How. Pr., 99 ; and see noU (n), supra. If words are ambiguous, and the sense in which they are generally used docs not necessarily make them slan- derous, the complaint must allege such circumstances as wiU show that they were uttered with a slanderous mean- ing. Pike tJ.Van Wormer, 5 Htiw. Pr., 171 ; 6 Id, 99. («) If the slander was couched in r 502 ABBOTTS' FORMS. Actions for Injuries Respecting the Person. said business the false and defamatory words following, to wit: " He keeps false accounts, and I can prove it" (w) [or otherwise state the words oom.plained of. ] {x) III. That by reason thereof, a number of persons, and in par- ticular [name the persons referred to], (y) who had theretofore been accustomed to deal with the plaintiff in his business afore- said, ceased to deal with him, and the plaintiff was thereby deprived of their custom, and of the profits which he would otherwise have made by a continuance of such dealing, (2) and was otherwise injured in his reputation, to his damage dollars; 607. For Slander of Title, (a) I. That the plaintiff being the owner in fee [or other estate] of a certain farm, situate in the town of , and county of [briefly designate the property in question], caused the same, on the day of , 18 , at , to be offered ambiguous terms, it may be averred that the defendant, by means of the words, insinuated and meant to be un- derstood by the hearers as charging the plaintiff with the crime imputed. Rundell v. Butler, 7 Barb., 2G0. But if the words are unambiguous, such aver- ment is unnecessary. Wah-ath u. Nel- lis, 17 Sow. Pr., 72. (w) That an action lies for words to this effect with the averments in the above complaint, see Burtch v. Nicker- Bon, 17 Johns., 317 ; Backus «. Richard- son, 5 J. Miller, 3 Bai^., 630 ; Keenholts v. Becker, 3 Den., 346 ; Beach v. Ranney, 2 Hill, 309 ; Herrick ■». Lapham, 10 Johns., 291 ; Olmsted v. Miller, 1 Wend., 506 ; Sewall «. Catlin, 3 Id., 291 ; Williams r. HiU, 19 Id., 305 ; Shipman «. Burrows, 1 Mall, 399 ; Harcout «. Harrison, Id., 474. [a) As to this action in general, see Gerard v. Dickinson, 4 Coke, 18 ; Har- grave v. Le Breton, 4 Burr., 2423 ; Ear] of Iforthumberland ». Byrt, Cro. Jac., 168 ; Vaughan v. Ellis, Id., 213 ; Smith COMPLAINTS. 503 For Slander of Title. for sale [&>\ to be put np and exposed for sale by public auction]. II. That the defendant, well knowing the premises, and ma- liciously [and without probable cause] (J) contriving to cause it to be suspected that the plaintiff did not own said farm, and could not sell the same, and to prevent him from effecting a sale thereof [procured one M. N. to attend said sale, and ma- liciously procured said M. IST. to state, and] did maliciouslj'- (c) then and there publicly state [through the said M. N.], in the presence and hearing of 0. P. [or, of many persons then and there assembled for the purpose of bidding on said property and buy- ing the same], concerning the plaintiff and his said property, the false and defamatory matter following, to wit: [sei out the words complained of, with suitable inuendoes~\. III. That by reason thereof the said 0. P. id) was [or, various persons, and in particular {naming the persons referred to, who attended on said auction sale for the purpose of buying thereat, were] dissuaded from bidding therefor, and refused and still do refuse to purchase the said property in consequence thereof ;(e) and the plaintiff has been unable to sell the same, [and has been obliged to expend dollars in and about the attend- ance upon said auction], and has been otherwise greatly in- jured, to his damage dollars. B. Spooner, 3 Taunt, 246 ; Pitt v. Don- whereby the plaintiff was prevented ovan, 1 Maule & 8., 639 ; 2 Oreenl. Ev., from obtaining a loan on the mortgage 428. of the property, or from selling it, it is For a complaint in an action to re- essential to name the person or persons cover damages for false statements who refused, for that cause, to loan or made by the defendant in regard to the purchase. If they are not named, the patent and manufactures of the plain- complaint is demurrable. Linden v. tiff, to the injury of his business, see Graham, 1 Buer, 670. Snow V. Judson, 38 Barb., 210. (e) The damage sought to be recov- (b) The clause in brackets is proper, ered must be specially alleged in the Bailey v. Dean, 5 Barb., 297. complaint, and substantially proved on (c) To maintain the action for slan- the trial. It must be a pecuniary dam- der of title, the words must not only age, and must be the natural and legal be false, but they must be uttered ma- consequence of the wrong. Kendall v. liciously. Stone, 2 Sandf., 269 ; 5 N. Y. (1 SeU.), (d) In an action for slander of title, 14. 504: ABBOTTS' FOHMB. Actions for Injuries Respecting the Person. V. Othee Yiolations of Personal Kights. 608. For Enticing away Plaintiff^s Wife, {f) I. That M. B. is, and at the times hereinafter mentioned was, the wife of the plaintiff. II. That in the month of , 18 , while the plaintiff was living and cohabiting with and supporting her, in , and while they were living together happily as man and wife, * the defendant, well knowing her {g) to be the wife of the plaintiff, and wrongfully contriving and intending to injure the plain- tiff, (A) and to deprive hiin of her comfort, society, and aid [while this plaintiff was temporarily absent], maliciously en- ticed her away from the plaintiff's and her then residence in , to a separate residence, in , and has ever since there detained and harbored her, against the consent of the plaintiff, and in opposition to his utmost peaceable efforts to obtain her from the defendant's custody, control, and influence. III. That by reason of the premises, the plaintiff has been and still is wrongfully deprived by the defendant of the com- fort, society, and aid of his said wife, and has been put to great trouble and expense in endeavoring to recover her from the de- fendant, and has' suffered gi'eat distress of body and mind, to his damage dollars. 609. For Criminal Conversation with Plaintiff''s Wife, {i) I. and II. [As in preceding form to the *, continuing'] ; the defendant wrongfully contriving and intending to injure the plaintiff and to deprive him of the comfort, society, aid, and assistance of his wife, on the day of ,18 , at [forcibly and without the consent of the said M. B., and], wick- edly, wilfully, and maliciously debauched and carnally knew the said M. B., without the privity or consent of the plain- tiff (i) (/) This is substantially the com- crim. con., is an action for injury to plaint in Scherpf v. Bzadecky, 1 Ab- the person. 1 OJiit. PI., 137 ; 3 Id., botts' Pr., 366. 265 ; 3 Kent, 129 ; 3 Blackst. Com., (g) See 3 Chit. PL, 642, note z. 138 ; Delamater ». Eussell, 4 How. Pr., (fi) The intention is material. Hutch- 234 ; 3 Code B., 147. eson v. Peck, 5 Johns., 196. ( j) See Smith «. Hasten, 15 Wend (i) An action by the husband, for 270. COMPLAINTS. 505 For Seduction. III. That thereby the aiFection which the said M. B. there- tofore had for the plaintiff was alienated and destroyed, and the plaintiff' was deprived of the comfort, society, aid, and as- sistance which he otherwise wouljj have had from the said M. B., and has saff'ered great distress of body and mind, {h) to his damage dollai's. 610. I'or Seduction. {I) I. That on the day of , 18 , at [while the plaintiff was employed as a servant in the family of thg defendant], the defendant, with force and arms, ill-treated the plaintiff', and made an indecent assault npon her, and then and there forcibly debauched and carnally knew her, whereby she became pregnant and sick with child, and so remained and con- tinued for the space of mouths; at the expii-ation of which time, on the day of , 18 , she was delivered of a child, of which she was pregnant as aforesaid. II. That in consequence of said indecent assault made by the defendant on the plaintiff", she has suffered greatly in lier health, and became sick and disordered, and so continued for the space of months, during all which time she suffered great pain, and was prevented from transacting lier necessary business and affairs, and has been greatly disturbed in her peace of mind, and has been otherwise greatly injured, to her damage dollars. 611. J^or Seduction of Plaintiff'' s Daughter or Servant. I. That at the times hereinafter mentioned, one M. N. was the servant [and the daughter] of the plaintiff. II. That on the day of , 18 , at , the defendant, well knowing the said M. E". to be the servant [and daughter] of the plaintiff, and wrongfully contriving and in- tending to injure the plaintiff, and to deprive him of her as- sistance and service, did, wickedly, wilfully, and malicious- ly, and without the privity or consent of the plaintiff" [for- cibly and against the will of the said M. N., abduct her, w, (]c) That tills is a good ground for (V) This is the complaint in Koenig damages, see Dain v. Wycoff, 7 N. T. v. Nott, S Abbotts' Pr., 384, inserting tha (3 Seld.), 191. word " forcibly" before " debauched." 506 ABBOTTS' FORMS. Actions for Injuries Respecting the Person. entice and persuade the said M. IS", to leave the residence and service of this plaintiff, and did] then and there debauch and criminally know her. III. That by reason of the premises, the said M. N. became pregnant and sick with child, and so remained for the space, of months; that during that time she was unable to attend to the duties of her service, and the plaintiff was thereby de- prived of her service, (w,) and was obliged to and actually did expend dollars in nursing and taking care of her in her said pregnancy and sickness, and was otherwise greatly injured, to his damage (n) dollars. 612.' Against the Officers of an Election, for Refusing Plaintiff's Vote, {o) I. That the defendants were the inspectors [or, judges] of an election iield at , in and for the [naming t/ie district'] in the city [or, county] of , for the purpose of electing [des- ignate officer, — e. g., thus, — ] one justice of tlie peace in and for said town of ; and being duly elected [or, appointed] and qualified {p) as such inspectors [or, judges], the defendants had the polls open for said election at the town-house in said town, between the hours of and II. That the plaintiff then was and for the space of had been a citizen of the State of , and then was and for the space of had been resident in said town [or ward, or otherwise, according to the statute'], and a legal elector at said election. III. That as such elector, the plaintiff, while the polls were so open, duly offered to the defendants his vote or ballot for the election of a justice of the peace, in and for said town, and requested them to receive the same. (m) Loss of service is an essential Nash's PI. & Pr., 245. In 3 Rumph. element in tlie case of action by a Prec, 797, it is said there should be a father or master for debauching child separate count for eacli ballot re- or servant: Knights. Wilcox, 15 Barft., fused. 279; Dain v. Wycoff, 7 N. T. (3 Seld.), (p) The aUegafdon that they were ^^1- duly chosen and qualified may not be (ra) As to rule of damages, see Peake's necessary. See Jenkins ». Waldron, 11 Hr. P. C, 55; Daiu «. Wycoff, 7 N. T. Jo7ins.,lU; Bentleyj). Phelps, 27 5ar6., (3 Seld.), 191. 524 ; People v. Cook, 8 IT. T. (4 Seld.)', (o) This form is, in substance, from 67. COIIPLAINTS. 507 Actions to Recover Possession of Personal Property. IV. That the defendants, not regarding their dnty, wrong- fully and maliciously (q) refused to receive or deposit the same, ■whereby he was deprived of his right to vote at said election, to his damage dollars. Section XXII. COMPLAINTS IN ACTIONS FOK THE RECOVERY OF THE POSSESSION OF SPECIFIC PERSONAL PROPERTY (REPLEVIN). [This action lies under the Code wherever replevin would lie under tlie Pwevised Statutes. The plaintiff must show an immediate right to the pos- session of the property, (a) In designating the goods, a description which is enough to identify them, as far as may be useful for the purposes of delivery by the sheriff, is suffi- cient, (b) It is not necessary to state the value of each separate article; b\it it is enough if the value of the whole is given, (c) (q) In New York, New Hampshire, Pemisylvania, and Indiana, it is held that malice must be shown, to sustain the action. Jenkins v. Waldron, 11 Johns., 114 ; Wheeler v. Patterson, 1 2f. H., 88; Weckerley ®. Geyer, 11 Serg. & S., 35 ; Carter v. Harrison, 5 Slack/., 138. It is held otherwise in Massachusetts, Maine, and Ohio. Lin- coln V. Hapgood, 11 Mass., 350 ; Osgood v. Bradley, 7 Greenl., 431 ; Jeffries v. Ankeny, 11 Ohio, 372. Compare Hum- phrey B. Kingman, 5 Mete., 163. (a) The remedy afforded by the former action of replevin is not taken away or impaired by the Code. Nichols L\ Michael, 33 iV. T., 204 ; Savage «. Perkins, 11 Sow. Pr., 17; and see Vogel v. Badcock, 1 Abbotts' Pr., 176 ; McCnrdy v. Brown, 1 Diier, 101. It may be brought by any one entitled to the immediate possession, against one having wrongfully taken or wrong- fully detaining ''the chattel. It is not now confined to the case of a chattel taken under pretence of distress, as stated by Blackstone. Pangburn v. Patridge, 7 Johns., 140, and cases there cited ; Cresson ■». Stout 17 Id., 116. As to the rules of pleading in the former action of rej)levin, see 2 liev. Stat., 533 ; Rogers v. Arnold, 12 Wend., 30; VS''right v. Bennett, 3 Barh., 451. The old practice required that the declaration should state a place cer- tain, wlthm the village or town ; but the omission was cured by the defend- ant's pleading over. Gardner t. Hum- phrey, 10 Johns., 53. (6) A declaration, desciibing certain articles of furniture by name and quantity, and adding that they were the same, and all the goods which de- fendant received at a particular time, and which were then in, and consti- tuted the furniture of a house desig- nated, sufEciently describes them. Root 11. Woodruff, 6 mil, 418. A complaint which claimed only a part of the property mentioned in the afRdavit and requisition, originally issued to the sheriff, was held good, it appearing that the other part of the property had been taken from the de- fendant by an attaching creditor be fore the summons could be served. Kerrigan v. Ray, 10 How. Pr., 313. (e) Root «. Woodruff, 6 Hill, 418. 508 ABBOTTS' FORMS. Actions to Recover Possession of Personal Property. Where goods wrongfully taken by one person, come into the possession of another, a demand upon the latter before suit against him should be averred, unless it is known that he cannot show that he came into the posses- sion in good faith and for a lawful purpose, (d) Where the relief to be obtained is changed by a delivery of the goods un- der the statute, it is not necessary to amend the complaint so as to demand only damages.] (dd) 613. For goods wrongfully taken from plaintiflf's possession ; — against the wrongdoer p. 508 614. For goods wrongfully taken from possession of plaintiff's lessee or bailee ; — against the wrongdoer 510 615. For goods wrongfully taken from possession of plaintiff's assignor ; — against the wrongdoer 511 616. Wrongful detention of goods 511 617. Against one having derived possession innocently 511 618. By seller against a fraudulent buyer of goods 513 619. Against a fraudulent buyer and his transferee 512 613.' I^or Goods Wrong/ ully Taken from Plaintiff'' s Possession ', — against the Wrongdoer, (e) I. That at the time hereinafter mentioned, the plaintiif was law- fully possessed of [briefly designate the goods], of the value of dollars, then and ever since his property, (y) (d) Barrett ii. Warren, 3 HiU, 348 ; properly presumed to have come into Pierce v. Van Dyke, 6 Id., 613 ; Hunter possession in good faith and lawfully. V. Hudson Iron & Machine Co., 30 {dd) Pugh ». Calloway, 8 0. St., 488. Bar!)., 493 ; Ely «. Ehle, 3 N. T. (3 («) This action was formerly replevin Comst.), 500 ; Tallman v. Turck, 20 in the cepit. It would not lie for em- Barh., 167. It is not necessary in blemeuts cut and taken by a person such case for the plaintiff to disprove who was at the time of the taking in the defendant's good faith and the possession of the land, though the act lawfulness of his purpose ; but the bur- be waste. Rich «. Baker, 3 Den., 79 ; den of proof is upon the defendant' to De Mott v. Hagerman, 8 Oow., 230. vindicate his possession, and show that (/) The plaintiff must show owner- a demand was necessary before the ship, or a special property, with an im- suit. It seems, therefore, to be the mediate right to the possession. Clark better opinion that in an action against v. Skinner, 20 Johns., 465, and cases such a one, a demand need not be there cited ; McCurdy ». Brown, 1 Duer averred in the complaint, and that the 101 ; Dodworth v. Jones, 4 Id., 301. case of Fuller v. Lewis, 3 Abbotts' Pi:, It is held, however, in Kuhland v. 383 ; S. C, 13 Sow. Pr., 219, where an Sedgwick, 17 Oal., 123, that either an averment of demand was held neces- allegation of ownership, or one of pes- sary upon demurrer, is not to be ex- session, is sufficient without the other, tended ; although the conclusion may to maintain this action, very well be justified in an action It seems that the proper course is to against an assignee for benefit of credit- describe the goods as the property of ors, as in that case, for he may be the plaintiff, whether his property be COMPLAINTS. 509 Against Wrongdoer, for Taking Goods. II. That on the day of , 18 , at [here state the j>lace definitely]^ the defendant (gr) wrongfully took (A) said goods and chattels from the possession of this plaintiff, and still unjustly detains the same, (%) to the damage of the plaintiff (j») dollars. general or special, and without stating the facts which raise the special prop- erty. Thus an averment that the plaintiff is entitled to the immediate possession, was held insufficient (Pat- tison «. Adams, 7 HiU, 136 ; Bond n. Mitchell, 3 Barb., 304; Pattison u. Adams, Hill & D. Supp., 420) ; and was mere surplusage if inserted in a declar- ation otherwise sufficient. So was an averment that the goods were his prop- erty by virtue of several attachments duly issued, &c. Vandenhurgh v. Van Valkenburgh, 8 Barb., 317. In an ac- tion for conterdon, brought by a factor who had stored property consigned to liim with a third person, from whose possession it had been taken by the de- fendant, it was held that an averment that the property "belonged to the plaintiff," was supported by proof of his special property in it as a factor. Go- rum V. Carey, 1 Abbotts' Pi:, 285. A consignee is, in law, presumed to be the owner. Fitzhugh ■». Wiman, 9 2f.^ Y. (5 Seld.), 559. (^r) If the defendant is a sheriff, it is not necessary to describe him as such. He is to be rendered liable in an in- dividual, and not in his official charac- ter. Stillman «. Squire, 1 Den., 327. The deputy may be joined. Waterbury V. Westervelt, 9 N. T. (5 8eld.), 598 ; King V. Orser, 4 Duer, 431. If the levy v/as made by the direction of the exe- cution-creditor, he also may be joined, /illen v. Crary, 10 Wend., 349 ; Acker c. Campbell, 28 Id.. 872; Marsh v. Backus, 16 Baib., 483. As to the at- torney's liability, see Ford v. Williams, \:',N.T.{ZKern.),5'n. A third person who acquires posses- sion of the goods from the wrongdoer, or jointly with him, — e. g., a partner or agent, or a buyer with notice, — is liable in this action. Olmsted v. Hotailing, I Hill, 317, and cases there cited ; and see Ely v. Ehle, 3 N. Y. (8 Gomst.), 506. And against such, no demand is necessary. Pringle v. Phillips, 5 Sandf., 157. An action to recover possession of personal property will lie for any un- lawful taking or detainer of it, al- though the defendant, before suit, has parted vsdth the possession of it. Brock- way V. Burnap, IQBarb., 309, reversing S. C, 12 Id., 847 ; Savage v. Perkins, II How. Pr., 17 ; Drake v. Wakefield, 11 Id., 106 ; Ward «. Woodburn, 37 Barb., 346 ; Van Neste v. Conover, 20 Id., 547; Nichols v. Michael, 28 N. Y., 364. (h) Alleging that the defendant took the plaintiff's property, sufficiently im- ports a wrongful taking. Childs v. Hart, 1 Barb.,'d1Q. Compare Reynolds V. Lonnsbury, 6 Hill, 534, where it was sq^d that this was a defect, but cured by a verdict. (i) A statement in the complaint that the defendant converted the property toi his own use, is unnecessary, but does not vitiate. Vogel ». Badcock, 1 Ab- loUs'Pi:, 176. (J) In an action against the wrong- doer for a wrongful taking, no demand need be proved. Cummings v. Vorce, 3 Hill, 283 ; Pierce v. Van Dyke, 6 Id., 613 ; Gary v. Hotailing, 1 Id., 311 ; Still- man V. Squire, 1 Ben., 337 ; Zaclirisson V. Ahman, 3 Sandf., 68; Pringle a Phillips, 5 Id., 157. 510 ABBOTTS' FOEMS. Actions to Recover Possession of Personal Property. Wherefore this plaintiflf demands judgment against the de- fendant (/t) for the recovery (/!) of the possession of said goods and chattels, or for the sum of dollars, the value thereof, in case a delivery cannot be had; (m) together with dol- lars, his damages, (n) and for his costs. 614. J^or Goods 'Wrongfully taken from Possession of Plain- t'iff''s Lessee or bailee ; (p) — against the Wrongdoer. I. That at the time hereinafter mentioned the plaintiff was, and still is, the ownev oi [briffiy designate the goods'], of the value of ; which goods were then in the possession ot one M. N., to whom the plaintiff had leased the same for a cer- taii:/ term [or, with whom the plaintiff had deposited the same for storage, or otherwise, according to the fact], {p) II. That on the day of , 18 , at , the defendant wrongfully took said [goods] and chattels from the (k) If there are several defendants, the court may adjudge a return of tlie property in favor of such of the defend- ants as appear to he entitled to a re- turn, and refuse it as to such of them as are not. Woodburn v. Chamberlain, 17 Barb., 440. [1) Code, § 277. Where the plaintiflF is, at the time of judgment, already in possession of the goods, if he succeeds in the suit he merely takes a judgment to confirm his possession, and for his damages and costs. Dwight v. Enos, 9 I^. r. (5 Seld.), 470. (m) The judgment must be in the alternative, and not in any case abso- lutely, for the value of the property. Fitzhugh V. Wiman, 9 W. T. (5 Seld), 5o9 ; Dwight v. Enos, Id., 470. (to) This action is based upon a wrongful detention of the property ; and such wrongful detention must ex- ist at the commencement of the suit. The object of the action is the recovery of the property in specie ; the damages recoverable are merely incident to the action. And if, before suit brought, the defendant unconditionally offers to restore the property, the object is al- ready attained, and the suit is wholly unnecessary. Such an offer is equiva- lent to tender before suit brought, and is a good defence to the action. It is otherwise in an action corresponding with the former action of trover for damages for the detention. Savage v. Perkins, 11 How. Pr., 17. It has been lield tliat the purchaser of a chattel cannot, in the same action, seek delivery of possession of it (as in replevin) and damages for the non-de- livery ; the one being an action for a tort, the other upon contract. Fumiss 11. Brown, 8 Row. Pr., 59 ; Maxwell v. Farnam, 7 Id., 236. ' {o) For averments where the plaintiff claims title under a chattel-mortgage, see Form 558, ante, p. 463. (jp) 2 Greeyil. on Ev., 552, § 561, Decker v. Matthews, 12 N. T. (2 Kern.), 313 ; and see 321. The right to posses- sion must be present and immediate. Redman c. Hendricks, 1 Sandf., 32; Wheeler v. Train, 3 Pick., 355 ; Sharp V. AVhittenhall, 3 Hill, 576. COMPLAINTS. 511 For Goods Wrongfully Taken. For Goods Wrongfully Detained. possession of said M. IST., and still unjustly detains the same, to plaintiff's damage dollars. [III. Tiiat before this action said term expired, and there- upon the plaintiff became entitled to the immediate and exclu- sive possession of said goods.] {q) Demand /or judgment, as in preceding form. 615. J^or Goods Wrongfully taken from Possession of Plain- tiff ^s Assignor ; — against the Wrongdoer. I. That at the time hereinafter mentioned one M. IT. was lawfully possessed of \ljriefly designate the goods'l, the property of said M. JS"., of the value of dollars. II. That on the day of , 18 , at , the defendant wrongfully took said [goods~\ from the possession of said M. ]Sr., and ever since has unjustly detained the same, to the damage of said M. N. dollars. III. That on the day of , 18 , said M. K duly assigned to the plaintiff said [goods'], and his claim to damages for said taking and detention. Demand for judgment, as i?i Form 614. 616. Wrongful Detention of Goods, {r) That on, and ever since, the day of , 18 , the defendant detained from the plaintiff his [title-deeds of land, called , in the count}' of j ; that is to say [describe the deeds']. [Add demand for judgment.] 617. Against One having Derived Possession Innocently. I. As in Form 614 or 615. (q) It seems tliat tlie right of posses- cases there cited. But it is otherwise of sion of a bailee holding a lien, does not an owner who has devested liimself of preclude the owner from maintaining the right ofpossession for a definite term, thisactionagainst a third person wrong- — 6. g., by a lease. Bruce v. Wester- fully taking the goods from the bailee, velt, 3 E. D. Smith, 440. It is only in and that in such case either owner or such cases that this allegation is neces- bailee may bring the action. See Fitz- sary. hugh ■». Wiman, 9 N. T. (5 Seld.), 559 ; (r) This form is from Ohitty's Forms Nefl" V. Thompson, 8 Barh., 313, and ofPr., 96. 512 ABBOTTS' FORMS. Actions to Recover Possession of Personal Property. II. That on the day of , 18 , at , one M. ]^. [or, certain persons to the plaintiff unknown] wrongfully took said goods and chattels from the possession of the plaintili [or otherwise], and unjustly detained the same. III. That thereafter the same came to the possession of the defendant, who refuses to deliver them to the plaintiff, although, before this action, to wit, on the day of ,18 , by the plaintiff duly requested so to do ; (s) but, on the contrary, still unjustly detains them from the plaintiff, to his damage dollars. Demandfor judgment, as m Form 614:. 618. £y Seller, against a Fraudulent Buyer of Goods, if) I., II., and III. as in Form 524, ante, 431. IV. That the defendant having so obtained from the plaintiff the possession of said goods, wrongfully detains them from the plaintiff, to his damsige dollars. Demand for judgment, as in Form 614. 619. Against a Fraudulent Buyer, and his Transferee. . I., II., and III. as in Form 524, ante, 431. IV. That the said [buyer] afterwards transferred said goods to the defendant T. Z., who wrongfully detains them from the plaintiff. V. That on the day of , 18 , at , («) In an action to recover possession erty is proved, proof of a demand is of personal property, where tlie proper- unnecessary. Davison v. Donadi, 2 E. ty whicli is the subject of the action D. Smith, 121; and see Pringle i\ came to the possession of the defendant Phillips, 5 Sand/., 157. by delivery from the wrongdoer, and (t) It is not necessary to state the defendant merely detains it,— it is facts specially, -as in this form. The necessary for plaintiff to allege that plaintiff may declare generally, claim- defendant has refused to deliver it up, ing the property as his, and charging tipon a demand. "This is so where the that the defendants have become pos- defendant holds as assignee, for the sessed of and wrongfully detain the benefit of creditors, from the wrong- same, and give the special facts in evi- doer. Fuller v. Lewis, 3 Aihotts' Pr., dence on the trial to establish the 383. See, also, Gurney v. Kenny, 2 E. fraud. Bliss v. Cottle, 32 Barb., 322 ; D. Smith, 132. But in such case, if an Hunter o. Hudson River Iron & Ma- actual wrongful conversion of the prop- chine Co., 20 Barb., 493. COMPLAINTS. 513 Actions to Recover Possession of Lands. the plaintiff demanded of said Y. Z. that he deliver tlie same to him, but said T. Z. refused so to do, to his damage dollars. Demand for judgment^ as in Form 614. Section XXIII. COMPLAINTS IN ACTIONS TO EECOVER POSSESSION OF KEAL PEOP- EKTY (EJECTMENT), (a) [In an action to recovei- possession of lands, the material facts ■which constitute the cause of action, and necessary to be alleged, are simply the seizin of the plaintiff, and that the defendants are in possession, and with- hold possession from him. Adding that the defendant's possession is unlaw- ful, and the plaintiff's title is lawful, is unnecessary. (Ji) But it must appear on the face of the complaint that the plaintiff is out of possession, and that possession is unlawfully withheld from him. While in possession, he cannot maintain his action against another who claims pos- session or exercises acts of ownership, (c) The plaintiff need not set out the sources of his title ; {d) but if he chooses to set forth his title, he must do so fully ; («) and defendant may take issue on it, and thus confine the proof to the title alleged. (/) "Where defendant is a naked trespasser, a demand of possession, or notice to quit, is unnecessary.] {g) (a) As to the authority of an attorney ouster, — it was not necessary to prove to bring, an action of ejectment, see an actual entry, nor a receipt of profits ; aTtte, 32. but a right of possession at the time of (J) Payne v. Treadwell, 16 Gal., 220. the suit commenced was sulBcient (Sig- An allegation of ownership is a sufS- ler s. Van Eiper, 10 Wend., 414), and it cient allegation of fact. Swan on PI , is now only necessary to allege what 156. ' must be proved. A complaint alleging that the de- (c) A complaint which shows that, fendants were in actual possession, and the plaintiff is in possession, is bad on that the defendants on a certain day demurrer. Taylor v. Crane, 15 How. entered and ousted the plaintiffs, and Pr., 858. See, also, Hulce ii. Thomp- still are in possession, is suflncient. son, 9 Id., 113 ; Budd v. Bingham, 18 Bol&s V. Weifenback, 15 Oal., 144; Barb., 494; Frost v. Duncan, 19 Id., Boles V. Cohen, Id., 150; Godwin d. 560. Stebbins, 2 Id., 103 ; Leigh Co. v. Inde- (d) Leigh Co. «. Independent Ditch pendent Ditch Co., 8 Id., 323. Co., 8 Cal., 323 ; Godwin v. Stebbins, 2 Even under the Revised Statutes, — Id., 103 ; and see Norris ■». Russell, 5 wldch required plaintiff to aver posses- Id., 249 ; Hagley v. West, 3 L. J. Ch.. 3ion on some day subsequent to the 63. accruing of his title, and a subsequent (e) Castro v. Richardson, 18 Cal, 478 Vol. L— 33 514 ABBOTTS' FORMS. Actions to Recover PoBsession of Real Property. 620. General form 514 631. Where tlie plaintiff" was once in possession 515 622. By owner of undivided interest 517 62.8. By widow, for dower 517 624. The same, another form 517 625. By widow and heirs , 518 626. Another form, setting forth plalntiff"'s title by deed 518 627. Setting forth title by devise . . . .' 519 628. Setting forth title by descent 519 620. Oeneral Form. (Ji) I. That the plaintiff is seized in fee [or, for life, * or other estate] of f the following described premises [designating the same; see next form^. II. That the defendant is in possession thereof, and withholds the same from him. Wherefore the plaintiff demands judgment : 1. For the possession of the said premises. 2. For dollars, the plaintiff's damages "bj the withhold- ' ing of the same ; ii) together with his costs. (/) Eagan i>. Delaney, 16 Cal., 85. Or he might move to strike out the allegatioua, according to the case of CoryeU ». Cain, Id., 567. ( 18 , and wliile the plaintiff has been excluded therefrom by defendant, is dollars, (p) Demand of possession, damages, and rents. (I) 3 Bev. Stat., 304, § 8. This pro- vision applies to actions under tlie Code. Budd ii. Bingham, 18 Barb., 494. Where tlie premises were de- scribed aa "about fifty acres, &c.," — Held, that the description was suffi- cient ; but, if necessary, the word "about" might be struck out by way of amendment. St. John o. Northrup, 23 Barb., 25. Where the complaint gave a description which embraced nothing whatever, it was held that the . complaint was bad, and the defendant might have demurred, or have the com- plaint dismissed on the trial ; and that it was not a ease for a motion to make more definite and certain, nor for allow- ing the plaintiff to proceed on the trial with a, view of taking a verdict and afterwards amending. Budd «. Bing- ham, 18 Ba/rb., 494. As to variance between the allega- tions and the proof respecting the premises, see Kellogg ». Kellogg, 6 Bafb., 116 ; Wood «. Staniels, 3 Gode R., 152. A complaint in ejectment may be for separate parcels of laud, if both causes of action affect aU the parties, and do not require separate places of trial ; but they must be separately stated. Boles ■». Cohen, 15 Gal, 150. (m) The time of the ouster may be stated thus— [on or about] ; for it is not material, especially if no claim is made for damages. Collier v. Corbett, 15 Gal, 183. (k) a wrongful ouster must be di- rectly alleged. Watson v. Zimmer- man, 6 Gal., 46. Reciting it is not enough. (o) Under subdivision 5 of section 167 of the Code, a demand for mesne profits may be made in the action for the recovery of the possession, or a subsequent action may be brought for them (Holmes v. Davis, 21 Barb., 265) ; but in order to be recovered in the action for possession, they must be specially stated as a part of the relief demanded. A demand of damages for the ouster does not cover them. Liv- ingston «. Tanner, 12 Barb., 481. But a claim for injuries to the freehold cannot be joined. Frost «. Puncan, 19 Barb., 560. A claim to recover from the defend- ant the possession of a farm-house and yard, which he had occupied by plain- ■ tiff's permission, and a claim for dam ages for trespass upon the farm, can- not properly be joined in one com plaint. Hulce «. Thompson, 9 How Pr., 118. (p) This allegation is sufficient. Pat- terson V. Ely, 19 Gal., 28. The claim for rents and profits which the plaintiff may set up in an action for lands (Gode of Pro., § 167), does not contemplate the specific amounts re- COMPLAINTa 517 By Widow, for Dower. 622. By Owner of Undivided Interest, {q) As in either preceding form, inserting at the f, one undivided \ialf [or, third, or other] interest in. 623. £y Widow, for Dower, {r) As in either preceding form, svhstituting, at the *, as her reasonable dower as the widow of her husband, the late 0. B., of the one undivided third part of the following described premises. 624. The Same, Another Form. ' I. That the late A. B. was the husband of the plaintiff at, and for many years next previous to, his death ; that he died many years since ; and that at the time thereof of his death, and for many years previous thereto, he was seized in fee-simple and in possession of the following described premises [description as in Form 621]. ,11. 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 prem- ises, and wrongfully and unjustly withholds from plaintiff the possession of her said one-third part thereof as her dower. lY. 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 that she recover ceived by tlie defendant wMle in and numbered in the petition. McKin- wrongfal possession, but simply a re- ney «. McKinney, 8 0. St., 423 ; and covery of damages, as in trespass, or as see Swan on PL, 444. upon a suggestion for mesne profits in (q) This form is prescribed by 3 Rev. ejectment before the Code. People v. Stat., 304, § 9. Mayor, &c., of N. Y., 28 Barb., 240 ; S. In an action for the recovery of land, C, 8 Abbotts' Pr., 7. brought against plaintiff's cotenant, it But the rents and profits must be is sufficient for the plaintiff, at the outset, shown by the complaint to be connect- to show that the defendant's entry into ed with, and arising out of, the wrong- possession was under a claim hostile to ful withholding of possession. Tomp- the rights of the plaintiff, — as, where kins V. White, 8 Mow. Pr., 520. the entry was imder an expired lease. In Ohio, the demand for rents and Clason «. Rankin, 1 Duer, 337. profits is deemed a separate cause of ('/•) This form is prescribed by 2 Effo. actions and should be separately stated Stat., 304, § 10. 518 ABBOTTS' FORMS. Actions to Recover Possession of Real Property. possession of one undivided third part of said premises for her own life, against said defendant Y. Z , and that she is entitled to one undivided third part-thereof for her own life against all the other defendants, and that she recover her costs of this action. 625. By Widow and Heirs, (s) I. That one M. N. was, on and before the day of , 18 , seized in fee and in the lawful possession of the following premises [describing them., as in Form 621]. II. That being so seized and possessed, he died, on the day^of , 18 , intestate, leaving C. B., one of the plain- tiffs, his widow, and the other plaintiffs, his only heirs at law, him surviving. III. That the plaintiffs [heirs'] were, and are, seized in fee and entitled to the possession, subject to the life-estate of the plaintiff [widow] in an undivided third part thereof. lY. That the defendants are wi-ongfully in possession, and claim a right thereto ; and [although on the day of , 18 , they were duly requested] they refuse to give up the pos- session, and unjustly withhold the same from the plaintiffs. Demand of relief. 626. Another Foi'm, Setting Forth Plaintiff ''s Title by Deed. I. That on the day of , 18 , one M. N. was lawfully seized, as owner in fee-simple [or othenvise], and in possession of the following described premises [description as in Form 621]. II. That being so possessed thereof, on the day of ,18 , by his deed, bearing date on that day, he duly conveyed {t) the same [or state the estate conveyed] to the plain- tiff. III. That on the day of ,18 , the defendant entered into said premises, and that he unlawfully withholds from the plaintiff the possession thereof, to his damage dollars. ^ L («) This form is supported by Gamer ports that the lands were of such de- I). Manhattan Building Association, 6 scription as the statutes authorize them Jkter, 539. to lease. People u. Mayor, &c., of N. If) An allegation that certain ofScers Y., 28 Bwrb., 240 ; S. C, 8 Abbotts' duly leased certain public lands, im- Pr., 7. COMPLAINTS. 519 Action to Recover Lands : — Upon Devise ; — Inheritance. 627. Setting Forth Title hj Devise. I. \^As in preceding form.~\ II. That on the day of , 18 , the said M. N. died, having by his last will devised to the plaintiff the said premises, (w) which will has been duly proved as a will of real estate in the office of the surrogate of the county of III. \_Continue as aiove.] 628. Setting Forth Title ly Descent. I. That one M. N., late of , deceased, was, at and before his death, seized in fee-simple of \here describe the prem- ises'], and was at the time of his death in the possession of said premises. II. That on the day of , 18 , at , said M. N. died intestate, leaving surviving, him these plaintiffs, his only children and heirs at law. {v) III. That on or about the day of , 18 , the defendant unlawfully entered into, and now is in possession and actual occupancy of, said premises, without leave of the plain- tiff, or any right or title thereto, and unlawfully withholds pos- session theveof from the plaintiffs, to their damage dollars. \_Demand of relief.'] (u) This form of alleging a devise is only allegation in tliis respect was, sustained by Spier ». Robinson, 9 Mow. " that upon the death of W. J., the title Pr., 335. of the premises in question descended An averment that the defendant's to F., as sale heir at law, subject, (&c.," ancestor was in his lifetime seized in it was Seld (the defendant having an- fee, and in possession of, &c.. sufficient- swered on the merits), that the fact ]y avers the fact of title in him, and a that F. was tlie sole heir at law of W. proof of grants to him is admissible J. was sufficiently alleged to admit nnder it. People v. Livingston, 8 proof of that fact. St. John r. Northrup, £arb., 253, 276. 33 Bm-h., 25. Even if the ancestor left (v) The complaint should state that a will, it need not be set out if it did the plaintiff is the heir; but where the not dispose of the premises. lb. J 520 ABBOTTS' FORMS. Actions Given by Statute. Section XXIV. COMPLAINTS IN ACTIONS GIVEN Bi' STATUTE. [In actions founded upon a public statute, it was formerly usual to set forth the statute, or at least to refer to it specifically; and this was held to be necessary where the statute provided a new form of action, (a) The plain- tiff could not recover upon the common counts, such as for money received, unless the statute specially authorized such pleading; but he must set forth the facts showing a case within the statute, (b) and must aver that the de- fendant's act was against the form of the statute, (c) Under the Code of Procedure, it is sulfioient to set forth the facts which bring the case within the statute, without making any express reference to the statute, (d) For the court takes judicial notice of the law. In many cases, however, where an action would lie, as well at common law as under the statute, and for a different measure of relief, or where the stat- ute gives a brief form of pleading, it will be desirable to refer to the statute, in order to avoid ambiguity, (e) The rule dispensing with setting forth the statute applies to public statutes of the State where the action is brought, and to those of the United States ; (/) and also to cases which are to be governed by the principle of a statute of the mother country, which became a part of the colonial common law. (g) The laws of other States, like foreign laws, must be specially alleged ; (h) a general averment as to their effect is insufficient ; (i) and the same rule applies to municipal ordinances or by-laws, (j) in pleading a private statute, or a right derjved therefrom, it is sufficient to refer to such statute by its title and the day of its passage. (7;;) In pleading a'statute which is of such a nature that more than a majority (fl) Carris v. Ingalls, 13 Wend., 70; istobedeemedequivalent to "referring Bayard v. Smith, 17 Id., 88. to." Cityof Utica v. Eichardson, 6 Sill, (6) Cole B.Smith, 4 /o7ms., 193; Bige- 300. low 1). Johnson, 13 Id., 428 ; and see (/) Jack i>. Martin, 12 Wend., 311, People D. Brooks, 4 Ben., 469. 329 ; 14 Id., 507. (c) Lee v. Clarke, 2 Saat, 333. {g) Bogardus i>. Trinity Church, 4 id) Goelet v. Cowdrey, 1 Buer, 132 ; Paige, 178. Yertore v. Wiswall, 16 How. Pr., 8 ; (Ji) Thatcher v. Morris, 11 i^. Y. (1 Brown «. Harmon, 31 Sarb., 508. Kern.), 437 ; Monroe v. Douglass, 5 if. This was the rule applied in answers Y. (1 8eld.), 447. and pleas in equity. Bogardus v. (i) Throop u. Hatch, 3 Abbotts' Pr., Trinity Church, 4 Paige, 178 ; Van 23 ; Phinuey «. Phinney, 17 Soio. Pr., Hook V. W^hitlock, 7 Id., 373. 197. (e) See ante, 427, note (b); and 471, The objection to a general averment note (n). ought not to be available on demurrer, Under a statute, providing that in an but only by motion, action for a penalty under its sections (j) Barker i). Mayor, &c., of N. Y., 1 7 it should be lawful to declare generally Wend., 199; People v. Mayor, &o., oi in debt, &c., stating the section of the N. Y., 7 How. Pr., 81. act, or the by-law sued on, "stating" (k) Code of Pro., g 163. COMPLAINTS. 521 Aoalysis of Section. of the Legislature is required to pass it, it is enough to allege that it was passed, without averring tliat such a vote was had. {I) In stating the facts of a case under a statute, care must he taken to make a case clearly within the statute ; (in) and this may generally be best done by pursuing the words of the statute, adding such particulars of time, place, and value as may be necessary to give definiteness and certainty to the claim; (n) although, where the plaintiff is a stranger to the transactions, aud defendant may be presumed cognizant of them, generality of statement is permitted (o) It is not necessary to aver a scienter in the violation, unless the statute gives the action only for a knowing violation, (p) A distinct provisn, whether in the same section or another, furnishing mere matter of excuse for the defendant, need not be negatived ; but, gen- erally, an exception incorporated in the very clause should be negatived, (q) The true test, under the Code, is this : if the burden of proof is on the plain- tiflf, the matter should be alleged. If it is matter of defence, to be established by the defendant in order to make the exception or proviso avail him, the plaintiff need not notice it. Numerous violations of a single provision, — e. g.^ a single subdivision of the section of the statute, — may be alleged in one count, {r) But there should he a separate count for violations of a distinct subdivision, (s)] I. Mechanics' lien. 629. By contractor, for building materials p. 522 . 630. By sub-contractor, against owner and contractor, for labor . . . 524 631. Allegation of fraudulent lien 525 n. IXDrVIDUAL LIABILITT OF COKPOKATOHS. 632. Against stockholder ' 526 633. Against trustees, for neglect to file report 529 634. Against the trustees of a dissolved corporation .' 530 635. Averment of indebtedness beyond capital 531 636. Averment where debt is a judgment for costs 531 (Z) Wolfe V. Supervisors of Rich- First Baptist Church ii. Utica & Sche- mond, 11 Alhotts' Pr., 270 ; S. C, 19 nectady K. B. Co., 6 Id., 313. How. Pr., 370. {r) Longworthy v. Knapp, 4 Abbotts' {m) The objection that It appeared Pr., 115 ; People v. McFadden, 13 by the bill that the complainant had Wend., 396 ; Qaffney v. Colvill, 6 Hill, not complied with the directions of the 567. statute, might in chancery he raised at («) Gaffney v. Colvill, 6 Hill, 567. any stage of the cause. Manning v. Where there are separate statutes, Merritt, Clarke, 98. giving a different measure of damages («) See Thomas v. People, 19 Wend., for the same wrongs, it has been held 480. that the plaintiff must elect (Sipperly (q) Gafifney v. ColviU, 6 Hill, 567. ■». Troy & Boston R. R. Co., 9 How. Pr., (p) Bayard «. Smith, 17 Wetid., 88 ; 83) ; but it seems more consonant with Gaffney «. Colvill, 6 Hill, 567. the present practice, to regard tiie {q) Bennet «. Hurd, 3 Johns., 438 ; wrong, and not the statute, as the Teel V. Fonda, 4 Id., 304 ; Hart v. Cleis, cause of action, and allow the plaintifl 8 /a , 41 ; Sheldon ». Clark, 1 Id., 513 ; to state the facts, and recover under Burr V. Van Buskirk, 3 Cow., 263 ; Fos- either statute according to the proof at ter V. Hazen, 12 Barb., 547 ; aud see the trial. 522 ABBOTTS' FORMS. Actions Given by Statute. ^ 637. Against director of insurance company, on the ground of un- lawful dividends and transfers of assets p. 532 III. By creditob of deceased rEHBosr. 638. Against next of kin 533 639. Against legatee 533 640. Against heir 534 641. Against devisees 536 642. Against heir or devisee, where he has aliened the land 536 rv". By pbbsonaI/ ebpkesentative of deceased person, foe ■wkong OR NEGLIGENCE CAtTSrNQ DEATH. 643. Against railroad company 536 644. Against owner of warehouse, the walls of which fell 538 V. For PENALTIES. 645. General form 539 646. For selling liquors without a license ; alleging both sales in small quantity, and sales to drink on the premises 540 647. Folr selling liquors on Sunday or election day 541 648. By wife or husband against dealer in intoxicating liquors, for illegally selling to plaintiff's husband or wife 541 049. Against a witness, for disobeying subpoena 542 650. For violation of ordinance of Board of Supervisors 543 I. Mechanics' Ltkn. (t) 629. Uy Contractor, for Building Materials. The complaint of the plaintiff, filed pursuant to an order of this court, (m) made on the day of , 18 , shows ; I. That on the day of , 18 , at , this plain- tiff, by virtue of a contract with the defendant, sold and de- livered to the defendant certain building materials consisting of , of the value of dollars ; the quantitj' 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 , 18 , but the defendant has not paid the same, {v) (t) These forms are drawn with refer- {u) The jjleadings in these causes are euce to the Mechanics' Lien Law appli- filed pursuant to order of court. The cable to the city and county of New statute provides only for the joining of York ; but will be found useful prece- issues ; which, for convenience, is done, dents in cases under any of the lieu by order of court, through the instru- acts. mentality of written pleadings. The complaint in these cases is sub- (v) It is not enough to recite the no- ject to the rules governing pleadings tice of lien by way of showing the facts in other actions. Du% v. McManus, 3 relied on. The complaint must aver S. D. Smith, 657 ; S. C, 4 Abbotts' Pr.. independently the facts constituting the 432. grounds of the alleged claim, and show- COMPLAINTS. 523 By Contractor ; — ^to Foreclose Mechanics' Lien. 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 making said coutract of sale, and until the tiling the notice of lien hereinafter mentioned, the property of the defendant. Y. That on the day of , 18 , and after per- formance of said contract, {x) 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 in- debtedness aforesaid ; which 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, (y) Wherefore the plaintiff prays judgment, directing a sale of the interest of the defendant, in the premises, building, and ;)!' purtenances above described, to the extent of tlie right of de- fendant on the day of , 18 , [date of film g the notice oflien\ 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 tht residue of snch proceeds, if any, be paid to the clerk of tlie city and county of New York, to abide the farther order of the court] ; and that if the proceeds of such sale shall not be sufE- ing the plaintiff's right to the remedy, repealed hy the act of 1851. Jaques,«. Duffy ». McManus, 3 E. D. Smith, 057; Morris, 2 B. B. Bmith, 639. Hence, a S. C, 4 Abhotts' Pr., 433. complaint which only avers perform- {w) The complaint is demurrable, vm- ance " before the commencement of this less it describes the premises sufficient- action," is defective. lb. ly to enable the sheriff to determine (y) The contents of the notice should beyond a doubt the premises to be sold ; be stated, so as to show that a lien was and the street-number of the premises created ; this being essential to the should be shown, or the plaintiff's ig- cause of action. norance of it averred. Duffy v. Mc- The complaint must show that the Manus, 3 E. J). Smith, 657 ; S. C, 4 complainant has taken the requisite Aibott8' Pr., 433. steps to create a lien. An ordinary com- (x) The complaint must aver per- plaint for work and labor merely, may tbrmance of the cont^^act before the be set aside on motion. So held, in a filing the notice of lien. So much of proceeding by the original contractor the act of 1844 as allowed a contractor Foster ■». Poillon, 3 E. D. Smith, 556 , to acquire a lien before performance, is Cronkright v. Thomson, 1 Id., 661. 52i ABBOTTS' FORMS. Actions Given by Statute. cient to discharge the costs and claim aforesaid, this plaintiff have leave to docket a transcript of judgment against the de- fendant for such sum as may remain due. 630. By Suh-Gontractor, against Owner and Contractor, for Labor. 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. [contra.ctor'] entered into a contract with the defendant Y. Z. [ownei'] for tlie erection of a building and appurtenances upon the premises hereinafter described ; by the terms of which con- tract 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 such indebt- edness, specifying its amount.'] (s) III. That between the day of , 18 , and the day of , 18 , the plaintiff, in pursuance of an agreement theretofore entered into by him witli the defendant W. X. [contractor], and in conformity with the terms of the contract above mentioned, performed [state Icind of labor per- formed], 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 plain- tiff and the defendant "W. X. [contractor], said sum became due on the day of j 18 , but he has not paid the same. V. That said labor was performed in erecting a building and appurtenances upon the following described premises: [describe premises]. (z) Wtere the proceeding is by a sub- If it does not show this, it sliows no contractor, his complaint must aver right of action. Quinn «. Mayor, &c., that the labor or materials vyere fur- of N. Y., 2 B. D. Smith, 558. See, also, nislied in conformity vpith the contract Cunningham ». Jones, 4 Abbotts' Pr., between the owner and the original 433 ; Doughty «. Devlin, 1 S. D. Smith, contractor. If it fails to show this, it G25 ; Kennedy «. Paine, Id., 651 ; Cronk maybe required to be amended. Brod- «. Whittaker, Id., 647; Hauptman t) crick 11. PoUlon, 2 E. D. Smith. 554 Halsey, Id. 668. COMPLAINTS. 625 By Sub-contractor ; — to Foreclose Mechanics' Lien. VI. That the said premises were, at the time when said labor was performed, and until tlie filing the notice of lien hereinafter men-tioned, the property of the defendant Y. Z. [owner\. VI. That on the day of , 18 , the plaintifi 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 plaintifT prays judgment directing a sale of the interest of the defendant Y. Z. [owner] in the premises, building, and appurtenances above described, to the extent of the right of said defendant on the day of , 18 , [date of filing the notice of lien], and directing that the pro- ceeds 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. [co?itractor] (a) for the sum of dollars [the amount of the plaintiff'' s claim], with interest from the day of 5 18 , together with the costs of these proceedings. 631. Allegation of Fraudulent Lien, (p) I. That on the day of , 18 , the defendant Y. Z., conspiring with the other defendants before named to de- fraud the plaintiff, filed a notice of lien against said W. as owner, and said X. as the person against whom said claim is made, ifpon the said building and premises, and for tiie sum of doUai's. II. That neither the said sum, nor any sum whatsoever, was or at anv time will be owing to said Y. Z., as in said notice of. (a) A-uthorized by Zaws 0/ 1855, cli. (6) Tliis form is from Nott'sN. 7 404, § 5 ; applicable to the city and Lien L., 256. county of New York. 526 ABBOTTS' FORMS. Actions Given by Statute. lien pretended; and that said Y. Z. has been fully paid for all labor he has done or caused to be done upon said building and appurtenances, and he has no legal or just claim against the de- fendant X., or any other person for any labor done or materials furnished in or about the same; and that said lien, if allowed to stand, would wholly defeat the claim and lien of the plaintiff. Insert^ in demand of relief : and that the lien Hied by said Y. Z., on the day of ,18 , be adjudged fraudulent and void, and be set aside ; and that said Y. Ji. pay the costs of this action. II. Individual LiABiLrrv of Coepoeatoes. (g) 632. Against Stockholder, {d) I. That at the times hereinafter mentioned, the Com pany was a corporation created by and under the law.s of this State, organized pursuant to [Jiere designate charter, — e. g., thus, — J an act entitled '' An Act to authorize the formation of Corporations for Manufacturing, Mining, Mechanical, and Chemical purposes," passed February 17, 1848, and the acts amending the same, (e) II. That on the day of j 18 , and before the (c) An action to enforce the personal peyster, 1 Bclw., 513; Franklin Fire liability of a corporator, thougb com- Ins. Co. v. Jenkins, 3 Wend., 180 ; Gaff- monly spoken of as founded upon a ney ■o. Colvill, 6 Hill, 567 ; Cazeaux ». statutory liability, is, in many cases at Mali, 25 Ba.rh., 578. least, to be considered as founded on For complaints in actions to dissolve that vestige of the relation of partner- corporations, or to restrain them for in- ship between the members of the com- solvency, see Section XXXII., infra. pany which the charter or general act As to whether the summnns shovild failed to remove. Coming ii. McCul- be for relief, or for a money demand on lough, t N. T. (1 Comst.), 47 ; Conant contract, compare Peckham v. Smith, V. Van Schaick, 24 Barb., 87 ; Simon- 9 Mow. Pr., 436 ; and Simonson «. son «. Spencer, 15 Wend., 548 ; Bailey Spencer, 15 Wend., 548 ; BuUard i). ■V. Bancker. 3 Sill, 188. Bell, 1 Mas., 243 ; People v. Bennett, 5 As to the personal liability of the Abbotts' Pr., 384 ; Durant v. Gardner, trustees to the corporation or a stock- 10 Id., 445. holder for an abuse of their trust, and (d) This form is supported by Herki- the requisites of pleading in such cases, mer County Bank v. Furman, 17 Barb., see Robinson v. Smith, 3 Paige, 232 ; 116 ; Witherhead v. AUen, 2SId., 661. Cunningham v. Pell, 5 Id., 607 ; Austin («) See Averments of Incorporation V. Daniels, 4 Den., 299 ; Scott v. De- suited to other cases, ante, pp. 188-189. COMPLAINTS. 527 Against Stockholders of Corporations. whole amonnt of capital stock fixed and limited hy said com- pany had been paid in [or, before a certificate, &c., had been made and recorded as prescribed by law], (_/) said company, by their agent duly authorized thereto, made their promissory note in writing, dated on that day, and thereby promised to pay to the plaintiff, or order, dollars months after said date, for value received ; (g) and delivered it to plantifi', which remains unpaid [or state other cause of action on a debt incurred hy the company before full payment of stock, or upon a contract made before full payment of atoch, and show that^ it was to be paid within tJie year'] (Ji) III. That on the day of ,18 , in an action in the Court for the county of [or, before M. N., a justice of the peace in and for the town of J, brought by this plaintiff within one year after said debt became due, to re- cover the same from said company, this plaintiff recovered judgment, duly given by said court [or, justice] against said (/) There are many other grounds of personal liability of stockholders, varying according to various acts and charters. The above form will serve to indicate the proper frame of the complaint in different cases that may arise. ((/) In an action to charge stock- holders of a corporation with personal liability for a note made by the corpo- ration, if the complaint refers to a charter which shows a corporation competent to make notes, — e. g., a trad- ing company, — it is unnecessary for the plaintiff to aver the facts showing for what the nots was given. If it was not within their pov,-er, this must be plead- ed as defence. Gebhard v. Eastman, 7 Minn., 56. {h) The cause of action may be stated in the same way as it would be in a complaint against the corporation ; though less particularity will be al- lowable. Thus it was held before the Code, that in an action of debt against a stockholder to recover on his statute liability for the indebtedness of the corporation, a general indebitatus count was sufficient, alleging that the com- pany was indebted, &c., for, &c., and payment had been refused, although the debt of the company arose under a special contract. Simonson ». Spencer, ISTFent?., 548. The plaintiff must prove not only a judgment and execution unsatisfied, but also that the judgment was upon a debt for which the corporators were in- dividually liable. Conant«.Van Schaick, 34 Barb., 87. Liability for " debts" does hot include a claim for damages for negligence. Heacock v. Sherman, 14 Wend., 58. In an action founded upon section 10 of the general railroad act {Laics of 1850, 315), which makes stockholders liable for debts due from such corporar tions to their laborers or servants, the complaint must expressly aver that the plaintiff or his assignor was a laborer or a servant of the company, and that the claim accrued to him in that ca- pacity. A mere averment that he did work and labor for it, is insuffi- cient. Bout well D. Townsend, 87 Biwh 305. 528 ABBOTTS' FORMS. Actions Given by Statute. company, for dollars, being dollars, the amount due thereon with interest, besides dollars costs, (i) IV. That execution thereon was thereafter duly issued against said company, and returned wholly unsatisfied [or, unsatisfied except as to, &c.] (J) V. That at the time said debt was contracted [or, said con- tract was made], the defendant {K) was a stockholder (I) [or, on the day of , 18 , and before the whole amount of capital stock fixed and limited by said company had been paid in, or, before a certificate, c&o., as above, the defendant became a stockholder] of said company, holding stock therein to the amount of dollars, (■?») being shares of the par value of dollars each ; and tliat he still is such stockholder tlierein [or, and that he continued to be such stockholder until within two years before this action]. (i) As to wlietlier the stockliolder is lia-ble for the costs of the judgment against tlie company, compare Bailey r.. Bancker, 3 Hill, 188 ; Andrews «. Murray, 9 AhhotW Pr., 8. {§) It is not necessary to aver that tlie corporation was insolvent, except in those cases in which the charter places the" liability subject to the exist- ence of such insolvency, or requires the creditor to exhaust his remedy against the corporation before proceed- ing against the stockholders ; in other cases, when a debt is not paid at ma^ turity, the creditor m'ay proceed to col- lect his claim either from the corpora- tion, or those who by their charter are made responsible for the debts without any limitation. Perkins v. Church, 31 Barb., 84. If it appears from the complaint filed by a creditor of a manufacturing corporation in the comity of Herkimer, against a stockholder, to enforce the individual liability of the latter, that the company was dissolved under the act of April 16, 1852, that fact wiU be fatal to the action. But if the com- plaint merely alleges the dissolution of the corporation, without showing that it was dissolved under that act, the court will not, on demurrer, assume that it was. Herkimer County Bank V. Furman, 17 Barb., 116. (A) As to when the corporation should be joined as a party, see Bogardus v. Eosendale Manufacturing Co., 7 If. T. (3 Seld.), 147; Masters ». Rossie Lead Mining' Co., 2- Bandf. Ch., 301. The omission to join it is not ground of demurrer. Perkins v. Church, 31 Barb., 84. (Z) The complaint must show that the defendants were such stockholders at the time the debt was contracted. Toung D. N. Y. & Liverpool Steamship Co., \^ Abbotts' Pr., 69 ; affirming S. C, 10 Id., 239 ; and see Tracy o. Yates, 18 Barb., 153. An averment in the words of the charter creating such liability, that jle- fendaut was a stocliholder at the time of the original contracting of the debt, is sufficient. Freelana «. McCuUough, '1 Den., 414. (to) In pleading the liability of a stockholder under the Laws of 1848, ch. 40, § 10, — which provides that stock- holders, in manufacturing corporations allowed to be formed by that act, shall COMPLAINTS. 529 Against Officers of Corporation. 633. Against Trustees, for Neglect to File Report. I. That at the time hereinafter mentioned, the defendants were trustees (w) of the Company. II. That at the times hereinafter mentioned, said company were a corporation organized pursuan-t to an act of the Legisla- ture of this State, entitled, " An Act to authorize the forma- tion of Corporations for Manufacturing, Mining, Mechanical, or Chemical purposes," passed February 17, 1848," and tlie acts amending the same. III. That on the day of , 18 , and before the time for filing the annual report hereinafter mentioned [o?', after tiie time for filing the annual report hereinafter mentioned, and before it was tiled], (o) said company became indebted to the plaintiflTin the sum of dollars upon an account for work, labor, and services rendered by tlie plaintiff and his ser- vants to said company at their request, and for money paid by him to the use of said company at their request, in advertising in various newspapers in the United States and Canada, the goods manufactured and offered for sale by the said corpora- tion \or state other in.debtedness'\, and althougli the same became due and payable on said day [or, on the day of ,18 j, no part thereof has been paid. lY. That the said company did not, witliin twenty days from the first day of January, 18 , make and publish [nor have they at any time whatever since their organization made and published] a report as required by law in such case made and provided, verified by tlie oath of the president or secretary thereof, and file the same in the office of the clerk of the county where it is required by law to be filed ; nor did they be liable, in case the capital is not paid Andrews «. Murray, 9 AbbotW Pr., 8 ■ in, for debts of the company, in an Gwynne i\ Kettel, not reported, amount equal to the amount of stock (o) In pleading the liability of a li'us- held, — it must be averred that such tee under section 12 of the act, it must stockholder held an amount of stock be averred that the debt was existing equal to the amount for which he is at the time of the failure to publisli the Bought to be held liable. Chambers d. annual certificate, or that' it was con- Lewis, 16 Abbotts' Pr., 433. tracted afterwards, before such report (n) It is better to allege this explicit was published. Chambers v. Lewis, 10 ly ; though it is sutEcient if the fact can Ahbotts' Pr., 433. be gathered from other allegations. Vol. I.— 31 S30 ABBOTTS' FORMS. Actions Given by Statute. make, publish, sign, cause to be verified, and file, any such report whatsoever, until after the [designating time when it is alleged that the debt was contracted], [nor have tliey either made, published, signed, verified, or caused to be verified, or tiled any such report, as by law required ; but wholly failed to do so.] 634. Against the Trustees of a Dissolved Corporation, {p) The plaintiff complains, on behalf of himself and all other creditors of the Company who may come in and contrib- ute to the expenses of this action, and alleges : I. That the Company was duly incorporated on the day of , 18 , under the " Act relative to Incorpo rations for Manufacturing "purposes," passed March 23, 1811, and the acts amending the same ; and thereafter carried on busi- ness at the town [or, city] of , in county. II. [State a cause of action against the company.'] III. That on the day of ? 18 , the trustees of the said company passed a resolution, of which a copy is hereto annexed, pursuant to an act entitled " An Act to facilitate the Dissolution of Manufacturing Corporations in the County of Herkimer, and to secure the Payment of tlieir Debts without preference," passed April 16, 1852 [or, allege other acts am,ount- (p) This is the form recommended demands of the different creditors ao bythe Commissioiiers of the Code, No. crued. The time when the different 155. stoclclioiders acquired their stock, and Where one who is a stocliholder in the time when the demands of the a corporation, the stockholders in which creditors who are made defendants ao- have become personally liable for the crued, should be stated, or sufficient to corporatedebts, and who is also a judg- show that all the defendants who are ment-creditor of the corporation to an stockholders are liable to contribute to amount exceeding- his liability as stock- the payment of the demands of some of holder, brings an action against the the creditors, and that some of the corporation, its other stockholders, and stockholders are liable to contribute to its other creditors, to ascertain the all the demands of all the creditors, rights and liabilities of the parties, and It must also show the grounds on to set off his liability against his judg- which the stockholders are individually ment, and to restrain other litigation liable for the corporate debts. Anallega- among the parties, and payments by tion that the judgment-creditors claim the stockholders on their individual lia- that the stock was not all paid in, &c., bUity meanwhile, his complaint should is not sufBcient. Geery v. N. Y. & show that the plaintiffs were stock- Liverpool Steamship Co., 12 Abbotts holders duriilg all the time when the Pr., 268. COMPLAINTS. 531 Against Officers of Corporation. ing to a dissolution which vests the assets in the officers as t7'ustees]. IV. That the defendants were the trustees of the said com- pany at the time of passing the said resohition. Y. That the defendants have received a large amount of money and other property belonging to the said company, but have refused to pay the claim of the plaintiflF. Wherefore, the plaintiff demands judgment : 1. That the defendants account, under the direction of the court, for the property received by them as aforesaid ; 2. For the payment to him of dollars, with interest from the day of , 18 [and costs], out of the funds in possession of the defendants, or which they may collect; 3. That the defendants proceed, without delay, to discharge the trusts devolved upon them in the premises. 635. Averment of Indebtedness heyond Capital. That the said company has become indebted to various per- sons to an amount exceeding the amount of the capital stock of said company, by dollars, (§■) with the consent of said plaintiff, as a trustee of said company. 636. Averment where Debt is a Judgment for Costs, {r) That at the city of New York, on or about the day of , 18 , the said company, by a resolution of its trustees, of whom the defendant was one. instituted an action in the Court of , against the plaintiff; and thereupon such proceedings were had, that the said court, on the day of , in the year 18 , dismissed said complaint, with costs ; and that said costs were afterwards, on the day of , 18 , duly adjusted and taxed, at the sum of dollars, and judgment was then entered therefor in the office of the clerk of county ; which judgment remains unpaid. (ly) It must be averred that the excess Chambers v. Lewis, 16 Ab'botts' Pr., of debt over the capital was equal to, 433. or exceeded the amount for which de- (r) Tliis form is supported by Aa. fendant is sought to be held liable, drews v. Murray, 9 Abbotts' Pr., 8. 532 ABBOTTS' FORMS. Actions Given ty Statute. 637. Against Director of Insurance Company, on the Ground of Unlawful Dividends and Transfers of Assets, {s) I. That from the day of , 18 , to the day of , 18 , the International Insurance Company was a corporation existing by virtue of the laws of the State .of New York, and authorized by law to make insurances. II. That during the said time the said corporation made in- surances for plaintiff, in the sum of $6,000, on two vessels, viz., $4,000 on a vessel named the '^Driver" and $3,000 on a vessel named the "^acer/" that on said vessels respectively there were total losses, and the said corporatipn on said in- surance became liable, and now is liable to pay to tlie plaintiff the said suras of $4,000 and $2,000, no part, of which has ever been paid ; and the plaintiff, at the time of the acts hereinafter mentioned, was and still is a creditor of said company, and the defendant then was a trustee of said company. III. That at a meeting of the board of trustees of said cor- poration, at which defendant was present, during tlie time aforesaid, the defendant, with the other trustees, made dividends to the stockholders of the said corporation, which dividends were not made from the surplus profits arising from the busi- ness of said corporation, IV. That at a meeting of the board of trustees of said cor- poration, at which the defendant was present, and when the said corporation was insolvent and in contemplation of insolven- cy, the defendant, with the other trustees, made conveyances, assignments, and transfers of the assets and property of said corporation, with the intent of giving a preference to particular creditors of said corporation over other creditors of said com- pany, {t) («) TMs form is from Ogden d. Hollo two different statutes severally autli ir- (13 Abbotts' Pr., 300 ; reversing S. C, ize an action upon a certain state of 9 Id., 8, note), modified to obviate tlie facts, the arising of such state of facts objections there made. constitutes but one cause of action ; and {t) The complaint is not to be deemed a plaintiflF must elect which statute he as uniting several causes of action be- will proceed under ; and cannot corn- Cause it sets forth several grounds, on plain upon the same facts in two either of which the defendants would counts, one under each statute. Sip- be liable. Durant t. Gardner, 10 Ab- perly i). Troy & Boston R. R. Co.. 9 iotta' Pr., 445 ; S. C, 19 How. Pr., 94. How. Pr., Ss'. It has, however, been held that when COMPLAINTS. 533 Against Next of Kin or Legatees. V. That the plaintiff is, and was, at the time of the aforesaid acts, a creditor of said corporatioD for the sum of $6,000, as aforesaid. That in consequence of the wrongful acts and viola- tions of law of the defendant, with the other directors of said corporation hereinbefore mentioned, the said corporation, prior to said day of , and while the plaintiff was such creditor, became, and now is, wholly insolvent ; (m) that he has sustained loss by reason thereof in the sum of dollars. III. By Ckkditoe of Deceased Person. 638. Against Next of Kin. {v) I. \_State facts showing a debt of the decedent, due and still un-paidJ] II. Tiiat on the day of , 18 , at , said {dscedentl died intestate ; and that on the day of , 18 , letters of administration upon the estate of said [_decedent'] were granted to one M. N., by an order duly made by the sur- rogate of the county of , of this State, appointing said M. N. administrator of all the goods, chattels, and credits which were of said deceased [or, allege death, leaving a will, dec., as in next form]. III. That before the commencement of this action said ad- ministrator \or, executor] paid over assets of the estate to the defendant, who is one of the next of kin \or, to the defendants, who are the next of kin] of the deceased, amounting to the sura of dollars. 639. Against Legatee, {w) I. [State facts showing a debt of the decedent, due and still zinpaid.] ■ II. That on the day of , 18 , at , said {decedenf] died, leaving a last will and testament duly made, by («) It should appear that the plain- den v. EoUo, 13 Abbotts' Pr. 300 ; re- tiflf was a creditor of the corporation at versing S. C, 9 Id., 8, note. the time the wrongful acts and viola- (■!)) These actions are regulated by 3 tion of law complained of are alleged Bev. Stat., 450, § 23. to have been done or committed. Og- {w) These actions are regulated by 2 Be-B. Stat., 450, § 26. 53J: ABBOTTS' FORMS. Actions Given by Statute. which one M. N. was appointed sole executor thereof ; and that on the day of , 18 , said will was duly proved and admitted to probate in the office of the surrogate of the county of , and letters-testamentary thereupon were thereaftei* duly issued and granted to said M. N. by said surrogate. III. That said will contained the following legacy to the de- fendant [copy of the clause of the will, or : That by said will the said [decedent] bequeathed a legacy of dollars to the defendant]. lY. That before the commencement of this action said exec- utor paid over to the defendant, as such legatee, the amount of said legacy [or, dollars, being part of the amount of said legacy] out of the assets of said estate. V. That no assets have been delivered by the executor to an}-- of the next of kin of the deceased [except assets to the value of dollars ; and the value of said assets so delivered has been recovered from the next of kin by one M. N., a creditor of the decedent ; or say, and the value of said assets so delivered is not sufficient to satisfy the plaintiffs demand]. 640. Against Heir, {x) I. [State facts showing a debt of the decedent, due and still unpaid.] {y) II. That on the day of _ , 18 , at , said (x) These actions are regulated by 2 But it was beld, before the Code, Rev. Stat., 453, § 32, &c., as amended that several lieirs or devisees were not by the Zaw« 0/1859, 293, oil. 110. joint-debtors within the provisions of (y) The statute supersedes the com- the Revised Statutes, respecting judg- mon-law rules as to the liability of the meuts in suits against joint-debtors heir on the covenant of his ancestor, where a part only of the defendants and it is now necessary in all cases to were served. Van Deusen v. Brower, allege the special facts on which the 6 Cow., 50 ; Whitaker v. Young, 2 Id. plaintiff's right under the statute to 569; Schermerhornu.Barhydt, 9 Paj^e, recover, depends. Gere i). Clarke, 6 28 ; and see Jackson v. Hoag, 6 Johns., Bill, 350 ; and see Mersereau v. Ryerss, 59 ; Purdy «. Doyle, 1 Paige, 558. 8 2f. Y. (3 Comst.), 261. It is not The heirs and personal representa- necessary to aver a debt due in the tives cannot be joined. Stuart v. Kis- ancestor's lifetime. Parsons ii. Par- sam, 11. Barh., 271, and cases there sons, 5 Gow., 476. The liability of the cited. And it was held in Gere ®. heirs is joint, not several. Laws of Clarke (6 Hill, 350), that the defendant 1837, ch. 460, § 73 ; same statute, 2 Rev. cannot, in one count, be charged both Stat., 454. So of the liability of the as heir and as next of kin. devisees. Id., 456, § 60. COMPLAINTS. 535 Against Heir, for Debt of his Ancestor. \deoedenf\, being owner in fee [or otherwise] of the property hereinafter described, died intestate [as to said propei'ty] ; ,and that more than three years before this action, to wit, on the day of , 18 , letters of administration upon the estate of said [decedent] were duly issued and granted to one M. N. by the surrogate of the county of , of this State, appointing said M. N. administrator of all the goods, chattels, and credits which were of said deceased [or, if he left a will, the probate and issue of letters Tnay he alleged, as in the Receding form] . III. That the defendant is the sole heir [or, defendants are the only heirs] of said deceased, and that the following de- scribed premises descended from the deceased to iiim [them] as sUch : [description of jpremises^^ (s) IV. That the" personal assets of said [decedent] were not suffi- cient to pay and discharge the plaintiif's demand, (a) Or, IV". That the said [decedent] left no pei'soual assets with- in this State to be administered [except a small amount, in value not exceeding dollars, which is not sufficient to pay and discharge the plaintiffs demand.] (5) Or, IV. That after due proceedings before the surrogate's court of the county of , by [stating hriefly what], the plaintiff has been unable to collect his said debt [except tlie sum of dollars] from the personal representatives of said [decedent, or, from his next of kin, or, legatees]. Wherefore, the plaintifi' demands judgment that said pi'em- ises be sold, and the sum of dollars, with interest thereon (z) The premises should he described and devisees to discover the lands de- with convenient certainty, although, as vised or descended to them respectively, the description is a matter resting more and the incumbrances thereon, to on- particularly within the knowledge of able him to reach such lands, the defendant, it may be considered (a) Roe v. Sweezey, 10 Barb., 247; that a neglect to describe them does Mersereau v. Eyerss, 3 If. T. (3 Comst.), not pirejudice him. See Sharp v. 261. Sharp, 3 Wend., 278. And it was "Where the defendant is not sued as held in Parsons «. Bowne (7 Paige, heir, but on a special promise, no aver 354), that if the complainant was un- ment of assets is necessary. Elting v. able to ascertain and specify the lands "Vanderlyn, 4 Johns., 237. ■which have come to the defendants (6) 3 Eev. Stat, 4.53, § 33, as amend- from the deceased, he should state that ed by the Laics of 1859, 293, ch. 110. fact in his bill, and call upon the heirs Hollister v. HoUister, 10 Eow. Pr., 533 5S6 ABBOTTS' FORMS. Actions Given by Statute. from the day of , together with costs of this action, be paid to the plaintiff out of the proceeds thereof. 641. Against Devisees, (c) I. and II. [as in Form 639]. III. Tiiat said will contained the following devise to the de- fendants [copy of the clause of the will], and that said devised property is bounded and described as follows [description of premises]. Or, III. That by said will the testator devised to the defend- ants the following described premises [description]. [Continue as in preceding form.] 642. Against Heir or Devisee, where he has Aliened the Land. As in either preceding form, adding : V. That the defendant did, on the day of , 18 , convey said mentioned premises to one 0. P., and that the premises so conveyed by him were reasonably worth dollars. Wherefore the plaintiff demands judgment for [the amount of the debt, hut not exceeding the value of the premises], &c. IV. By Pkesonal Ekpekskntative of Deceased Person, foe Wkong oe Nkgligekce causing Death, ((i) 643. Against Railroad Company. I. That the defendants are a corporation created by and under the laws of this State, organized pursuant to an act of the Legislature, entitled, "An Act to Authorize the Forma- tion of Railroad Corporations, and to Regulate the same," (c) In suing tlie lieirs and devisees are liable, under this statute, for -wrong- jointly, it must be averred that tbe real ful acts, neglects, and defaults, inten- estate descended is insuflficient, Scher- tional or unintentional, that result in' merhorn 13. Barhydt, 9 Paige, 38. To death. Baker ». Bailey, 16 Barb., 54. similar effect, Wambaugh v. Gates, 1 It Js held that this action may be main- Bow. App. Cos., 247 ; affirming S. C, tained where there is a widow only 11 Paige, 505. surviving, or next of Mn only. Safford {d) Laws 0/1849, 388,.ch. 356. v. Drew, 3 Bvxr, 637, 640. Both corporations and individuals COMPLAINTS. . 537 For Injuries Resulting in Death. passed April 2d, ] 850 [or state title, i&c, of special charter], and the acts amending the same ; and at the times hereinafter mentioned, being such corporation, were common carriers of passengers- for hire between the places hereinafter mentioned. II. That on the day of , 18 , said defendants received one M. E". into their cars for the purpose of conveying him therein as a passenger from to [for dol- lars paid to them by said M. JST.]. III. Thd,c the defendants so negligently and unskilfully con- ducted themselves in the management of said train of cars, that through the negligence of the defendants and their servants in guiding the said train of cars, and in not keeping the track of said railroad in proper condition, the said train, while proceed- ing from to , was thrown from the track, and the car in which the said M. N. then was was thrown d(.nvn an em- bankment, and the said M. N. was thereby killed [or, thereby so injured as to cause his death, (e) or state other accident, ac- cording to the fact. See forms .in Section XV., ante, 412; Section XVIIL, ante, 546. IV. That said M. K left no widow, (/) and that his only next of kin is one O. N. his daughter, a child of the age of years, who was dependent upon the deceased for her support, nurture, and education, and has been otherwise injured by his death, to her damage five thousand dollars, {(f) Y. [Allege plaintiff 's appointment as administrator or exec- utor, as in following form, or as in Forms 186 or 187, ante, 140. (e) Brown «. Buffalo & State Line R. ceased. The later cases are inconsistent R. Co., 23 N. T., 191. with the doctrine on which that case (/) As to whetlier the husband and proceeds. Chapman v. RothweU, Eilis, wife are to be considered next of kin to Bl. & E., 168 ; Quin v. Moore, 15 N. Y. each other, see Green «. Hudson Elver 433 ; Oldfield v. N. Y. & Harlem R. R., R. R. Co., 33 Barb., 25 ; Dickins v. N. 14 Id., 810 ; Dickens v. N. Y. Central Y. Central R. R. Co,, 33 N. T., 158 ; R. R.-, 28 Barb., 41 ; Keller v. N. Y. Merchants' Ins. Co. v. Hinman, 13 Ab- Central R. R., 24 Sow. Pr., 173. But hotW Pr., 110 ; S. C, 34 Barb., 410. the complaint might, perhaps, be ob- (^) It was held in Safford ■». Drew (3 noxious to a motion to make more Buer, 637), that the complaint must definite and certain, if tlie widow and aver that the deceased left a widow or next of kin were not named. Keller », next of kin, naming them, and that N. Y. Central R. R. Co., 34 How. Pr., they suffered pecuniary injury in a 173. specified amount from the death of de- 538 ABBOTTS' FORMS. Actions Given by Statute. 644. Against Owner of Warehouse, the Walls of vihich Fell, {h) I. That on and before the day of , 18 , the firm of R. rioe & Co. was possessed of certain lots or pai;cels of lands, with the buildings thereon ei'ected, situate in [desig- nating city, street, and numher'], and which were used by said Urm in the prosecution of their business as machinists ; that upon a portion of said premises was situated a blacksmith's shop, also in the possession and occupation of and used by said firm in their said business, all as aforesaid. II. That on and before said day the defendants were brewers, possessed of certain premises lying in the rear of and next ad- joining the said premises of R. Hoe & Co.; and upon the defendant's said premises, and adjoining said blacksmith's shop, was a buildiiig used by defendants in their said brewing busi- ness; which building last mentioned iiad been negligently, carelessly, and impi'operly consti'ucted, and was not sufficiently strong for the uses to which the defendants had put it; the uppei- part of the wall of the gable end of said building next adjoining said shop not being fastened with anchors as is com- monly done, and the said wall being in other respects weak and insecure ; of all of which the said defendants then and there had notice. III. That the defendants carelessly, negligently, and wrong- fully {i) placed, or caused to be placed, in the upper part of said building last aforementioned, and next adjoining that portion of the wall of the gable end thereof adjacent to the said shop (h) This is, in substance, the com- not exist at common law, but is based plaint in Brown «. Harmon, 21 Barb., wholly upon the statute. In such 508. cases, in order to sustain the action, (i) The actual complaint in this case there must be a positwe allegation not did not aver directly that the defend- only of the acts, but of the qualifica- ants acted wrongfully, negligently, or tions, if any, prescribed by the statute, culpably ; but contained an averment But the defect was held to be cured by that the disaster was caused by the fall verdict. The former rule on that sub of a wall, " owing to the carelessness, ject (laid down in 1 8aund., 338, a,n.'\) negligence, and faalt of the defendants." is not abolished by the Code. Brown And it was Held, on appeal from judg- v. Harmon, 31 Barb., 508. ment for plaintiff, that this was a merely The necessary averment of negli- inferential charge of misconduct. That gence in the act of the defendants has is not sufficient in an action which did been added in the form above. COMPLAINTS. 530 For Injuries Resulting in Deatli. For Penalties. as aforesaid, a very large quantilj of barley, much more than was customarily stowed there, and much more tlian the said wall was able to bear; and that in consequence thereof, and of the weak and insecure state and improper construction of said wall as aforesaid, the upper portion of the said wall of the gable end of said building was, on said day of , forced outward, and fell upon said blacksmith's shop, and crushed it, and cast into the said shop and its yard a large quantity of bi'ick, mortar, rubbish, and barley. IV. That on that day E. S. B., being then engaged in the employ of said E.. Hoe & Co. as a workman, and while in their said blacksmith's shop, was, by the said fall of the wall and contents of the building, struck and instantly killed. V. That said E. S. B., so killed, died intestate; and that on the day of , 18 , letters of administration on liis estate, dated on that day, were duly issued and granted to tlie plaintiff by the surrogate of the county of , whereby she was duly appointed administratrix as aforesaid, and that there- upon she duly qualified and entered upon the duties of her said otfiee. VI. That the plaintiff is the widow of the deceased, and that she was dependent upon him for subsistence, and sus- tained pecuniary injury by his death, to her damage dollars. V. Foe Penalties. 645. General Form, {j) I. That on the day of , 18 , at , the defendant [here state acts constituting a violation of the statute.^ either following the words of the statute., or setting forth the facts more specifically.'] {k) II. That thereby the defendant became indebted in the (J) This form is authorized by the ruling Morehouse «. Crilley, 8 Hmo. provisions of 2 Bev. Stat., 483, g 10 ; Pr., 431, which was to the contrary, and it is held that those provisions are (A) In declaring on a penal statute, not abrogated by the Code, and that even where the act prohibited is not an the method of declaring authorized by oflftnce at the common law, it is fn gen- those provisions is still proper. People eral enough to pursue the words of the !). Bennett, 5 Abbotts' Pr., 384 ; over- statute ; and it is not essential to con- 540 ABBOTTS' FOEMS. Actions Given by Statute. amount of \the penalty or forfeiture] (Z) to the [one for whose use the same is given] ; whereby an action accrned, accordfiig to the provisions of [stating the title or subject-matter of the statute^ and naming the section, title, and chapter, as the case may r^equire, or in som,e other similar terms referring to such statute.] {m) 646. For Selling Liquors without a License; Alleging both Sales in Small Quantities, and Sales to Drink on the Prem- ises. First. For a first cause of action : I. That the defendant, being a resident of , did, at his house or shop known as No. , street, therein, on [each and every day between the day of > 18 , and] the day of ? 18 > sell strong or spirituous liquors or wines * in quantities less than five gallons at a time, * without having a license therefor a^ provided by the act to "Suppress Intemperance, and to Eegulate the Sale of Intox- icating Liquors," passed April 16, 1857. II. That thereby the defendant became, and is, indebted to the said plaintiff in the penalty and sum of $50 for each act of selling; whereby this action accrued, according to the pro- visions of said act, for the aggregate amount or sum of dollars. Second. For a second' cause of action : Repeat above allegations, substituting for the toords between the asterisks the following: to be drank in his said house or shop, or in an outhouse, yard, or garden appertaining thereto [or either of them]. elude " against tlie form of the statute," setting forth any special maUer, and if the facts averred show that the act recover for so many penalties, not ex- charged is an offence against the stat- ceeding the debt claimed as are proven, ute. People ■». Bartow, 6 Cow., 290 ; People v. MoFadden, 18 Wend., 396. and see Lee ». Clarke, 2 Eait, 333. («i) In an action against an officer to {I) In an action for a number of pen- recover a penalty imposed by a general alties incurred for one act, — e. g., in statute for any neglect or refusal to per- • cutting dovra trees, contrary to a stat- form a duty, it is enough to refer to such ute giving the penalty of $35 for each statute, though the particular duty lu tree cut down,— the plaintiffs may de- question was created by a subsequent dare generally in one count, without statute. Morris ®. People, 3 Ben., 381 COMPLAINTS. 541 For Penalties for Selling Liquor. 647. For Selling Liquors on Sunday or Election Day. {n) I. That the defendant, on the day of ,18, that day being Sunday [or, being a day of a public election within said district], at the city of , and in the county of , within the Metropolitan Police District of the State of E"ew York, did publicly keep [or, did publicly dispose of] intox- icating liquors, (o) II. That by reason thereof the defendant is indebted to the plaintiffs in the penalty and sum of fifty dollars; and an action has accrued according to the provisions of the act of the Legis- lature of the State of New York, entitled, " An Act to Estab- lish a Metropolitan Police District, and to Provide for the Government thereof," passed April 10, 1860. 648. By Wife or Husband against Dealer in Intoxicating Liquors, for Illegally Selling to Plaintiff'' s Husband or Wife. I. That on the day of , 18 , at , on com plaint against the defendant, and satisfactory proof bj' this plaintiff, then and ever since the wife \or, the husband] of M !N"., that her husband [or, his wife], said M. N., was an habitual drinker of intoxicating liquors, the overseers of the poor of said town [or other magistrates'] duly gave and issued written notice to the defendant, a dealer in intoxicating liquors, forbidding the defendant to sell or give such liquor to the plaintiff's hus- band [or, wife] for the term of six months from the date of the notice, under a penalty of fifty dollars, with costs, for eacii and every sale or giving of such liquor. II. That after such notice was given to the defendant, and before the expiration of the said six months, the defendant sold [or, gave] such liquors to the plaintiff's liusband [or, wife], wliereby he [she] became intoxicated. III. That thereby the defendant became indebted to the (;i) This form is supported by People Pleas, Special Term, December, 1857. V. Bennett, 5 Abbotts' Pr., 384. To the (o) To follow the words of the act is same effect is a decision of Daly, J., sufficient. See Cole v. Jessup, 10 N. T. in People v. Muller, IT. Y. Common (6 Seld.), 90 ; 10 Mow. Pr., 515. 542 ABBOTTS' FORMS. Actions Given by Statute. plaintiff in the amount of fifty dollars ; and this action accrued according to the provisions of section 19 of the "Act to Sup- press Intemperance, and to Kegulate the Sale of Intoxicating Liquors," passed April 16, 1857. 649. Against aWitness,for Disobeying Suhjpcena. I. That on the day of , 18 , at , the plaintiff caused the defendant to be duly served with a sub- poena commanding him to attend as a witness in the court, in and for the county of \or, to attend as a witness before M. N., an officer of the court, duly empowered to receive evidence, or, to attend as a witness before M. N., a com- missioner appointed by the court, to take testimony, or, to attend as a witness before M. N., a referee appointed by the court, to — hriefiy designating object of reference'\, on the day of 5 18 , there to give testimony in behalf of the plaintiff in proceedings there pending, wherein this plaintiff was the plaintiff, and one O. P. M^as defendant [or otherwise brififiy designate the proceedings']. II. That at the same time the plaintiff caused cents, the lawful fees of the said witness, to be paid [or, tendered] to him. {p) III. That the defendant, not regarding his duty, failed [and wilfully refused] to attend as commanded. Whereby tlie de- fendant became indebted to the plaintiff in the amount of fifty dollars, according to the provisions of section 43 [or, 45] of the Revised Statutes, vol. 2, p. 400, entitled, '' Of Witnesses, their Privileges, and Compelling their Attendance." , IV. Allege special damage, if any, thus — The plaintiff further says, that thereby the plaintiff, when said acticjri was called for tri;il, was compelled, for want of the testimony of said defend- ant, without whose testimony he could not safely proceed to the trial of said action, to move the said court there to postpone \or, continue] the said action ; and the said court did postpone [or, continue] the same, at the costs of the said plaintiff; and (p) In an action to recover tlie stat- tendered to liim ; a general allegation ate penalty from a witness who fails to that he was legally subpoenaed is insuf- appear, the declaration must aver that flcient. McKeou «. Lane, 1 Rail the fees of tho witness were paid or 319. COMPLAINTS 54;J Against 'Witness, for Disobeying Subpoena. For Violation of Ordinance. the plaintiff was compelled to pay on said postponement [or, continuance], as costs thereof, dollars, which sum he was so compelled to pay by reason of the said refusal of the said defendant; to plaintiff's damage dollars. Or, IV. That the plaintiff, when said action was called for trial, was nonsuited for want of the testimony of the defendant, and his action was dismissed, with costs \or otherwise state the substance of the judgment of nonsuit], and the plaintiff was compelled to pay the same, and the sum of dollars, his costs, counsel-fees, and disbursements in the said action ; and that the defendant in said action having become insolvent [or, the demand upon which said action was brought having mean- while become barred by the Statute of Limitations], the plain- tiff' lost his demand, to recover which said action was brought, all which was caused by said refusal of the defendant; to the plaintiff's damage dollars. V. That by reason of the premises the defendant forfeited to the plaintiff the sum of fifty dollars. 650. JF'or Violation of Ordinance of £oard, of Supervisors, {q) I. That on or about the day of , 18 , the Board of Supervisors of the county of Queens, in pursuance of the power in them vested by law, (r) passed a law, entitled, " An Act to provide for Shell-iish and Trout within the Waters (g) Tliia is, in substance, the com- pleaded by citing tbe title and date of plaint in Smith v. Levinus, sustained enactment. on demurrer by tlie Court of Appeals (r) The authority to enact may be (8 iV. T. (4 Seld.), 473), but here made averred in general terms. "Where a more definite and certain by stating the corporation are authorized to pass a by- date of the violation. See Brown v. law if they find it necessary, and they Harmon, 21 Barb., 508. pass it, a declaration on the by-law In general, the by-laws of all corpo- need not aver the necessity. Stuyve- rate bodies, including municipal corpo- sant v. Mayor, &c., of N. Y., 7 Com., 588. rations, must be set forth in pleading. And even if it were necessary to when they are sought to be enforced plead the statute upon which is found- by an action, or set up as a protection, ed a municipal ordinance, the defect of WUc. on Mun. Corp., pt. 1, § 430 ; Har- omitting to do so would be matter of ker 1). Mayor, &c., of N. Y., 17 Wend., form, and should be disregarded, if no 199 ; People v. Mayor, &c., of N. Y., 7 objection be made until the trial, and Bow. Pr., 81. In some of the States, the adverse party be not surprised, however municipal ordinances may be Beman v. Tugnot, 5 Sandf., 153. 544: ABBOTTS' FORMS. Actions for Injunctions ; and Interpleader. of Queens County," a copy of which is annexed as a part of this complaint. II. That since the passing thereof, to wit, on the day of ) 18 , the defendant entered the waters of Cow Bay, in sa,id town of , in said county, the same being the pub- lic waters in said county, and then and there took oysters from the waters in said Cow Bay by means of the process called or known as dredging, and did also throw or cast an instrument called or known as a dredge in said waters, contrary to the provisions of the third section of the said law above mentioned ; whereby an action has accrued to the plaintiff, as such super- visor, to demand and have of the said defendant dollars, being the penalty imposed by the third section of said law. Section XXV. COMPLAINTS IN ACTIONS FOE INJUNCTIONS ; AND INTEKPLEADEK. (a) [The complaints in this and the remaining sections of this chapter are in actions for equitable or specific relief, such as were for the most part sub- jects of suits in equity under the former system of procedure. The Code dispenses with discovery, and the peculiar formulas and three- fold repetitions of the chancery pleading, and requires only a plain and con- cise statement of the facts constituting the cause of action. The theory of the Code seems to do away with the prayer for general relief, and to require the plaintiff specifically to demand- the relief to which he supposes himself entitled, (i) (a) For the allegations of a complaint Code, aid the plaintiff; and for that for injunction against building con- reason we have not usually inserted it trary to covenants, see Maxwell t>. East in the following forms. River Bank, 3 Sosw., 134. Under the chancery practice, the (b) Van Santv., 361. It may, perhaps, prayer for specific relief was not in be well, where there is doubt as to the general essential to the bill. Under a facts in the case, so that the plaintiff prayer for general relief, the complain- cannot safely state the specific relief, to ant might have, as a general rule, such add the general prayer " for such other relief as his case entitled him to re- or further relief as may be just ;" and ceive ; and the prayer for specific relief this prayer seems to have been relied was inserted only for greater caution, on in two cases under the Code (True- Under that system the prayer for gen- body V. Jacobson, 2 Cal., 269 ; Grafton eral relief was, of course, of the utmost 11. Remsen, IG How. Pr., 32) ; but the importance. sounder rule is, we think, that the gen- The Code, however, requires (sec- eral prayer can in no case, under the tion 142) that the complaint shall con- COMPLAINTS. 545 Analysis of the Section. Forras of other demands for injunctions, suited to various cases, will be found in the chapter on Injunotioxs, in Volume II. of this work. 651. To restrain infringement of trade-mark ; and for damages p. 546 652. The same, in case of a periodical publication 548 653. By purchaser of physician's good-wiU, to enjoin his continuing the practice 549 654. To enjoin late partner from continuing business after dissolution 550 655. For inj anction and damages upon breach of convenant by purchaser of a secret process of manufacture, not to disclose the same 551 656. By the People of the State and individual property owners ; — to re- strain municipal corporation from illegal act 558 657. To enjoin a municipal corporation from giving a deed of lands sold for non-payment of an illegal assessment for local improvements . . . 564 658. To restrain negotiation of bill or note 506 659. Against maker and indorser of note ; — to reach collateral securities held by indorser 566 660. Interpleader ■ 507 tain " a demand of the relief to which eral relief is inserted or not. This con- the plaintiff considers himself entitled." struction also accords with the intcn- This obviously requires a specific prayer tion of the Codifiers. They say (First for relief And section 375 provides Report, 195, note to section 231) : " It that the relief granted, if there be no will be recollected that the plaintiff is answer, cannot exceed that demanded required to state, in liis complaint, the in the complaint. So the application relief to which he supposes himself en- to the court for judgment, in case of titled. It will sometimes happen that failure to answer, is to be " for the re- he mistakes that relief; if he do so, lief demanded in the complaint." Code, and the defendant do not appear, judg- § 346, subd. 3. ment ought to be given for that only The clear effect of these provisions which the plaintiff has demanded. If seems to be, that where there is no an- both parties appear, and the whole swer to the complaint, the plaintiff is controversy be gone into, there seems limited to the relief specifically de- to be no reason why the plaintiff should manded, and cannot take a larger not have the relief to which he is en- measure under a general prayer ; and, titled, though he have mistaken it in on the other hand, where there is an his complaint." answer, the court (by section 375) may The case of the relief asked in a grant " any relief consistent with the notice of motion is different ; there be- case made by the complaint, and em- ing no general provision that where a braced within the issue." Under this motion is opposed, the court shall grant provision, where an answer is put in, any relief which the case made shall the demand of relief becomes imraa- require. terial. The case made by the com- This view is sustained by Lamoreux plaint, and the limits of the issue, alone v. Atlantic Mutual Ins. Co., 3 Duer, determine the extent of the power of 680, where it was held that the relief the court. Marquat v. Marquat, 13 N. must be distinctly asked ; and that a T. (3 Kern.), 336. demand, that " if the same be neces- Thus it appears *.hat whether an an- sary," the contract may be reformed, is swer is put in or not, it can make no not proper. See, also, Mills ». Thursby, diffei-eniie whether the prayer for gen- 3 Abbotts' Pr., 433. Vol. L— 35 546 ABBOTTS' FORMS. Actions for Injunctions ; and Interpleader. 651. To Restrain Infringement of Trade-mark ; (d) and for Damages. I. That the plaintiif is, and for a long period previons'to the committing of tlie grievances hereinafter mentioned, had been, the manufacturer [or, the vendor] of an article [describe com- modity] known as , which he has for years last past, oifered for sale and sold [in packages, describing them, if the defendant's are similar'], labelled with his own proper de- vice and trade-mark, adopted by the plaintiff for that purpose m the year 18 , of which the following is a copy [or, speci- men : copy or specimen of label ; or, in a similar manner, state other trade-mark]. II. That by reason of the long experience and great care ol the plaintiff in his said business, and the good quality of said [commodity], the same has become widely known in the com munity as a valuable and useful article, and acquired a high reputation as such, and has commanded and still commands an extensive sale at [and elsewhere], which is and has been a soui'ce of great profit to this plaintiff. HI. That it is known as such article, to the public and to the buyers and consumers thereof, by the said name of , and by the plaintiff's own proper device and trade-mark afore said. lY. That notwithstanding the long and quiet use and enjoy- («) In Christy «. Murphy (13 iZbw.Pr., such names, devices, &c., as to form a 77), an injunction was granted, at the colorable imitation of the omnihuses suit of the founder of " Christy's Min- of the plaintiff. strels," a public entertainment, restrain- So, also, an injunction will lie, at the ing a rival establishment from the use suit of one, against another, his former of the same name. And the case was copartner, restraining the continuance put upon the same principles which of the use of the signs containing the govern the granting of injunction to old firm-name, without sufficient alter- restrain infringement of trade-marks. ations or additions to give distinct no- In an action by the proprietor of tice of a change in the firm. And the " The Irving House," the defendant absolute refusal of the defendant, be- was enjoined from calling his inn, in fore suit brought, to remove such signs, the same city, " The Irving Hoiel " exonerates the plaintiff from any obU- Howard «. Henriques, 3 Sandf., 735. gation to offer to contribute to the ex- In Knott v. Morgan (3 Keen, 313), penfse of the removal, or to allow rea- the defendant was restrained from sonable time therefor Peterson s running an omnibus having upon it Humphrey, 4 Abbotts' Pr., 894. COMPLAINTS. C47 For Injunction against Infringement of Trade mark. inent by the plaintiff of said name and trade-mark, the defend- ant, well knowing tlie premises, but wilfully disregarding the plaintiff's rights, thereafter, and in the year 18 , wrongfully [and fraudulently] prepared and offered for sale, and now does offer for sale and sell, at , and elsewhere, an article {d) in imitation of the plaintiff's article, which [with intent to de- ceive and defraud the public and .the buyers and consumers thereof ],(. Menck, 1 How. App. Gas., 547 ; tion. Coats v. Holbrook, 2 Sandf. Gh., but compare Fetridge v. Merchant, 4 586. Abbotts' Pr., 156. («) Fraud in the defendant is not (/) It is not sufficient to show that, necessary to be shown, in order to persons unable to read might be de- maintain the action. MiUington v. Fox, ceived by the resemblance of the labels , 3 Myl. & G., 338. To sustain an in- but it must be shown that purchaserf junction, as distinguished from an ac- in general, paying that attention which tion for damages for deceit, it is suffi- persons usually do in buying the arti cient to show the fact of falsity, and cle in question, would probably be de- that the effect will necessarily be to ceived. Partridge v. Menck, 2 Barh. deceive. Peterson n. Humphrey, 4 J.5- Ch., 101 ; afBrming S. C, 3 Sandf. Gh., botts' Pr., 394. 623 ; Crashaw ii. Thompson, 4 Mann. & But the plaintiflf himself must be free G., 385. from fraud in the business which he (g) This averment is not essential to seeks to protect. Pidding t. How, 8 thecauseofaction, but may be inserted, Sim., 477 ; Perry v. Truefit, 6 Beav., when appropriate to the case, as mate- 66 ; Motley v. Downman, 3 Myl. & G., rial to the damages. 548 ABBOTTS' FORMS. Actions for Injunctions ; and Interpleader. [YII. That before this action, and on the day of , 18 , the plaintiif requested tlie defendant to desist from his infringement of the plaintiff's trade-mark as aforesaid, and to pay to the plaintiff what, upon a just accounting, there would be due to him therefor; yet the defendant refuses so to do.J (h) YIII. That by reason of the premises the plaintiff has been injured, to his damage dollars. Wherefore the; plaintiff demands judgment against the de- fendant : 1. That the defendant and his servants and agents be forever restrained {i) from preparing, putting up, selling, or offering for sale said imitation of the plaintiff's article, or any article bear- ing the name of , or any imitation of said name, or bear- ing said false trade-mark, or any imitation of the label or trade mark of the plaintiff. 2. That the defendant account for and pay over to the plain- tiff all the profits realized by him upon sales of said [commodity], sold by him with any imitation of plaintiff's trade-mark. 3. For dollars damages. 4. And for the costs of this action. 652. The Same, in Case of a Periodical Publication. That he is the proprietor and publisher of a newspaper [on magazine, or, almanac, or other periodical] at , known and distinguished as [na7ne of plaintiff'' s piihlicatiori] ; and that as such proprietor he has published the same daily [or, monthly, 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 establishment of the same in the year , under that name, {j) [Contimie s^ibstantially as in preceding form, giving copy of (A) This allegation, thongli usual, names of " The National Advocate" and seems unnecessary. " The New York National Advocate," (j) The preliminary injunction will was held to he such that an injunction not he granted, unless the plaintiff's against the latter could not he main- legal right and the defendant's viola- tained. Sno-vvden -e. Noah, HopTc., 347. tion are clear. Merrimack Manufactur- So of that between " The New Era" ing Co. V. Garner, 2 AhlotW Pr., 318. and " The Democratic Republican New ( j) The dissimilarity between the Era." Bell i>. Locke, 8 Paige, 75. COMPLAINTS. 549 For Injunction against Continuing Business. the headings or title-pages^ if defendant has irnitated the ap- pearance of plaintiff''s, and substituting '■^publication^'' for '■ commodity^'' and "subscribers and readers" for '■'■ consume7's" cfec.j 653. By Purchaser of Physician's Oood-will, to Enjoin his Continuing the Practice. (Jc) I. That in the month of , 18 , the defendant being a physician practising in , in the county of , and its vicinity, in consideration tliat the plaintiff would purchase of him [his dwelling-house, and lot, and office in that village, and the furniture thereof, andj the good-will of his practice, for the sum of dollars, (Z) the defendant agreed with the plaintiff that he would not practise medicine, or in any manner do busi- ness as a physician, in said county, at any time after the day of , 18 . II. That the plaintiff accordingly purchased from the defend- ant his said , for the price and at the terms aforesaid, and paid said sum of dollars, for the gocd-will of said business. III. That the plaintiff duly performed all the conditions of said agreement on his part. IV. That the defendant, in violation of his said agreement, afterwards returned to , and commenced, and still con- tinues to practise medicine, and to do business as a physician in said county. Wherefore the plaintiff demands : 1. That the defendant be enjoined from continuing so to do. 2. For dollars damages. 3. And for the costs of this action. (k) This form is sustained by Hoi- appears by the contract or proper aver- brook V. Waters, 9 How. Pr., 335. For ments in the declaration that there was another complaint, seeking only dama- a sufficient consideration to support ses see ante p. 377. such a contract. Boss v. Sadgbeer, 21 (Q A declaration on a contract which Wend., 166. ie in restraint of trade is bad, unless it 550 ABBOTTS' FORMS. Actions for Injunctions ; and Interpleader. 654. To Enjoin Late Partner from Continuing Business after Dissolution. I. That on the day of ? 18 , the plaintiff and defendant being [or, about to become] partners, carrying on the business of at ,. they both executed under their hands and seals articles of copartnership for the regulation of their said business ; by which, in consideration of the premises, and of the mutual agreement thereto, it was among other things provided, tiiatin case of the dissolution of the partnership, neither of them should continue business in the building occupied by the firm, nor within one block thereof, for the space of after such dissolution, without the consent of the other. II. That on tlie day of j 18 > said partnership was dissolved by mutual consent. III. That the defendant is now, and within after said dissolution, carrying on such business at No. , • street in said city, being within one block of the same premises oc- cupied by the late firm, and declares his intention to persist in so doing. That he has jDut placards on the door announcing his establishment in said business there, and has attempted to advertise the same facts in the public papers ; and is employing sei'vants on the premises in the said business. IV. That the plaintiff has not consented to these proceedings by the defendant, but has objected thereto, and requested him to desist therefrom, which he refuses to do. V. That the plaintiff has not continued in business on the said premises, nor within one block thereof, but is endeavoring to establish himself in said business at No. in street; but is unable to do so by reason of the defendant's acts afore- said, and the injury to the plaintiff by the acts complained of cannot be fully compensated in damages Wherefore the plaintiff demands judgment that the defend- ant, his agents, and servants be restrained by injunction from carrying on, or in any wise engaging in said business in the building known as No. in street, in the said city or within one block thereof, for the term of from the day of , 18 ; and, also, from advertising or announcing in any manner his location in business there during such term, or putting or keeping up any signs or placards for COMPLAINTS. 551 For Injunction Against Disclosing Secret of Trade. that purpose ; and that tlie plaintiff have his costs of this action. 655. For Injunction and Damages upon Breach of Covenant hy Purchaser of Secret Process of Manufactv/re not to Disclose the Same, (m) I. That the plaintiff is by trade a brewer, and teacher of the art of brewing in the city of ISTew York. II. That by many years of labor and expending large sums of money in experiments, he became possessed of a knowledge of brewing ale by a new and improved process, which was and is an important secret of his trade, whereby the ale as so manu- factured was of a better quality than that manufactured by the old and generally used process, and whereby a great saving of malt was effected ; and the keeping qualities of ale so manu- factured by plaintiff's process, were better than that manufac- tured or brewed by the old process. And that said knowledge or discovery was employed and used by this plaintiff in man- ufacturing, at his brewery in , an ale greatly liked and sought after by the public ; and the said knowledge or discovery was of great value to him in his said brewing busi- ness, and of great value to any one engaged in the brewing business, to. whom he should impart it; and the plaintiff' made it his principal avocation for several years past to communicate his improved process of brewing to other brewers for a con- sid&ration, whereby he acquired great gains, a fact well kno\ni to the defendants. III. Tliat his said improved process is not, as he is advised and believes, the subject of a patent under the patent laws of the United States, it not being of such a nature as required by the law to be patentable; that therefore he never pbtained a patent-right on said process, although he did obtain several patents for brewing-utensils ; consequently he has no protection (ot) This is, in substance, the com- that it did not state facts sufficient to plaint in Hammer v. Barnes, which was constitute a cause of action ; that the sustained by Mr. Justice Gierke, in the court had no jurisdiction ; that there Supreme Court, at special term (1863), was a defect of parties, and a misjoin against a demurrer upon the objections der of causes of action. 552 ABBOTTS' FORMS. Actions for Injunctions; and Interpleader. against the acts of the defendants, except in the preventive remedy of this court. lY. That, as he is advised and believes, his said process is not a matter wliich can be readily and specifically set forth in a written description thereof in such full, clear, and gxaet terms, avoiding unnecessary prolixity, as that the manner and process of making, using, and compounding the same could be readily tmderstood by any person skilled in the art, so that such person thereby would be enabled to make, construct, com- pound, and use the same.(?i) V. That on or about the day of , 18 , the said defendants, S. S. B. and A. B. E"., composing the firm of A. B. JST. & Co., and who were engaged in the business of brewing in , applied to the plaintiif to communicate said process to them, as they were desirous of adopting the same, for the sole purpose of improving the quality of the ale to be thereafter manufactured by the defendants in their brewery in , which process the plaintiff was willing to communicate to them for a moderate sum, wliich would be considered nominal between the parties when compared with the value of said improvements, provided the said A. B. IT. &. Co. would bind themselves not to communicate the same, or any part thereof, either directly or indirectly, to any other person or persons, ex- cept the defendant C. N. B. ; and provided, also, that they, said defendants, would not afford facilities, by neglect, carelessness, or otherwise, so that the said process, or any part thereof, would be discovered by any other person or persons ; and provided, further, that the said defendant C. N. B. should make no other use whatever of the said process, or any part thereof, but only for the benefit of the said A. B. N. & Co., by being used in their brewery described ; and provided, also, that they, the said defendants, would well and truly keep the covenants and stip- ulations in the agreement and bond hereinafter set forth, agreed (n) In Deming i>. Chapman (11 How. grant relief to inventors, the power ot Pr., 383), an injunction to protect an securing for limited times to them the invention was refused, on the ground exclusive right to their respective dis- not only that secrets were in their na- coveries being coniided by the Consti- ture not capable of protection through tution to the general government. The the medium of judicial investigation, above allegations as to the nature of but also on the ground that the courts the plaintiff's secret were inserted to of the State had not jurisdiction to meet this view. COMPLAINTS. 653 For Injunction Against Breacli of Agreement for Secret of Trade. to be preserved and kept, it being a farther and tacit stipula- tion between the parties, that the plaintiff might be at liberty to refer to the said A. B. IST. & Co., as a reference to substan- tiate the value of his said improvement, VI. That thereupon, and on said day, the plaintiff and the said defendants, S. S. B. and A. B. N., composing said firm as aforesaid, entered into the agreement, of which the following is a copy : [Copy of agreement.] VII. That in and by said agreement, the said S. S. B. and A. B. N. accepted all and singular the conditions aforesaid; and, as an additional security, executed and delivered to this plaintiff their bond, of which the following is a copy : [Copy bond for performance of agreemeritJ] It being, liowever, ex- pressly understood by and between the parties, and so stipulated therein, that they, said A. B. N. & Co., should be boimd and held unto the plaintiff as well by and under the covenants in the said agreement contained as by and under the penalty and condition of the said bond. YIII. That the plaintiff, in fuliilment and compliance with the conditions and covenants in said agreement contained to be done and fulfilled on his part, did therefore communicate to said S. S. B. his process of brewing as covenanted by him in said agreement, and gave him all necessary explanation in regard thereto ; whereby the firm of A. B. ]^. & Co. were en- titled to, and did, brew by means of said process of the plaintiff, at their said bre\Fery in , ale of a far superior quality to that which they were brewing previouslj^, by the old process, and thereby they saved large quantities of malt ; to their great advantage, reputation, and profit, and they still continue to manufacture ale under said process. And the plaintiff furtlier saith, that he in all things duly performed the conditions on his part. IX. That the said defendants, S. S. B. and A. B. E"., com- posing said firm as aforesaid, and the defendant C. N. B., have, in violation of the express covenants and conditions in said agreement contained, made by the said defendants A. B. N. & Co., since the execution and delivei'y of said agreement, com- municated said process, knowledge, and secret of trade given Uy them as aforesaid by the plaintiff, in the brewing of ale, to divers parties and persons engaged in brewing ales, to wit 55i ABBOTTS' FORMS. Actions for Injunctions ; and Interpleader. [naming ihem], {o) and other persons ; and have afforded said Eieveral and other persons, by their neglect, carelessness, and otherwise, facilities in discovering said plaintiff's process, and certain parts thereof; so that the said several firms above named, and others, have been enabled, under and by means ol such communication and knowledge, and by reason of said carelessness, neglect, and facilities otherwise given, to manufac- ture, and are still manufacturing, large quantities of ale by using the said improvements of the plaintiff in their brewings, to the great advantage, profit, and reputation of said firms, and to the detriment and damage of the plaintiff; and thereby have enabled the said several persons and firms to bring into market and sell a quantity of ale superior to that brewed by them by the old process, and similar to that of the plaintiff; and thereby have interfered, indirectly and directly,, with the ale trade of the plaintiff. X. That the said defendants have communicated said knowl- edge and secret of trade in regard to the plaintiff's improved process of brewing ale to said several firms, and to other per- sons, and each thereof, for and in consideration of certain sums of money paid to and received by the defendants A. B. IST. and S. S. B., from said firms and from other persons respectively ; and also for and in consideration of certain promises and inducements made and held out to the said A. B. N. and S. S. B. by said several named persons and others, and by each of them. XL That although it was definitely and distinctly understood that the said defendants should not, in any way, interfere with his, the plaintiff's, rights and business as a teacher of brewing, yet, in fraud of the rights of the plaintiff, they, the defendants, S. S. B. and A. B. IST., as well as the said defendant, C. E". B., who has become possessed of said knowledge as manager of A. B. N. & Co.'s brewery under the said agreement, are ready and willing, and offer to instruct and inform any and all the brewers that they may think proper to, in and of the plaintift''s said improved process in the brewing, of ale, for sums of money far less than the sum generally charged by the plaintiff for communicating his process, and thus underselling liim. That (o) On the demurrer, these persons were held not to be necessary parties. COMPLAINTS. 555 For Injunction Against Disclosing Secret, and Competing with. Plaintiff. they have held themselves out to the world as ready and willing so to do, and thereby have seriously interfered with the avoca- tion of the plaintiff as a teacher of brewing. XII. That prior and subsequently to the execution and de- livery of said agreement, the said \_persons named in para- grajph IX.'\ were in negotiation with this plaintiff on the sub- ject of the plaintiff's communicating to them his process of brewing. That said negotiations had, as plaintiff believes, progressed to such a point as that the said several parties would have acceded to this plaintiff's terms in communicating to them, and each of them, his said process ; but that while negotiations were pending between this plaintiff' and said sev- eral parties, the said several parties obtained, and the said defendants secretly, and without plaintiff's consent, and in fraud of his rights, communicated to them, the plaintiff's process of brewing of ale, in plain violation of the conditions of said bond and of the covenants in said agreement; and said several par- ties, each and all of them, thereafter declined and refused to purchase said process of the plaintiff; and this plaintiff verily believes that the said several parties and tirms would have been willing to have given the sum of $10,000, or a large sum of money, each, to the plaintiff for such his instructions in his said improved process of brewing ale, if the same had not been obtained from the said defendants, A. B. N. & Co. XIII. That the plaintiff, in all the communications which he has made of said process to others, has done it for a valuable consideration, and also under express stipulation to preserve the secret on the part of those to whom it has been communi- cated, similar in terms and effect to the contract of the said A. B. ]Sr. & Co., so that the plaintiff has maintained the value of his said process, until the wrongful acts of the said defendants, by preserving it from the knowledge Of the brewing trade, except M-here he communicated it for value received. But now, by the wrongful acts of the said defendants, the said secrets of process have been disclosed to so many who are not bound by any contract with the plaintiff to refrain from dis- closing the same, that its value as a secret is very much dimin- ished, and will be still further diminished unless the said defendants, and each of them, is restrained from further impart- ing said secret to others. That the amount of such injury can- 556 ABBOTTS' FORMS. Actions for Injunctions ; and Interpleader. not lie estimated in money, nor can it be compensated directly, save by tlie preventive remedy of this court. XIV. The plaintiff further shovifs, that he had also, at the time of making said agreement, and down to the time of the violation thereof by the defendants A. B. N. & Co., in addition to his occupation of teaching brewers, a large and profitable interest in a business at , in brewing and selling ale. That one great motive and object of the covenants and stipula- tions on th« part of the defendants A. B. N. & Co., in the said agreement and bond contained, was that they, the said A. B. N. & Co., should not impart said improvements to other brewers, who thereby woilld be enabled to bring into market in aforesaid, and in the other parts of the United States, an ale superior to that brewed by them under the old process, similar in quality to that brewed by the plaintiff; and therefore it was provided in and by said agreement, that the said A. B. N. & Co. should not in any way injure or interfere with the ale trade of the plaintiff, or to offer or to sell, directlj' or indirectly, ale or any malt liquor to any person or persons who had been furnished by this plaintiff with said ale. That by reason of said acts and doings of the defendants in the premises, the in- terest in the said trade and business of the plaintiff' stands in danger of beiug greatly injured and reduced in amount, and interfered with by the aforesaid violation of said agreement by the defendants A. B. N. & Co., in this, to wit: That the said \_pe7'sons named in paragraph IX.], and the other persons to whom the defendants liave communicated the process, have al ready injured and interfered wdth, and will interfere with the plaintiff's said business and trade, and his occupation as a teacher, in offering to sell, and in selling at lower prices and on easier terras than those of the plaintiff, ale manufactured under plaintiff's said improved process, to his customers, and those he had been in the habit of supplying with said ale, from which acts and doings the said A. B. IST. & Co., under their said agree- ment, were especially restricted from doing, and which several acts and doings have a tendency to, and will occasion irrepara- ble injury to this plaintiff, which cannot be estimated directly, and are not susceptible of exact proof, but which, if allowed to continue pending this litigation, will render ineffectual any judgment the plaintiff may obtain in this action. COMPLAINTS. 557 For Injunction Against Disclosing Secret of Trade. XV. And the plaintiif further shows, that the said defendants A B. N. & Co., and each of them, have not sufficient responsi- bility to respond to the plaintiff, as he believes, even for the amount of damages provided to be paid in and by the terms of said bond ; and he believes that he will be wholly without any pecuniary remedy for sxnj damages sustained by the breach of said covenants, unless they are enjoined by the court. XVI. That by the aforesaid violation of the said agreement by the defendants S. S. B. and A. B. IST., the plaintiff has been directly damaged and injured in a great amount, to wit, dollars in addition to the said dollars ; which last sum he claims due liim from them by reason of the breach of the con- ditions of said bond. XVII. That for the purposes of the relief by injunction here- inafter prayed for, tlie plaintiff makes the said C. JST. B. a party- defendant in this action for that purpose and view only ; and the plaintiff avers that the said 0. IST. B. well knew of the agree- ments, and covenants, and bond aforesaid, and its and their various stipulations at the time of the imparting to him of the process referi'ed to in said agreement, and of the violation thereof by the said defendants ; and he well knew that by the said agree- ments and covenants, the said A. B. IST. & Co. bound themselves unto this plaintiff, and made themselves responsible to him, for the acts, omissions, and carelessness of the said C. N. B. in the premises, and that the said C. N. B., as agent and manager of the brewery of A. B. IST. & Co., participated with the other said defendants in said violation. Wherefore the plaintiff prays judgment: 1. Against the said defendants, S. S. 13. and A. B. E"., for the amount of liquidated damages provided to be paid in and by the said bond, to wit, the sum of dollars. ■ 2. The further and additional sum of dollars as ad- ditional damages sustained by him by reason of the violation of said agreement by them, over and above the damages provided for in said bond. 3. That the said defendants, S. S. B., A. B. K, and C. K B., be forever enjoined and restrained from communicating in any manner, either directly or indirectly, now or at any time here- after, to any person or persons, any knowledge or information in relation to or concerning the plaintiff's said improved pro- 558 ABBOTTS' FORMS. Actions for Injunctions ; and Interpleader. cess of brewing ale, which was imparted to said S. S. B. nnJei said agreement of , 18 , by the plaintiff, so that the said process of brewing, or any part thereof, shall be discovered by any person or persons whomsoever. And, also, in the mean time until said judgment, enjoining and restraining the said defendants, and each of them, from the acts aforesaid, until the further order of this court. 4. That the said defendants A. B. K and S. S. B. in addition to paying him the liquidated damages provided to be paid to liim in and by said agreement, may also be adjudged and de- creed to pay to him, the plain tiif, such additional damages as he may have sustained by reason of such other breaches of the covenants in this action as may not be included in said breach calling for said dollars. 5. That the said two named defendants, and each of them, may be adjudged and decreed to be the trustees of this plaintiff, for the moneys received by them from said several parties, and from others for said instructions, and to account to him, the plaintiff, therefor ; and until such accounting, that he, this plain- tiff, may have an order for injunction and receiver in this action. 6. And he further prays for such other and further relief in the premises against the two defendants, A. B. N. and S. S. B., as may be just, and that he may have judgment thereon, with costs of suit. 656. By the People of the State, and Individual Property Owners, — to Restrain Municipal Corporation from Illegal Act. (p) The People, complaining by M. JST., their attorney -general, (q) and the [individuals^, complaining as well on their own belialf (p) This is, in substance, the original People of the State, by the Attorney- complaint in Davis !). Mayor, &c., of N. general. — is a necessary party to a suit Y., 2 Duer, 663, amended by making which seeks relief against an act of a the attorney-general a party. As to municipal corporation which works a the cause of action in the individual public injury to the whole community plaintifife, it is further supported by over which the corporate jurisdiction Milhau V. Sharp, 28 Barb., 228 ; S. C, extends. Davis v. Mayor, &c., of N. Y., 7 Abbotts' Pr., 220 ; aflBrming S. C, 17 2 Duer, 663. Barb., 435. Suits for the redress or prevention of (j) The attorney-general, — i. e., The public wrongs can be brought only in COMPLAINTS. 559 For Injunction Against Granting Railroad Franchise. as oil behalf of all others, owners of real property In the city of ]N"ew York, who may be similarly interested in the matters herein stated, (r) allege : I. That the plaintiifs [individuals] are severally owners of very considerable real estate, situated on the street in said city known as Broadway, (s) to wit: {briefly designate the prem- ises.'] II. That the taxes levied and assessed by the defendants upon the real and personal property of the citizens and tax- payers of Said city, for several years past, are as follows : [tabular statement of aggregate taxes for several years]. And the amount estimated as required for the coming year amounts to the enormous sum of dollars. III. That by reason of the corrupt and illegal acts of said de- fendants in squandering the public moneys, in farming out and disposing of, in almost every imaginable way, the public prop- erty, contracts, i-ights, privileges, and franchises, in the manner hereinafter stated, and in various other ways, the taxes of said city are annually increasing to an alarming degree. The effect has already been to induce large numbers of persons doing and transacting business in said city, to remove out of the limits the name of the people ; and when in- control of the corporation. Fitzpatrick dividuals sue, as such, they must show v. Flagg, 5 Abbotts' Pr., 213. that their primte rights are concerned. (r) A tax-payer or corporator in a Wrongs sustained by stockholders in municipal corporation, who sues as a private corporation, by the misman- such for an injunction against the cor- agement of the corporate property poration, must aver in his complaint by their officers, are private wrongs, that he sues in his own behalf, and VVetmore v. Story, 3 Abbotts' Pr., 363. also in behalf of all others similarly See, also, Doolittle v. Supervisors of interested. Wood v. Draper, 4 Abbotts' Broome, X8 N. Y., 155 ; and compare Pr., 323. Getty V. Hudson River R. R. Co., 31 (») The complaint in the case from Barb., 617. which this is adapted alleged here that As to when the individuals should the plaintiffs were citizens of the State, be joined as parties-plaiiitifl", see People residents and corporators of the city, eii reZ. Crane «. Ryder, 12 iV^. J". (3 .Br«?'re.), and tax-payers therein, above the sum ■183 ; Attorney-general o. Mayor of Dub- of $250, — annually. But these allega- lin, 1 Bligh, N. R. ; State b. Mayor, &c., tions are not material, as it is only the of N. Y., 3 Duer, 119. ownership of property in the street in It seems that the corporation of a question, or other ground of special city should always be made a party to and individual inj ury, which entitles an action, the object of which is to them to maintain the action. Doolittle control the agents of the corporation in d. Supervisors of Broome, 18 iV^. Y., 155; the disposal of moneys solely under the Roosevelt n. Draper, 33 Id., 318. 560 ABBOTTS' FORMS. Actions for Injunctions ; and Interpleader. thereof, to avoid the onerons and increasing taxes annually im- posed npou the property owners of said city. TV. [Here followed statements of the ihcorjooration and gen- eral fowers of the defendant., and of the substance of certain provisions of the charter which the threatened acts of the de- fendant would violate^ y. That en the day of ,18 , a petition, of which a copy is hereto annexed as part of this complaint, and marked A, was presented to said Common Council, through their said Board of Aldermen, for an ordinance authorizing the petitioners, who signed the same, to establish and construct a railway in said Broadway. VI. That, afterwards, numerous remonstances were presented to said Board of Aldermen, by the principal owners of property on Broadway, against such a project. VII. That said Broadwaj' is the principal street or thorough- fare in said city. That the greater part of that portion of said street which lies between the Battery at the south, and Union Place at the north, a distance of about three miles, is now devoted to trading and commercial purposes ; and a large poi-- tion of the trading and commercial business of the said city, greater than that of any other street, is now transacted in said street, and the small portion of the street which is yet used for dwellings is rapidly changing its character, and stores, shops, and other buildings for trading and commercial purposes are rapidly taking the place of dwelling-houses. VIII. Tliat said street is now constantly thronged with all kinds and descriptions of vehicles and passengers. That the portion of said street located below Canal-street, a distance of about a mile and a half trom the Battery, is more thronged and crowded than any other part of said street or said city. That the average width of the cariage-way in said Broadway does not exceed forty feet [oMd further statement of the actual width in various places'l. IX. That for the purpose of putting said carriage-way in the most perfect order and condition, and to facilitate the great and increasing travel thereon, which is at this time far beyond that of any other street in said city, the said corporation have very recently caused about two miles and a half thereof, extondin» (with the exception of a few blocks) from the Battery to Eighth- COMPLAINTS. 66.1 For Injunction Against Illegal Act of Municipal Corporation. street, to be paved with a very durable and expensive pave- ment, known as the Euss pavement, consisting of square blocks of granite, carefully laid upon a concrete bed of hydraulic cement, mixed with gravel and sharp stones. X. That said corporation have expended upon said pave- ment, and paid, or are bound to pay therefor, out of the city treasury, upwards of $500,000. By means whereof a great burden has been brought upon the tax-payers of said city, including the plaintiffs [individuals]. XI. That before any final action was had upon said petition, and while the same was before the Common Council for con- sideration, various other petitions and propositions were pre- sented to them by men of wealth, character, and standing, residents of said city, fully and abundantly able to fulfil and perform their engagements and promises, asking for the privi- lege and authority to construct and establish such a railroad in said Broadway, and run cars, and carry passengers, upon the following terms : [Statement of the various offers made, and the income that each would produce to the relief of tax-pay ers.\ XII. That in and by the charter of said corporation and laws of this State, the legislative powers of said defendants are vested in the Boards of Aldermen and Assistant Aldermen thereof, and monthly sessions of said boards are authorized to be held, com- mencing on the first Monday of each month, and to continiie for such period as in their opinion the public business may require. But neither board is authorized to adjourn for a longer period than three days, except by a resolution, to be concurred in by the other body. XIII. That the last November session of said boards com- menced on the first day of said month, on which day said Board of Aldermen met, and adjourned to the 4th then instant. On said 4th day of November said Board of Aldermen again met, and adjourned to the 8th then instant, without the concur- rence of said Board of Assistant Aldermen, by resolution or otherwise ; whereby, and by means whereof, as the plaintiffs claim and insist, the session of the said Board of Aldermen, and their powers as a legislative body and part of said Common Council, for and during said month of November, ceased and determined on said 4th day of November, 1852. XIV. Notwithstanding which, said Board of Aldermen after- VoL. I. — 36 662 ABBOTTS' FORMS. Actions for Injunctions ; and Interpleader. wards, and on the 19th day of November, 1852, met ; and, under the color of being assembled as a Board of Aldermen, {t) and co-ordinate branch of said corporation, adopted a resolution, of which a copy is annexed as part of this complaint, and marked B. XV. That, afterwards, said 'resolution was transmitted to said Board of Assistant Aldermen for their concurrence. That on the 6th day of December, 1852 (being the first day of the session for that month), the said Board of Assistant Aldermen did, notwithstanding the remonstrances and petitions aforesaid, adopt said resolution, and order the same to be transmitted to the mayor of said city for his approval. XVI. That, subsequently, and on December 18th, 1852, said mayor returned said resolution -to said Board of Aldermen without his approval, and .accompanied by his objections there- to ; a copy of which objections are annexed as a part of this complaint, and marked C. XVII. That the several and respective members of the said boards who voted in favor of said resolution and grant, being a majority of the members elected to each of said boards, have given out, threatened, and declared that they intend to adopt and pass said resolution, notwithstanding the objections of said mayor; and that they intend to keep said boards in session during the month of December for that purpose, and to that end have met and adjourned (frequently for want of a quorum for the transaction of business) from time to time, in anticipa- tion of the coming in of said mayor's objections, and with the intent of protracting their session for the purpose of passing and adopting said resolution, notwithstanding their compensa- tion for service in their respective boards terminated after the first eight days of their session, and which have long since ex- pired; and these plaintiifs are apprehensive that said resolution will be passed as aforesaid as soon as the said boards can by law act on the same. ' XIX, That the grantees or persons named in said resolution have given out and alleged that, upon said resolution being (J) A complaint to restrain an injury with the corporate powers and duties to, or a misapplication of, the corpo- Arkenburgh v. Wood, 33 Barb., 360; rate property or franchises, must show and see Leigh v. Westervelt, 2 Dicer, fraud, corruption, or violation of law on 618. the part of the functionaries intrusted COMPLAINTS. 5C3 For Injunction Against Construction of Railroad in City Street. adopted by said boards, they intend forthwith to accept the same in writing as therein provided ; and will thereupon proceed to break up the pavement, lay down the said railway, and establish said railroad iu Broadway. XX. That the laying down of such a railway, and the estab- lishment of a railroad in such a thronged thoroughfare as Broadway, is as yet an untiied experiment ; and the same can- not be laid in said street without disturbing, and thereby destroying, said Kuss pavement, so recently laid therein, at such a vast expense to the tax-payers of said city. XXL That the laying down of such a railway would require at least four months, if prosecuted with diligence; during all which period said street would be rendered almost wliolly impassable, to the great injury and detriment of the plaintiffs lindividuals] in the enjoyment of their said property, {u) and to other persons having occasion to use and travel in said street. XXII. That the said {individual plaintiffs], and all other citizens and travellers, now have a right to tlie fi-ee and common use of the whole of the carriage-way of said street, with their carts, carriages, and other vehicles ; and that establishing a railroad in said street will be appropi-iating the street to a iiew and unauthorized use, and one which is exclusive in its nature, to the great injury and damage of those who now have a free and common right therein as aforesaid. XXIII. That said street is too narrow to admit the establish- ing of such railway, consistent with the lights, privileges, and interests of the citizens and tax-payers of said city, and other travellers in said street. And such railway, if constructed, will be a public nuisance in said street. XXIV. That said corporation has no right, power, or author- ity, under any law of this State, or otherwise, to establish or construct such a railroad in said street; nor can they grant (m) Where plaintiff seeks an injunc- if no motion is made to require plaintiff tion to restrain the appropriation of a to reform his complaint in that respect, public street, on the ground of a special and no objection is made upon the trial injury to liinl by preventing access to to the introduction of evidence tending his adjoining lot, he should specify this to show such injury, the objection will grievance in his complaint ; a general be considered as waived. Wetmore v. charge that the work will be specially Story, 33 Barb., 414; S. C, 3 AVbotts' injurious to him, is not sufficient. But Pr., 363. 56i ABBOTTS' FORMS. Actions for Injunctions ; and Interpleader. the riglit or privilege to construct and establish such a railroad "therein to any person or persons. (v) XXY. That all the said acts and doings of said Common Council, in relation or tending to the establishment of said rail- road, are in bad faith, and in direct opposition to the interests of said corporation, and of the citizens, tax-payers, and other inhabitants of said city, and of travellers therein. Wherefore the plaintiffs demand judgment, as well on their own behalf as on behalf of all others, tax-payers and corp ora- tors of said city, that the defendants, the counsellors, attorneys, solicitors, and agents, and each and every of them, be forever restrained from granting, in any way or manner, to J. S. and others, the persons named in said resolution, or their associates, or any other person or persons whomsoever, the right, liberty, or privilege of laying a double or sluj track for a railway in Broadway from the South Ferry to 57th street, or any railway whatsoever in Broadway ; or of breaking or removing the pavement, or of obstructing Broadway in any other manner preparatory to or for the purpose of laying or establishing any railway therein ; and for such other and further relief as to the court shall seem just, together with the costs of this action. 657. To Enjoin a Municipal Corporation from, Giving a Deed of Lands Sold for Non-payment of an Illegal Assessment for Local Improvements, {w) I. That the plaintiff is the owner in fee-simple of {designate his estate, — e. g., thus:'] one undivided seventh part of four lots of land on 25th. and 26th streets, in the sixteenth ward of the city of New York, bounded and described as follows — [descrip- tion] ; the other six-sevenths being owned in fee-simple by the defendants [designating which]. II. That the defendants W. and X. are the owners in fee of (») Following this averment, the (w) This form is supported by Bald- complaint in this case contained various ■win «. City of Buffalo, 39 Barb., 396 ; statements of what the plaintiffs Matthews v. Mayor, &c.-, of N. Y., ] 4 claimed to be the duty of the defend- Abbotts' Pr., 209 ; and is given in the ants, and of the reasons why they Report of the Commissioners of tht should be restrained, which is unneces- Code, p. 105. sary in a complaint under the Code. COMPL'AINTS. 565 To Enjoin Execution of Sale for Assesssment. two lots adjoining the four above described lots ; which said two lots are bounded, taken together, as follows : [description ] III. That the two lots last above described, and the two of the other four lots which front on 26th-street, were sold in one' parcel on the day of j 18 , by the defendants, the mayor, aldermen, and commonalty of the- city of New York, to satisfy two alleged assessments for local improvements, — one for the opening of 26th-street from the Hudson river to the Bloom- ingdale road, and the other for setting curb and gutter in the 8th avenue from 24th-street to 42d-street. lY. That the other two of the first described lots, fronting on 25th-street, were sold in one parcel on tlie said day of , 18 , b}' the said mayor, aldermen, and commonalty, to satisfy two alleged assessments for local improvements,— one for opening 25th-Btreet, and the other for setting the curb and gutter aforesaid. Y. That in the proceedings relative to all the said assess- ments, and in the proceedings to collect the same, both fraud and legal irregularity have been committed. Yl. That the following, among others, are the frauds and legal irregularities committed, in respect to the assessment for opening 26th-street : 1. That the land in the street, to the middle thereof, fronting, on the said lots, belonged to the same owner as the said four lots, which owner was wrongly stated to be one M, N. 2. That the benefit above the damage was assessed at dollars, for the said four lots with two adjoining lots, thus charging the owner with a large sum for taking his own prop- erty. 3. That the petition of the said mayor, aldermen, and com- monalty, and the order of the Supreme Court thereon made, appointing commissioners of estimate and assessment, appointed them for the opening of 26th-street from Hudson river to the Fourth avenue, instead of to the Bloomiiigdale road. Yll. That the following, among others, are the frands and legal irregularities committed in respect to the proceedings to collect all the said assessments : 1. That notices were not left before the advertisement of sale at the residence of the owners or with the tenants on the prop- erty, which property was then occupied. 566 ABBOTTS' FORMS. Actions for Injunctions ; and Interpleader. 2. That the advertisement described the assessment for open- ing 26th-street as confirmed on the day of , 18 ; whereas, if it was ever confirmed, it was confirmed on the day of , 18 . VIII. The plaintiff further alleges, that upon the said sales the property was bid in by the said mayor, aldermen, and com- monalty, who shortly afterwards assigned the said bid for the lots on 26th-street to the defendant W,, and for the lots on 25th- street to the defendant X. ; but that no lease has yet been ex- ecuted, pursuant to the said sale. Wherefore, the plaintiff demands judgment : 1. That the said mayor, aldermen, and commonalty be en- joined from executing or delivering any lease pursuant to the sales above mentioned. 2. That the said assessments, and all proceedings to collect the same, be declared void, and set aside. 3. For the costs of this action. 658. To Restrain Negotiation of Bill or Note. [Allege making of note for specified object, and its failwre^-r- e. g., as in Form 553, ante, 459.] II. That the defendant still retains said note in his possession ; and though, on the day of ,18 , the plaintiff requested him to deliver it up, he refused so to do. Wherefore, the plaintiff demands : 1. That the defendant be enjoined from negotiating, transfer- ring, or enforcing the same. 2. That it be delivered up and cancelled. 3. And for the costs of this action. 659. Complaint on a Note, against Maker and Indorser, ana Seeking to Meaoh Golla,teral Secu/rities held hy Indorser. {ai) I. That on the day of , 18 , at , the defendant [maker'], for the purpose of inducing the plaintiff to sell him certain goods, agreed to give him, in payment therefor, the said defendant's promissory note, indorsed by the defend- ant [indorser] ; and represented to the plaintiff that the said (x) This fonn is from the Meport of the Commimoners of tTie Code, p. 123 COMPLAINTS. 567 To Reach Collateral Securities. Action for Interpleader. [_indorser] would be adequately indemnified, by collateral security, for his indorsement. II. That the plaintiff was thereby induced to sell and deliver to the said ImaJcer] certain goods, of the value of dollars. in. That on the day of , 18 , at , in consideration thereof, the said [malcer], by his promissory note, promised to pay to the order of the said [indorser'] dol lars, months [or, days] after said date. IV. That the said [indorser] indorsed the same to the plain- tiff. V. That on the day of j 18 , the same was presented to the said [maker'] for payment, but was not paid. YI. That due notice thereof was given to said [indorser]. VII. That the same has not yet been paid. VIII. That the said [maJcer], when he procured the said in- dorsement from the said [indorse?'], lodged with him six prom- issory notes, for the aggregate sum of dollars, made by one M. N., and indorsed by the said defendant [maker] a.s security for such indorsement. IX. That the said defendant [m,aker] is endeavoring ro with- draw the said notes from the said [indorser], in order to prevent their application in payment of the demand of plaintiff on the said indorsement. X. That the plaintiff has requested the said [indorse?-] to apply the said notes to the payment of the plaintiff's said claim, but he refuses to do so. Wherefore, the plaintiff demands judgment: 1. For dollars, with interest from the day ol ,18 . 2. That the notes placed in the hands of the said [indorser], as security, be applied to the payment of the said sum. 3. Tliat the defendants be restrained by injunction from disposing of the said notes to any person other than the plain • tiff 660. Interpleader. {?/) I. That before the making of the claims hereafter mentioned (y) This is the form given in the interpleader is allowable under the Report of the Commisgioners of the Code. Pepoon v. "White, 2 Code R., Code. (Form No. 156.) An action for 109 ; Beck v. Stephani, 9 Eow. Pr., 193. 568 ABBOTTS' FORMS. Creditors' Suits. one M. N. deposited with the plaintiff [describe the jprvjperty'] for [safe keeping]. II. That the defendant "W. X. claims the same [under an al- leged assignment thereof to him from the said M. NJ III. That the defendant Y. Z. also claims the same [under an order of the said M. N., transferring the same to him]. lY. That the plaintiff is ignorant of the respective rights of the defendants. Y. That he has no claim upon the said property, and is ready and willing to deliver it to such persons as the court shall direct. YI. That this action is not brought by collusion with either of the defendants. Wherefore, the plaintiff demands judgment: 1. That the defendants be restrained, by injunction, from taking any proceedings against the plaintiff in relation thereto. 2. That they be required to interplead together concerning their claims to the said property. [3. That some person be authorized to receive the said prop- erty pending such litigation.] 4. That upon delivering the same to such [person] the plain- tiff be discharged from all liability to either of the defendants in relation thereto. 5. And that the plaintiff's costs be paid out of the same. Section XXVL COMPLAINTS IN CEEDITOES' SUITS. [A creditor, having recovered judgment, may bring an action against liis debtor to set aside any fraudulent obstructions which exist in the way of the satisfaction of his execution ; so, also, after his execution has been returned unsatisfied, he may bring an action to reach things in action, and other equi- table assets of the debtor, such as cannot be reached by execution. In the former case, the action is in aid of the execution, (a) and the plain- tiff must allege that he has issued execution, (b) In the second class of cases, the action proceeds upon the ground that an (fls) The right to this relief was estab- McCullough ■». Colby (5 Bosw., 477; 4 lished by Hendricks D. Robinson, 2 Id., 603), even where the property is Johns. Ch., 283. real estate. (fi\ This must be done, according to COMPLAINTS. 569 Analysis of the Section. execution proves unavailable, and that the plaintiff is entitled, therefore, to lay hold upon property not leviable, (c) The Code does not take away these remedies ;(d) but it does not authorize the injunction and receiver to be sought in the same action in vi^hich the judgment is recovered, except by the more summary proceeding which it provides supplementary to execution. A creditor at large cannot maintain an action of this nature, (e) The usual form of prayer for relief in bills in chancery was very broad, seeking to enjoin the debtor from interfering with any of his property, and to require him to assign it all to the receiver. But, under the Code, the creditor cannot have a discovery by action : if he would examine the defend- ant generally, and gain a lien on assets which he cannot allege the existence of in the complaint, his remedy now is to take proceedings by order supple- mentary to execution.] 661. Commencement by plaintiff suing also for others 569 663. Upon a justice's judgment 570 663. Against debtor, to reach demands due him from third persons 571 664. To set aside an assignment which is void on its face 574 665. Against the judgment-debtor, his assignee, and a pretended creditor named in the assignment ; — to set aside a general assignment, for fraud extrinsic to the instrument 575 666. Against debtors who transferred their assets to a third person for his note, and assigned the note for benefit of creditors , — seeking to set aside the transaction as fraudulent, and for a receiver 577 667. Against debtor and his trustee, to reach the trust-fund or its income. . 579 668. By an assignee of a judgment, against the judgment-debtor and his mortgagee of personal property, and an assignee to whom, by a fraudulent agreement between them, the debtor's property, including the mortgaged property, had been transferred 580 669. Against judgment-debtor, and one to whom he fraudulently confessed judgment ; — ^to set aside judgment, and a sale thereunder 583 661. Commencement, where the Plaintiff Sues on Behalf of Other Creditors. (/") The plaintiff, complaining on behalf of hinnself and all other (c) This remedy was established here Kern), 488 ; Bishop «. Halsey, 3 Ah- by the case of Hadden ii. Spader, 20 iotts' Pt., 400 ; Cropsey v. McKinney, Johns., 554 ; 5 Johns. Oh., 280. It is 30 Bcvrh., 47. confirmed and regulated as to personal (/) A judgmentcreditor may file a property by the Revised Statutes (2 bill of this nature either in his own Bm. 8tat., 173, §§ 38, 39); and the name and for his own benefit, or he courts proceed upon the same princi- may join with other creditors standing pie, by analogy, in respect to real in the same situation with liimself, or property which cannot be reached by he may file a bill in behalf of himself execution. Congden?).Lee,3.E?(?w.,304. and all others being judgment-credit- {d) Hammond o. Hudson Eiver Iron ors, whose executions have been re- & Machine Co., 20 Ba/rl., 378; Catlin turnedunsatisfied, and who may choose e. Doughty, 13 How. Pr., 457. to come in and contribute to the ex- (e) Keubena v Joel, 13 N. Y. (3 penses of the suit. 3 Barb. Oh. Pr., 570 ABBOTTS' FORMS. Creditors' Suits. judgment-creditors of the defendant [whose executions have been returned unsatisfied, (g) and] who shall in due time come in and seek relief by, and contribute to the expenses of this ac- tion, alleges : 662. Upon a Justice's Judgment. I. That on the day of , 18 , at , before M. N., a justice of the peace in and for the town of , the plaintiff recovered a judgment, which was duly given by said justice, against the defendant for dollars damages and dollars costs, in an action wherein this plaintiff was plaintiff [or, defendant], and the defendant herein was defend- ant [or, plaintiff]. i. II. That on the day of , IS , a transcript of the same was filed and docketed in the office of the clerk of the county of (A) [if the judgm.e7it-debtor resided in another county, add : and on a transcript of the same was filed and docketed in the office of the clerk of the county of J, in which county the defendant then resided [or state ignorance of residence, c&c, as in nextforni], III. That on the day of ,18 , an execution in due form was issued upon the said judgment against the personal and real property of the defendant, to the sherifi" of said [last mentioned] county, in which county the defendant then resided \or allege non-residence : see nextforrn\. [Continue as in other forms.] 154 ; Edmeston v. Lyde, 1 Paige, 637 ; i). Egan, 7 Paige, 610 ; Cooke v. Smith, Wakeman v. Grover, 4 ■/«?., 33; Len- 8 Sandf. Oh., 333. tilhon «. Moffatt, 1 Edw., 451. {h) The docketiag of justices' judg It has been held, that if the frame ments must be averred, unless, per- and prayer of a bill be essentially that haps, where it is averred that the de- of a creditor's bill, the omission of this fendant, neither at the time of issuing usual introductory statement is imma- the execution, nor at the time of filing terial, it being matter of form merely, the bill, had any real estate or chattels O'Kelly «. Bodkin, 2 Ir. £!q. B., 861. real which could have been reached (g) It is only those who might have upon execution. Crippen v. Hudson, 13 filed the bill who can come in. Parmelee if. T. (3 Kern.), 161. COMPLAINTS. 571 Against Debtor, alone. 663. Against Debtor to Reach Demands Due him from Third Persons. I. That at term [or, on the day of ,18 ,(*') at , in the Court in and for the county of ], the plaintiff recovered a judgment, which was duly given {j) by said court against the defendant [and M. N. and O. P.], for dollars, in an action wherein this plaintiff was plaintiff [w, defendant], and the defendant herein was [or, the defendant herein, and said M. IST. and 0. P. were] defendant [or, plain- tiff] ; and that on the same day [or, the day of , 18 ,] said judgment M^as docketed in the office of the clerk of said county [and on the day of , 18 , a transcript thereof was filed, and the judgment docketed in the county of M.] {h) II. That on the day of ,18 , an execution in due form was issued upon the said judgment against the per- sonal and real property of [all said debtors] to the sheriff of said [last-m,entioned^ county, in which county the defendant then resided [or, in which county was the defendant's last known residence within this State, his residence * at tlie time of said execution being unknown to the plaintiff, and not ascertain- able, though the plaintiff made diligent inqnii-y therefor] {I) [or (i) The date should be that at which v. Lyons, 7 Paige, 85. But where, after the judgment was perfected by signing a creditor's bill was filed, the debtor and filing the record, for until then no and a third person gave their note for proceedings can be taken. 3 Rev. btat., the debt, upon which a judgment was 360, § 11. Or it may be alleged as re- obtained against both ; it was held not covered on the day on which the adjudi- a proper case for the filing of an origi- cation was had, inserting here, " and nal bill, upon the last judgment, and thereafter, and on the day of at the same time continuing the first ,18 , the record of said j udg- suit; but complainant should either ment was duly signed and filed." Bag- dismiss the first bill, or file a supple- gott B. Eagleson, Eoffm., 377. mental bill. Winslow v. Pitkin, 1 (_;■) The words "which was duly given" Bmi. Gh., 402. are not necessary in the case of a judg- If the judgment is one which an exe- ment of another court of co-ordinate cution will run into any county of the jurisdiction. Williams v. Hogeboom, State, it is not necessary to aver the 8 Paige, 469. docketing of it in the county of de- (k) If the plaintiff has several judg- fendant's residence, unless the bill ments, state them separately in the shows real property of the defendant same way. situate there. Millard v. Shaw, 4 A second judgment recovered for the Hbic. Fr., 137. same cause does not preclude a credit- (Z) Eeed v. Wheaton, 7 Paige, 663 or's bill on the first judgment. Bates Hope v. Brinckerhoff, 3 Edw., 445. 572 ABBOTTS' FOEMS. Creditors" Suits. say, in which county was the defendant's residence at the time of bringing said action, his residence, continuing as above from the *]. III. That the said execution has been duly returned by said sheriflP wholly unsatisfied (in) [or, unsatisfied, except as to the sum of dollars], and there is now due to the plaintiif on said judgment dollars, and interest from the day of ,18 .{n) IV. That a short time before the commencement of the ac- tion in which the said j udgment was obtained, and after the in- debtedness upon which said judgment was obtained had ac- crued, the said defendant was, and for several years previous thereto had been, engaged in mercantile business at , and, as the plaintiff is informed and believes, various persons be- came indebted to him to a large amount; that, although the ,said defendant about the time of, or soon after, the commence- ment of this action, to wit, about the day of , 18 , did assign and transfer all his stock in trade to one M. IST., yet the said business is still wholly unsettled ; and that the defend- ant had, at the time of the commencement of this action, debts due him to a large amount, {o) to wit, to an amount not less, as plaintiff is informed and believes, than dollars, a con- siderable portion of which are evidenced by charges on his books of account, which the said defendant refuses to produce, or allow to be examined by or on behalf of the plaintiff; and the plaintiff is therefore unable to specify, and cannot learn, and does not know, the particular items or amounts of said in- debtedness, or the names of the several persons from whom the same are due; but is informed and believes that several of them, owing defendant in the aggregate a sura not less than (m) This allegation is essential, both, elapsed before return. Forbes B.Waller, by the previous practice and by the 35 N. Y., 430. statute. It is not enough to aver facts (n) It is usual and proper to state going to show that an execution would the amount still due ; but the old rule be mere matter of form, and useless, arid statute, requiring the value in con- McElwain v. WiQis, 9 Wend., 548 ; 3 troversy to be shown to exceed a cer- Paige, 505. And this rule is unchanged tain amount, are not now in force, by the Code. Crippen o. Hudson, 13 (o) It should be shown that the debts N. Y. (3 Kern), 161. But it is not now due to the defendant are of some value, necessary to show that the sixty days Waldo v. Doane, 3 Oh. Sent. 7. COMPLAINTS. 573 Against one of Several Debtors. dollars, reside at , and are solvent and able to pay the respective demands against them, {p) Where a debtor *Vt the judgment is not made defendant in this action iecause of insolvency or absence, add: V. That said {insolvent or absentee'] is wholly insolvent and destitute of property [w, is not and has not been for the space of , within this State, but resides at , in the State of , and has no property within this State, {q) Where a debtor in the judgment is not made a defendant he- cause he was merely a surety, add : YI. That the said judgment was recovered in an action [de- scribing it, — e. g., ^Atis],— brought to foreclose a mortgage made by the defendant to said [surety'], with a bond collateral thereto, and that said bond and mortgage was assigned to the plain- tiff by the said [surety], who thereupon guaranteed the pay- ment thereof; but the same not being paid, and the mortgaged premises =being sold upon foreclosure in said action for less than the sum due, said judgment was recovered for the deficiency, as to which the said [surety] was merely a surety, and not liable as a principal debtor, and which it was, by a provision in said judgment, directed should be levied of the property of the de- fendant [pi^incipal debtor], if it could be so collected ; and if it could not, then to be levied of the property of said [surety], (?■) Wherefore, the plaintiff demands: ^ 1. That the said defendant be adjudged to apply to the pay- ment of the amount of said judgment and interest thereon, to- gether with the costs of this action, said property, debts, choses in action, and equitable interests belonging to him, or held in {p) A judgment-creditor can only excuse for the non-joinder. Van Cleef entitle himself to the relief which the «. Sickles, 5 Paige, 505. statute provides, by averring in his {r) See Speiglemeyer v. Crawford, 6 bill, and establishing by proofs, that at Paige, 254. A general averment that the time of the filing of the bill, " per- the defendant was primarily liable for sonal property, money, or things in ac- the obligation upon which the judg- tioh," belonging to the debtor, or held ment was recovered, is not enough. in trust for him, were in the possession Strange v. Longley, 8 Barb. Gh., 650. or under the control of the defendant, But was held enough, after stating facts against whom a decree ia sought, to show the relation of suretyship, to Nicholson v. Leavitt, 4 Bandf., 253, aver that the creditor's suit was prose- '271. cuted .for the benefit of the surety. {q) This is a necessary and sufficient Child i). Brace, 4 Paige, 309. 67i ABBOTTS. JfORMS. Creditors' Suits. trust for him, or in which he is in any way or manner bene- ficially interested. 2. That he be enjoined from selling, transferring, or inter- fering with said property, debts, things in action, and equitable interests. 3. That he be prohibited from making an assignment, or confessing any judgment, to enable other creditors or persons to obtain a preference over plaintiff, or to take any portion of defendant's property. 4. That a receiver may be appointed of all said property, equitable interests, things in action, and effects of the said de- fendant, and said defendant directed to execute to him an assignment thereof, and said receiver sell, or otherwise dispose of the same, and convert the same into money, as soon as may be, and that said receiver apply so much of the proceeds there- of as may be necessary for that purpose, to the payment of the plaintiff's said debt, with interest and costs of thi* action. 664. To Set Aside an Assignment which is Void on its Face. I., 11., and III. Allege judgment and issue, and return of exe- cution, as in preceding forms. ' IV. Allege making of assignment, setting it forth or annexing it, as in the following form, I^ to TV., and adding : And the plaintiff alleges and submits that the said instrument of assign- ment is fraudulent and void upon its face; and he alleges that it was made and executed by the said defendant [assignor^ [and accepted by the defendants, assignees'], with the intent to hinder, delay, and defraud the creditors of said [assignor], {s) [Continue as in other forms.] («) The latter of these allegations is The latter allegation is probably suffi- necessary, according to Hogan ». Bur- cient •without the former. Jessup n. nett, 37 Miss. (8 George), 617 ; where it Hulse, 39 Barb., 539. " They are both was held that a bill to set aside a sufficiently definite and certain. It is fraudulent conveyance, must not only not necessary to specify the objection- allege that it was " void on its face able clauses. Hastings v. Thurston, 10 and fraudulent as to creditors ;" but, Abbotts' Pr., 418 ; Jessup v. Hulse, 29 also, that it was made with the intent Barb., 539. to hinder, delay, or defraud creditors. COMPLAIHTS. 575 To Set Aside Assignment Not Void on its Face. 665. Against the Judgment Debtor, his Assignee, and a Pre- tended Creditor named in the Assignment; — to Set Aside a General Assignment, for Fraud Extrinsic to the Inst/rument. I., n., and III. Allege judgment and issue, and retv/rn (t) of execution, as in Form 661, or 662. IV. That after the contracting of the debt on which the afore- said judgment was recovered, the said \^judgment-dehtor'] as- signed all his property to the defendant [assignee'], in trust for the payment of his debts \or, made an assignment, of which a copy is annexed as a part of this complaint], (m) Y. That the said [assignee] accepted the said trust, and has collected a large sum of money and other property from the assets of his assignors, amounting in all to the value of over dollars, {v) VI. ThaJ; the property so assigned is of the value of dollars. VII. That the said assignment was made by the said [judg- ment-debtor'] with the intent to delay, hinder, and defraud his creditors ; (ii)) that it was not accompanied by an immediate and continued change of possession of the property ; that ever {t) If the plaintiflf merely desires to signor as defendant, and seeking to remove the obstruction to his levying have the transfer set aside, should al on tangible property, he need not aver lege that the administrator claimed to a return of the execution. regard the transfer as ftona ^de. Bate {u) Where there is any objection' to v. Graham, 11 N. T. (1 Kern.), 337. the legality of the provisions of the as- {w) In an action to set aside an as- signment, it should be set forth or an- signment for the benefit of creditors, a nexed. mere general allegation that it was (b) The action can be maintained made for the purpose of delaying, hin- without this averment of an acceptance dering, and defrauding creditors, is not of the trust ; for where the assignees sufficiently specific where the fraud is do not claim as such, the plaintiflf still extrinsic to the instrument. Kinder «. has a right to call upon them by ac- Macy, 7 Crd., 306 ; Meeker v. Harris, 19 tion to disclaim all title under it, or Id., 378 ; and see Harris n. Taylor, 15 take the burden of accepting the trusts Id., 348 ; but such an allegation has conferred by it, or of claiming to do been held sufficient on demurrer. Mott so. Gasper v. Bennett, 12 How. Pr., e. Dunn,10£oM. Pr., 235. gQ7 In a suit to set aside a conveyance as A complaint against an assignee in a fraudulent, an allegation that the gran- fraudulent transfer of property made tee is a fictitious person, is not incon- by a deceased person, joining with the sistent. Purkitt v. Polack, 17 Cal. assignee the administrator of his as- 337. 576 ABBOTTS' FORMS. Creditors' Suits. since the same was executed and delivered, and np to the present time, the said property has remained in the actual pos- session and under the control of said \_judgment-dehtor\, wlio has retained possession and control thereof under the false and fraudulent pretence that he is agent of said [assignee\. VIII. That the pretended indebtedness set forth in said as- signment as due from the defendant \ judgment debtor] to the defendant [the ^preferred creditor] is Petitions ; that, in fact, no such indebtedness exists, but that the same is therein inserted for the purpose of enabling the defendant [judgment-delfor] to distribute the proceeds of the goods passed under the assign- ment among his friends, and thereby to keep the possession and control thereof himself. IX. That the defendant [judgment- debtor] has not any prop- erty other than that embraced in the assignment aforesaid, out of which the execution aforesaid could be satisfied in whole or in part ; and that unless the said property can be reached and applied to the payment of said judgment, the same must remain wholly unpaid. Wherefore the plaintiff demands judgment : 1. That said assignment be adjudged fraudulent and void as against the plaintiff [and such other judgment-creditors of said judgment- debtor as shall elect to come in and share the expenses of this action]. 2. That a receiver of all the property and eft'ects of said [judgment-debtor] be appointed. 3. That the defendants be adjudged to account for all the property received by them or either of them under said assign- ment, and for all proceeds arising from sale thereof, and deliver the same to such receiver. 4. That the defendants be, in the mean time, enjoined from disposing of any of said property, or paying away any of the proceeds thereof, or in any wise interfering therewith. 5. That said receiver pay, out of the proceeds of said prop- erty, the judgment aforesaid, and the costs and expenses of this action, and hold the balance subject to the further ordei of this court. COMPLAINTS. 577 To Set Aside Assignments. 666. Against Debtors who Transferred Their Assets to a Third Person for his Note, and Assigned the Note for Benefit of Creditors, — Seeking to Set Aside the Transaction as Fraudvr lent, and for a Receiver. I., II., and III. Allege judgment and issue, and return of exe- cution, as in Form 661 or 662 TV. That on the day of ? 18 , said [judgment- dehtors'] were booksellers at , doing business as partners under the firm-name of Y. Z. & Co. ; and were possessed of [designating assets, — e. g., thus\ — a large stock of books, station- ery, fancy articles, jewelry, and musical publications, a valua- ble lease of their store, No , street, having five years to run, and sundry demands against other persons; but were insolvent and unable to paj'^ their creditors punctually or in full. Y. That on that day, and after the indebtedness for which the plaintiff's judgment was recovered had accrued, the said defendants [judgment-dehtorsi in contemplation of, and with full knowledge of their insolvency, made a pretended sale of their said stock to the defendant [transferee], then a clerk in their employ in their said store, and took in payment therefor his promissory notes having several months to run, but for what exact amounts these plaintiffs do not know and cannot state. VI. That the defendant [cleric] was wholly irresponsible and insolvent, and has no means of paying his said notes, except such moneys as he may derive from the sale of the property transferred to him as aforesaid. VII. That thereafter and on the same day the said [judgment- debtors] executed and delivered to the defendant [assignee] an instrument in writing, of which the following is a copy : [copy assignment y or, say, of which a copy is annexed as a part of this complaint, and annex a copy at the end of the complaint]. VIII. That the property so assigned is of the value of about dollars and upwards. IX. That the said note to the said [clerh], and the said as- signment to [assignee], were intended by each and all of the aforesaid defendants to be one transaction, and were in fact one transaction, and were intended and completed for the purpose Vol. I.— 37 578 ABBOTTS' FOEMS. Creditors' Suits. of delaying, hindering, and defrauding the creditors of said [judgment-debtors], by putting it out of the power of such cred- itors to reach by execution, or other due process of hiw, the stock and assets of the said [^judgment-debtors] ; tliat sucli sale and assignment were not, nor was either of them, foUowe.d by im- mediate and continued change of possession ; that ever since the said sale was made, and since said assignment was delivered, and up to the present time, the said property has i-emained in the actual possession and under the control of the said [judg- ment-debtors], who have retained possession and control thereof under the false and fraudulent pretence that they are agents of said [clerh]. [X. That said assignment is fraudulent and void upon its face.J XI. That the defendants [judgment-debtors] have not, nor has either of them, any pi'operty other than that embraced in the sale and assignment aforesaid, out of which the execution afore- said could be satisfied in whole or in part, and that unless the said property can be reached and applied to the payment of said judgment, the same must remain wholly unpaid. Wherefore these plaintiffs demand judgment : 1. That the said sale by the defendants [judgment-debtors] to the said [cleric], and said assignment by tiie defendants [judg- ment debtors] to the defendant [assignee], may each be declared fraudulent and void as against these plaintiffs. 2. That a receiver of all the property and effects of the said [judgment-debtors], or either of them, which they or either of them had at the time of the said sale to the defendant [clerk], or at any time thereafter, be appointed. 3. That the defendants, and each of them, be adjudged to ac- count for all the property received by them^ or either of them, under either the sale or assignment aforesaid, and for all pro- ceeds arising from the sale thereof, and deliver the same to such receiver. 4. That the defendants, and each of them, be in the mean time enjoined from disposing of any of said property, or paying away any of the proceeds thereof, or in any wise interfering therewith. 6. That the sai 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, containing, for example, the following description of premises conveyed .' All that certain lot, &c., beginning at a point, &c., running thence easterly along A-street. feet, tlicnce south- erly along B-street feet, thence westerly and parallel to C-street feet, and thence southerly and parallel tg D- Btreet feet to- the place of beginning.] {e) II. That the descrijition therein given of the premises intend- ed to be conveyed thereby was erroneous, and in fact does not describe any premises whatever; that the word "southerly," as last used in said description, was inserted by mistake of the parties to said deed [or otherwise ; and if fraud is relied on, the circumstances of it should he specially stated] instead of the word "northerly," which should have been used instead there- of; and that in order to make said deed pass any premises whatever to this plaintiff, and to make it conform to the actual intentions of the parties, it is necessary that the said desciiption should be amended by substituting the word " northerly" for the word " southerly," where the latter word is last used therein {or say, amended so as to read as follows, and insert description in full as amended]. III. That the plaintiff has paid to the defendant for the said premises the consideration expressed in said deed. Wherefore, this plaintiff demands judgment that said deed be reformed as aforesaid, and for the costs of this action. (d) For the allegations of a complaint ment, in whicli the plaintiff alleges a seeking to reform a mortgage on the mistake to exist, if he would seek a ground of fraud, and for foreclosure as reformation of the instrument, he reformed, see DePeyster v. Hasbrouck, should state distinctly the facts en- 11 N. T. (1 Kern.), 582. titling lim to such relief. Lamoreux («) In an action on a written instru- v. Atlantic Ins. Co., 3 Duer, 680. COMPLAINTS. 587 To Rescind Contracts. 672. To Remove a Mortgage whioh is a Cloud upon Title. I. That the plaintiff is the owner in fee-simple (/) of the fol- lowing desci'ibed premises, situated in [description]. II. [Allege the making of the mortgage, or other apparent lien, stating facts which shoio that on its face it appears valid, and that in fact it is void. See other forms.] III. That said mortgage was, on the day of ' , 18 , duly recorded in the office of the clerk [or, register] of . eaid county, in Book of Mortgages, p. , and still re- mains unsatisfied of record, and a cloud upon the plaintiff's title. Wherefore, the plaintiff demands judgment that the defend- ant give up said mortgage to be cancelled, and that the sonic be satisfied of record ; and for the. costs of this action. 673. i^ r Rescission of a Contract and Repayment of Advances, on the ground of Mistake, (g) I. That the plaintiff^, on the day of , 18 , bai-- gained with the defendant to buy of the defendant a piece of ground at [briefly designating it], M'hicii was chiefly valuable for the purpose of dividing into city lots, and pur- chased by the plaintiff for that purpose, as defendant well kn§w. II. That the defendant, well knowing said premises to contain a much less quantity than acres of land, — viz., acres only, — then and there falsely and fraudulently represented to him that the premises contained aci'es ; and falsely {/) In an action to remove a cloud on a fair construction of the pleading, upon title, the complaint need not aver the facts are distinctly shown. Wil- the source of plaintiff's title. Averring liams «. Ayrault, 31 Bar6., 364. that he is owner is sufficient (Lash v. Title in fee is not necessary ; a lim- Perry, 19 Ind. (Kerr.), 333), without ited or an equitable estate may be averring that he is in possession. Don- alleged instead. Craft v. Merrill, 14 nelly v. Simmonton, 7 Minn., 167. I^. Y. (4 Kern.), 456 ; Lounsbury v. A complaint is not fatally defective Purdy, 18 If. Y., 515. which does not in terms allege that (g) This form is sustained by Bel plaintiff has title, and that the instru- knap v. Sealey, 14 iV. Y. (4 Kern.), 143 ; ment he seeks to cancel is a cloud, if, 8 Duer, 570. 588 ABBOTTS' FORMS. Actions for Equitable Belief against Fraud or Mistake. and fraudulently induced him to buy the said premises for dollars. III. That plaintiff, relying on said representations, agreed to buy the premises, and paid defendant dollars, part of the purchase-money. lY. That the premises did not contain acres, but only acres; whereby the plaintiff was deprived of all the ben- efit and advantage which he otherwise would have derived from the said sale. V. That on or about the day of , 18 , 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. Wherefore, the plaintiff demands judgment: 1. For dollars, with interest from the day of ,18 . 2. That the said agreement of purchase be delivered up and cancelled. 3. Fo;- the costs of this action. 674. To Correct an Account Stated. I. That the plaintiff and defendant, having had mutual deal- ings, afterwards, on the day of > 18 , cam.e to a mutual accounting, upon which a statement of the said account was made in writing, of which a copy is annexed as a part of this complaint, whereby a balance of dollars was found to be due from the plaintiff to the defendant [or, from the defendant to the plaintiff] on final adjustment. II. That since the said statement of account the plaintiff has discovered errors and false charges [or, credits, or hotfil therein, of which he was wholly ignorant at the time of such settlement. III. That in the statement of said account so settled he is charged [here state tlie itefus wron^ully charged^ and show what is the error']. lY. That the following items, which ought to have been entered to his credit in said account, were wholly omitted there- from, by mistake and oversight, to wit: [here set forth the items, with date, amount, cfcc] Y. That the. following items are erroneous in amount, in this* COMPLATNTS. 589 For Correction of Account Stated. that the credit for should have been of dollars, instead of only dollars [stating hriejly the grounds why it should have heen more\. YI. That tlie said account ought to be corrected as above mentioned ; and the balance thereon ought to be dollars in favor of the [plaintiff], instead of being dollars in favor of the [defendant]. VII. That as soon as the plaintiff discovered the said mistakes and errors, he called on the defendant, on the day of ,18 , and pointed the same out to him, and then re- quested the defendant to correct the same, and to restate the said account, with the mistakes and errors aforesaid corrected ; but the defendant refused to do so, or to pay the plaintiff any part of said sum of dollars, due to him at the time said account was stated [or, and to accept the sum of dollars from the plaintiff in full payment of said account]. Wherefore, the plaintiff asks : 1. That he may be let in to prove the said eri'ors and mis- takes in the stating of the said account. 2. That judgment may be rendered against the defendant for the balance of dollars, due him on said corrected accoimt, with interest thereon from the day of , 18 . Together with costs of this action. Section XXVIII. COMPLAINTS IN ACTIONS FOK SPECIFIC PERFOEMANCE, OR TO ENFORCE VENDOR'S LIEN. I. Specific pekfohmancb. 675. Vendor against purcliaser p. 590 676. Purchaser against vendor; — claiming interest on purcliase- money which has lain idle, and deduction for deficiency and for outstanding incumbrance 591 677. On an exchange, the parties having taken possession 594 678. By creditor, for performance of agreement to give a chattel- mortgage 505 II. Vendok's lien. 079. By vefldor against purchaser, and Ms grantee and judgment- creditors, — to enforce lien for purchase-money 595 590 ABBOTTS' FORMS. Actions for Specific Performance. I. Spkcific Pbefoemance. 676. Vendor against Purchaser, {a) I. That on and before the day of > 18 , the plaintiff was, and still is, the owner in fee \or otherwise'] and possessed of certain real property hereinafter described. II. Tliat the defendant, being desirous to purchase the same, entei'ed into an agreement in writing with the plaintiff, (J) dated on that day, of which the following is a copy : (c) [copy of con- tract, giving a description of the property.] {d) [III. That the defendant then paid to the plaintiff' dollars as a deposit, and in part of the purchase-money men- tioned therein.] lY. That the plaintiff has always been, and still is, ready and willing to perform the agreement on his part; and, on being paid the remainder of said purchase-money [with inter- est], to convey [c&c, as hy the agreement], and to let the defend- ant into possession of said premises, and the rents and profits thereof, from the time in the agreement specified, (e) (a) A claim for a specific performance agreement as it ought to have been of a contract to convey land, and for reduced to writing, but ha should also payment of a reasonable sum for its use state the substance of the written agree- while in possession under the contract, ment, and must show wherein it differs constitutes one cause of action. Spier from the one actually made. Coles ®. V. Eobinson, 9 Hoio. Pr., 325. Bowne, 10 Paige, 526. (6) If the contract be alleged to be (d) The complaint in an action for in writing, it is not necessary to allege specific performance should supply the it to be signed by the party, but it will details necessary to guide in drawing be presumed to be so signed. Stor. a judgment directing a conveyance ; Eq. PI., 262, § 353. but it is not bad on demurrer if it fails Execution by the plaintiff is not to do bo. Richards v. Edick, 17 Barb., essential. Clason ». Bailey, 14 Johns., 260. 484 ; Worrall ii. Munn, 5 N. T. (1 (e) Specific performance may be de- Seld.), 229. creed, with costs, though the complain- . For the proper allegations to state a ant's title was not perfect when the bill sale at auction, see Form 471, ante, was filed, if it appear before decree or p. 383. report that it can be perfected. The (c) If the written agreement does not delay is compensated by charging the in fact contain the true agreement be- complainant with interest. Clute «. tween the parties, and the plaintiff Robison, 2 Johns., 595 ; Pierce s. Nich- wishes to introduce parol proof to cor- ols, 1 Paige, 244 ; Brown v. Haff, 5 Id., rect it, he should not merely state the 335 ; Reformed Dutch Church ». Mott, COMPLAINTS. 591 Purchaser against Vendor. V. That on the day of ", 18 , at , tlie plaintiff duly tendered to the defendant a deed of the prem- ises, (/") pursuant to the agreement; but the defendant, then and ever since, has refused to accept the same and to pay the balance of the purchase-money [or, and to give the bond and mortgage agreed foi', or otherwise, according to the contraat\. Wherefore, the plaintiff demands judgment that the defend- ant perform said agreement, and pay to the plaintiff dol- lars, the remainder of said purchase-money, with interest fi'om the day of , 18 , the time •when it ought to have been pa.id [or, and give to the plaintiff the bond and mortgage, &C.J ; and for the costs of this action. [3. That if the defendant will not accept the conveyance, and pay said purchase-money, then the premises be sold, and the proceeds be applied to the payment of the same, with the costs of this action ; and that the defendant be required to pay the deficiency, if any.] (g) 676. Purchaser against Vendor ; — Claiming Interest on 'Pur- chase-money which has Lain Idle, and Deduction for De- ficiency and for Outstanding Incumbrance. I. That on the day of > 18 , tlie defendant being owner in fee \or otherwise'] and possessed of certain real property hereinafter described, and desirous to dispose of the same, (A) made [by one M. N., his agent, dtily autiiorized there- 7 Id., 77 ; Viele v. Troy & Boston K. R. sufficient. AUerton «. Johnson, 3 Co., 21 Barh., 381 ; affirmed, 20 N. T., Sandf. Oh., 72. Compare Tucker «. 184 ; Cleveland v. Burrill, 35 Bwrh., Clarke, 2 Id., 96. 633. Where the vendor retains the legal (/) In an action by a vendor for title as a lien for his security for un- specific performance, no previous ten- paid purchase-money, and subsequently der of a deed is necessary where the dies v^ithout comjjleting the contract, purchaser has abandoned possession the complaint, in an action by the pur- and given notice of his refusal to per- chaser against the heirs for specific per- form. Crary v. Smith, 3 N. Y. (3 formance, need not allege that the ven- flomst), 60. dor died seized of the property in {g) This clause is not essential. question, or that the title to the prem- (A) It is usual to aver that defendant ises is vested in the defendants by de- was owner at the time of the contract, scent or otherwise. Moore v. Burrows, but an averment of ownership at the 34 Barb., 1 73. time of bringing the action would be ' 592 ABBOTTS' FORMS. Actions for Specific Performance. to] an agreement in writing with the plaintiff, of which the fol- lowing is a copy: [copy of the agreement.'] [II. That on the execution thereof the plaintiff paid to the defendant • dollars as a deposit, and in part of the pnr- chase-monej therein mentioned.] • [III. That afterwards, by mutual agreement between the plaintiff and the defendant, the time for completing said con- tract was extended to the day of , 18 .] lY. That the plaintiff [duly performed all the conditions thereof on his part, and] has always laeen ready and willing, and still is, to fulfil the agreement on his part ; and, on having a good and marketable title made of said premises, and a con- veyance' of tlie fee thereof, free from all. incumbrances [w otherwise, according to the contract], to pay the residue of the purchase-money to the defendant [and to give the bond and mortgage agreed for]. y. That on the day last mentioned, at , the plaintiff duly tendered to the defendant said sum, and requested such a conveyance (t) [and offered to give the bond and mortgage agreed for, on receiving the same] ; but the defendant refused, and still refuses, to execute or deliver such conveyance. [Where purchase-money lay idle.] VI. That dollars, the residue of said purchase-money, has been ready and unproduc- tive in the hands of the plaintiff, for completing the purchase, ever since the said day on which it ought to have been com- pleted. [ Where there is a di'ficiency.] VII. That since the making of said agreement tlie plaintiff has discovered that there is a deficiency in the quantity {j) of said , and that the same does not contain acres, but only acres. (Jc) [ Where a claim of a right of way proved unfounded.] VIII. That at the time of treating for said contract said [defendant or agent] represented to the plaintiff that there belonged to the said estate a right of way from the said estate to street, and that the said [defendant] could make a good title in fee to (i) A request is not essential to be aries, according to tlie fact. See Voor- avenceareven in an agreement to con- hees v. De Meyer,^3 Barb., 37. vey on request. Bruce v. Tilson, 25 {k) This and tlie next succeeding al- N. T., 194. legation are supported by Whitw. Lq. (J) Or state mistake in the bound- Pr., 235. COMPLAINTS. 593 Claim for Reduction on Price. the said right of way, which said right of way rendered the said estate very convenient for the business which the plaintiff intended to carry on upon the said premises; and that before the agreement of the said day of ? 18 , was signed, a certain plan made for the purpose of showing how buildings might be erected on the said estate, was shown to the plaintiff by the said {defendant or agent], and upon that building-plan the said right of way was delineated ; and by the said building-plan, and the representations of the said [defend- ant or Offent], the plaintiff was led to expect that he should have a right of way directly from the said estate to street, and the expectation of having such right of way was a great indv^ce- ment to the plaintiff to purchase the said estate, and when the said agreement was signed, the said building-plan was delivered to the plaintiff, and the same is now in the plaintiff's possession ; but since the signing of the said agreement one [an adverse daimani] has claimed to be exclusively entitled to the said right of way, and she brought an action in the Court for the recovery of the possession thereof, and in that action she obtained a verdict, and she has recovered possession of the said road or way from the said estate to street, and she has since sold the same, and that the plaintiff' is now prohibited from using the said road or way; and that the plaintiff, in- the expectation that he should have a good title made to the said estate, entered into the possession thereof soon after signing the said agreement, and has ever since been, and now is, in posses- sion thereof, and has, at a great expense, — to wit, dollars, — purchased a piece of ground, and made a road from the es- tate to street. [ Where there is an outstanding inoumbranoe.] IX. That the defendant's title to the premises is incumbered by a mortgage to one M. N. for dollai-s, with interest semi-annually, which mortgage is not payable until the day of , 18 . Wherefore, the plaintiff demands judgment : 1. That a just deduction from the purchase-money be made on account of said deficiency, and on account of the plaintiff not having the benefit of said right of way, and on account of said incumbrance, and for interest on plaintiff's purchase-money which has lain idle; and that on payment of the residue of said Vol. I.— 38 594 ABBOTTS' POEMS. Actions for Specific Performance. purchase-money [and on the delivery of such bond and mort- gage] tlie defendant specifically perform said agreement. 2, That if he cannot make good title he pay to the plaintiff dollars, his said deposit, interest, and expenses, made and incurred under said agreement. 3. For the costs of this action. 677. On an Exchange, the Parties Ha/omg Taken Possession. I. That on the day of j 18 , the plaintiff and the defendant entered into an agreement in writing, dated that day, whereby, in consideration (Z) of the covenants on the part of the plaintiff hereinafter mentioned, the defendant covenanted that he would, on or before the day of , 18 , con- vey to the plaintiff in fee by warranty deed, and with covenants for quiet enjoyment and against incumbrances \or otherwise, according to the agreement], a lot of land, situate in the town of , and county of , in the State of , and described as follows: [description of pi'emlsei.'] In considera- tion whereof, the plaintiff covenanted in and by said agreement [state his covenant in same manner]. And it was further pro- vided in said agreement that each party might enter into im- mediate possession of the premises so to be conveyed t6 him, and have and receive the profits to his own use. II. That thereafter, in pursuance of said agreement, the plaintiff and the defendant respectively took possession of the premises so to be conveyed to them, and still severally occupy the same. , III. That the plaintiff duly performed all the conditions ot said contract on his part, and, on the day of , 18 , tendered to the defendant a warranty deed of said premises in , with covenants for quiet enjoyment and against incum- brances, duly signed and sealed by the plaintiff, and demanded of him a deed of said premises in ; but the defendant refused to execute and deliver such to the plaintiff, and still neglects so to do. Wherefore, the plaintiff demands judgment that the defend- (f) Voluntary covenants are not specifically enforced. Hayes ». Kerahow, ] Sandf. Oh., 258. COMPLAINTS. 595 To Enforce Vendor's Lien. ant convey to the plaintiff said lot in , pursuant to tiie contract ; and for the costs of this action. 678. By Creditor, for Performance of Agreement to Give a Chattel Mortgage, {ni) I. Tliat on the day of , 18 , the plaintiff and the defendant entered into an agreement whereby the plaintiff, then being the owner of [designate the goods], situate in the house No. , in street, agreed to sell and deliver the same to the defendant; in consideration whereof, the defendant promised to pay him dollars cash upon the delivery of said [goods'], and dollars, months from the date of said delivery, and to give on the delivery of such [goods] a chattel mortgage thereon to the plaintiff to secure the payment of said dollars. II. That pursuant to said contract the plaintiff, on the day of ) 18 , delivered said [goods] to the defendant, who is now in possession thereof, and who paid him the sum of dollars, but failed to deliver to him a chattel mortgage thereon, pursuant to said agreement ; and although afterwards, on the day o-f , 18 , requested to deliver sucli chattel mortgage to plaintiff, he refused so to do. Wherefore, the plaintiff demands judgment that the defend- ant execute and deliver to the plaintiff' a chattel mortgage on said [goods], pursuant to said contract; and for the costs of this action, II. Vendor's Lien. 679. £y Vendor against Pwrchaser, and his Orantee am,d Judgment-creditors I — to Enforce Lien for Purchase-mon- ey, {n) I. That the plaintiff, being owner in fee [or otherwise] of the I'eal property hereinafter described, did, on'the day of , 18 , sell the same to the defendant [naming pur- chaser] for the sum of dollars, and thereupon by his deed conveyed the same to the defendant [in fee], which prera- (m) This form is sustained by St. («) This form is, in substance, from John V. Griffith, 3 Abbotts' Pr., 198. Nash's PI. <& Pr., 353. 596 ABBOTTS' FORMS. Actions for Specific Performance. ises are [bounded and] described as follows : \_full description, ' as in deed]. II. That the said [purchaser] has paid the plaintiff dollars, part of said purchase-money [and state what security, if any, was given for the rest, — e. g., thus:] and on the day of , 18 , gave to the plaintiff his promissory note for dollars, the residue thereof, payable on the day of , 18 ; but that no part [of said note or] of the residue of said purchase-money has been paid, though, on the day of , the plaintiff duly demanded the same of said [purchaser]. III. That the said [purchaser's grantee] purchased of the said [purchaser] a portion of said premises, with the full knowledge that the said [purchaser] had not paid the balance of said pur- chase-mone}', and took a conveyance from the said [purchaser] to him for the said premises so by him purchased of the said [purchaser]. lY. That the said [judgment- creditor] claims to have recov- ered judgment against the said [purchaser] for about dollars, on the day of j 18 , in the court, and lias caused execution to he issued thereon, and is proceed- ing to sell the part of said premises not sold to the said [pur- chaser's grantee] ; whereby the said plaintiff will wholly lose the balance of the said purchase-money, as the said [purchaser'] is wholly insolvent, and unable to pay the same. Wherefore, the plaintiff demands judgment : 1. Against the said [purchaser] for the said sum of dollars, together with interest thereon from the day of ) 18 , and the costs of this action. 2. That in case the said [purchaser] s-hall not pay the said judgment hy a short day to be named, 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. COMPLAINTS. 597 Analysis ot Section. Section XXIX. COMPLAINTS IN ACTIONS FOE FOEECLOSUEE. (a) 680. Mortgagee against mortgagor and junior incumbrancers ; — to foreclose upon default in interest clause, adding claim for insurance premium paid by mortgagee, and for outstanding judgment p. 597 681. Assignee of mortgagee, against mortgagor, — mortgagee wbo on assign- ing guaranteed payment, — grantee of equity of redemption, who as- sumed the mortgage, — and junior incumbrancers 600 683. Allegation of inadequacy of security, and demand for receiver of rents and profits 601 683. Mortgagee in possession, against parties entitled to redeem ; — seeking an accounting and payment, or strict foreclosure 601 684. Short form, on a note and mortgage G03 680. Mortgagee against Mortgagor and Junior Incumbrancers; — to Foreclose upon Default in Interest Clause, Adding Claim for Insurance Premium paid hy Mortgagee, and for Out- standing Judgment. I. That on the day of , 18 , the defendant [mortgagor'] made his bond to the plaintiff (5) under seal, and dated on that day, conditioned to pay to the plaintiif dol- lars on [stating condition of bond] ; and thereupon he [together with the defendant, naming his wife] duly made and acknowl- eged ip) his [or, their] mortgage to the plaintiflF, of even date tiierewith, as collateral, to secure the payment of said bond, a copy of which is annexed as a part of' this complaint {d) [or (a) As to the action by one who (c.) We deem this allegation sufficient stands in the position of surety for the as to a married woman's deed. Roy ®. mortgage debt to compel payment or a Bremond, 23 Texas, 636 ; Kays v. Pho. foreclosure, see Marsh v. Pike, 10 Ian, 19 Oal., 128. But compare Johns- Paige, 595 ; Lawrence v. Lawrence, 3 ton v. Taylor, 15 Abhotta' Pr., 369. Ba/rb. Oh., 71 ; Cornell «. Prescott, 3 (d) In Indiana, the mortgage, &c., 5ar6.,16 ; HoagB. Eathbun, CterA», 13; must be, made part of the complaint. Vanderkemp f>. Shelton, 11 Paige, 38. Hiatt v. Goblt, 18 InH. {Eerr.), 494. (6) The indebtedness for which the In California, the complaint in a fore- mortgage was given need not be set closure action, as distinguished from forth. Day v. Perkins, 3 Sandf. Gh., ai action to recover lands, may refer 359. It would be otherwise where the to a copy of the mortgage annexed, for mortgage was to secure an uncertain a description of the land. Emeric v. amount, — e. g., future advances, or a Tams, 6 Cal., 155. contingent liability. As to variance between the pleading 598 ABBOTTS' FORMS. Actions for Foreclosure. allege its legal effect as follows: and that by said mortgage he. or, they] granted, bargained, and sold to the plaintiff, his heirs and assigns, the following described premises : \insert descrip- tion of premises from mortgage], which conveyance was never- theless upon the condition that [state condition of mortgage, with interest and insurance clauses]. II. That said mortgage was duly acknowledged, and on the day of , 18 , duly recorded in the office of the clerk of county, in Book of Mortgages, page . (e) III. That the interest on said bond and mortgage, which be- came payable on the day of ,18 , is still due and unpaid ; that more than days have elapsed since said in- terest became dne and payable, and the plaintiff elects to deem the whole principal sum to be immediately due and payable ; and there is now justly due to him on said bond and mortgage dollars, with interest from the day of , 18 , at per cent, per annum. (/") [ Where plaintiff' has paid insurance, c&c] IV. That the de- fendant [mortgagor] did not keep the premises insured [stating breach of the insurance covenant, — e. g., thus], — but wholly neglected so to do [or, but on the contrary 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 , 18 , and paid therefor the premium of dollars. and tlie mortgage, see Sears v. Barnum, purcliased. Peru Bridge Co. ». Hend Olwrke, 139. ricks, 18 Ind. (Kerr.), 11. («) As against tlie mortgagor, this al- (/) A mortgage payable generally legation Is immaterial and unnecesssiry ; may be foreclosed at once, and without and an answer, taking issue only upon any demand of the debt. Gillett v. it, is frivolous. St. Mark's Fire Ins. Balcom, 6 Barb., 870. Co. i). Harris, 13 Sow). Pr., 95. Acorn- Even where there is no place ap- plaint in foreclosure against the mort- pointed, in a bond or mortgage, at ^gor alone, need not aver acknowl- which the principal or interest is to be edgment or record (except in the case paid, a demand is not necessary before of a married woman), nor that the suit brought. Harris ». Mulock, 9 mortgagor has not conveyed. Perdue fibio. Pr., 403. The English practice V. Aldridge, 19 Ind. (Kerr.), 290 ; Culph seems to be different. WJdtw. Eg. V. Philips, 17 Id., 309. Pree., 395, note 7. In foreclosure against a subsequent A guarantor or surety of a mortga,ge purchaser, the complaint should allege is not entitled to notice or demand, be- that tliB mortgage was recorded, or fore making him a party to a foreclosure, that defendant had notice when he Rushmore i). Miller, 4 Edw., 84. COMPLAINTS. 599 Mortgagee against Mortgagor. [V. That no proceedings have been had, at law or otherwise, for the recovery of said moneys, or any part thereof [except that heretofore the plaintiff commenced an action in this court against the defendant to recover on a promissory note for dollars, which formed a part of the indebtedness for which said bond and mortgage was given, and on the day of , 38 , judgment of nonsuit was given against the plaintiff on the ground that the mortgage merged the note.] {g) [Where plaintiff holds other liens.] VI. That on the day of , 18 , at , in the Court of [or, before M. N., a justice of the peace in and for the town of ], the plaintiff recovered a judgment, which was duly given by said court [or, justice] against the defendant, 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 , 18 , duly docketed in the office of the clerk of said count}', so as to become, and still re- mains, a lien on the mortgaged premises. (A) VII. That the defendants [subsequent incumbrancers] have or claim some interest in, or lien on, said mortgaged premises, accrued since the lieu of said mortgage, {i) (g) Under the former procedure, if close the mortgage. Wheeler ». Van proceedings had been had^ the com- Kuren, 1 Barb. Gh., 490 ; Tower v. plaint should show that the remedy at White, 10 Paige, 395. Perhaps, how- law had been exhausted, and with what ever, it is not necessary to do so. Field effect. Shufelt v. Shufelt, 9 Paige, 137 ; «. Hawxhurst, 9 Sow. Pr., 75. Lovett «. German Eeformed Church, (i) This allegation is suflBcient against 12 Ba/rb., 67 ; but proceedings at law defendants who claim subsequent to were not necessarily a bar to the fore- the plaintiff's mortgage. What those closure. Williamson v. Champlin, 8 rights are, is only important in a con- Paige, 70 ; Suydam v. Bartle, 9 Id., test as to the surj^lus. Lewis v. Smith, 294. 9 JSr. Y. (5 8eld>i, 503 ; Drury t>. Clark, An allegation on this point was re- 16 How. Pr., 424. But a decree against quired by 2 Bev. Stat., 191, § 155 ; and defendants, made parties under such is usual still, but under the Code it is general allegations, does not bar rights not necessary ; if there have been any which are paramount to the title of proceedings, they are to be set up in both mortgagor and mortgagee. Lewis defence. Newton i). Newton, 12 Ind., «. Smith, 9 If. T. (5 Seld.), 503 ; 11 527. Barb., 153. {h) Where the plaintiff has also other If there are incumbrancers which liens subsequent in date to the mort- the plaintiff insists are subsequent to gage, it is proper to make a claim for his mortgage, but who claim to have a - payment of thom, in his bill to fore- prior equity,— «. g., where tlie plaintiff GOO ABBOTTS' FORMS. Actions for Foreclosure. Wherefore, the plaintiif demands judgment : 1. That each of the defendants, and all persons claiming under them, or either of them, subsequent to the commence- ment of this action, may be foreclosed of all equity of redemp- tion or other interest in said mortgaged premises. 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 monej^s 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 80 applicable thereto. 681. Assignee of Mortgagee, against Mortgagor, — Mortgagee who, on Assigning, Guaranteed Payment, — Orantee of Equity of Redemption, wlio Assumed the Mortgage, — and Junior Incumbrancers. I. and II. As in preceding form, substituting the mortgagee'' s name for the words " the plaintiff." III. That on the day of , 18 , the defendant [mortgagee'], by an instrument in writing under his hand and seal, duly assigned said bond and mortgage to the plaintiff for value, and thereby [and for a consideration expressed therein] guaranteed to the plaintiff the payment of said bond and mort- gage [or; which assignment contained a covenant, of which the following is a copy, setting it forth]. IV. That on the day of 5 18 , the defendants, [mortgagor] and [his grantee], entered into an indenture under their hands and seals, whereby the said [mortgagor] conveyed to said [grantee] the mortgaged premises, subject to said mort- gage, and said [grantee] covenanted that he would pay off and daims to have become mortgagee in If there are infant defendants, the good faith without notice of a prior complaint must state what their in- claim, — the facts must be specially sta- terest is, and whether it is paramount ted. Potter t. CrandaU, Glarke,, 119 ; or subordinate to the interest mort- , Bank of Orleans b. Flagg, 3 Barb. Ch., gaged. Aldrich v. Lapham, 6 Bow. 316. Pr., 129. COMPLAINTS. . COl Demand for Receiver. Action for Payment or Strict Foreclosure. discharge the same as a part of the consideration of said con- vej'ance [or otherwise, as the covenant wasl. Or, where the conveyance subject to the mortgage was not signed hy the grantee, IV. That on the day of , 18 , the defendant {mortgagor'], by deed dated on that day, duly conveyed said premises, subject to said mortgage, [j) to the defendant [ow7ier of equity of redemptiorC] ; Avhich deed contained a covenant on the part of the latter, of which the fol- lowing is a copy : [co^y of covenant to assume mortgage.] And said conveyance thereupon was accepted by said \grantee\. Continue as in Receding form. 682. Allegation of Inadequacy of Security, and Demand for Heceiver of Itents and Profits. Insert in either preceding form : That the mortgaged premises consist of \hriefly stating situa- tion, — e. g.,] a single village lot, with a house thereon, which is old and out of repair, and rapidly deteriorating; and the pres- ent value of the premises is about dollars, and they are subject to a prior mortgage, on which about dollars is due. That they are a scanty and insufiScient security for the plaintiff's mortgage debt, {Jc) and the defendants, who are per- sonally liable therefor, are insolvent. And insert in the prayer for relief: Tiiat a receiver of the rents and profits be appointed, by order of the court, to apply the same to the plaintiff's demand. 683. By Mortgagee in Possession, against Parties Entitled to Redeem ; — Seeking an Accounting, and Payment, or Strict Foreclosure. (Z) \_Allege mortgage, default, (&c., as in preceding forms.] (J) Even where the grantee did not (k) The allegation should be, that the assume the mortgage, but merely took premises are an inadequate security for subject to it, it may be -well to allege plaintiff's demand. An allegation that that his grant vras expressed to be sub- they are not sufficient "for all just in- ject to the mortgage, to preclude him cumbrances," was held not enough from interposing an allegation of usury. Warner v. Gouverneur, 1 Barb., 36. See Hetfield v. Newton, 3 Sandf. Ch., (l) This form is from 3 Van Santv. 564 Uq- Pr., 538, a^p. 602 ABBOTTS' FORMS. Actions for Foreclosure. III. That after the mortgage debt became due as aforesaid, the plaintiff entered into possession of the mortgaged premises, and the receipt of the rents and profits thereof, and has since con- tinued, and still is, in possession. IV That the said rents and profits have not been sufficient in amount to equal the annual interest upon the said bond and mortgage [or state otherwise, as the fact may ie']. V. That the plaintiff has laid out considerable expenditures for permanent improvements upon said premises, to wit: [stating the general nature and value of same], which he claims should be allowed him as an offset against so much of said rents and profits. And has also paid the sum of dollars for taxes and assessments [or, if any prior lien has heen discharged, state the nature of the lien, amount, and time of payment of same] ; all of which sums the said plaintiff also claims should be allowed hitn, and credited on his account against so much of said rents and profits ; which several sums, when so applied and credited to the said plaintiff, charging the plaintiff with the amount of rents and profits so received by him, will leave re- maining due to said plaintiff, on his said bond and mortgage, about dollars. VI. That the defendant [junior incumbrancer] has, or claims, an interest in said mortgaged premises, under and by virtue of a moi-tgage thei'eon from the said defendant \m.ortga^or] subse- quent to the mortgage of the plaintiff; and the defendant has, or claims, an interest therein, &c., &c. [setting forth generally the interests of the respective parties]. VII. That the plaintiff has applied to the said defendants [junior incumbrancers], and requested tliem to pay the plaintiff the said sum so due on the bond and mortgage held by the plaintiff, or come to an accounting with him thereon for the said rents and profits [permanent improvements and advances], and, after the proper charges and credits, pay the said plaintiff what should appear to be due him on his said bond and mort- gage ; or, in default thereof, to release their right and equity of redemption in said mortgaged premises. But the said de- fendants have hitherto refused, and still refuse so to do, or to comply with any part of said plaintifl''s request. Wherefore, the plaintiff demands judgment : 1. That an account may be taken of what, if any thing, is due COMPLAINTS. 603 Short Form, on Note and Mortgage. and owing to the plaintiff for principal and interest on his said bond and mortgage ; and that an account may also be taken of the rents and profits of tlie said mortgaged premises which have been received by said plaintiff, and also of the expenditures of the said plaintiff for permanent improvements, and for taxes and assessments [or, for the amount so paid for prior incum- brances, c&o.f as the case may be]. 2. That the said defendants pay the plaintiff what may be found due him on taking the said account, together with his costs of action, by a short day to be appointed by the coiirt for that purpose ; or, in default thereof, that the said defendants, and all persons claiming under them, be absolutely debarred and foreclosed of and from all right and equity of redemption in and to the said mortgaged premises, and every part thereof, and that said defendants deliver up to the plaintiff all deeds, papers, or writings in their custody or power relating to or con- cerning the said mortgaged premises, or any part thereof; and for such further relief as may be just, with costs of tiiis action. 684. Short JForrn, On a Note and Mortgage, (m) I. That on the day of , 18 , the defendant made his promissory note of that date, and thereby promised to pay to plaintiff, or order, dollars, years after said date, for value received. II. That the defendant, on the day of j 18 > to secure the payment of said note, executed to the plaintiff his mortgage deed, and tlaereby conveyed to the plaintiff, his heirs and assigns, the following lands and tenements, situate in said county of [description as contained in the deed]. The condition contained in said mortgage deed was, in substance, that if [here set forth the condition]. . III. That on the day of ? 18 , at o'clock A. M. [or, V. M.J, said mortgage was delivered to the recorder of {rti) This form is from Swan's PI., and the indorser, the original mort- 414. gagee cannot be joined in the same It was held in Sands -b. Wood (1 count. Cla/rke {Iowa), 263), that in a proceed- The practice in this State regards the ing to foreclose a mortgage, or to en- foreclosure as a single cause of action force payment, both from the maker against all parties. COi ABBOTTS' FORMS. Actions to Redeem from Mortgages. said county, to be by him entered on record, and was recorded the same day [according to facts]. lY. That the said deed has become absolute ; and there is due and remaining unpaid upon said indebtedness the sum of dollars, with interest from the day of , 18 . Wherefore, the plaintiff asks that said mortgage may be fore- closed, the said premises ordered to be sold, and the proceeds applied to the payment of said debt, and execution awarded for the balance. Section XXX. COMPLAINTS IN ACTIONS TO EEDEEM MORTGAGED PEEMISES. (a) 685. By mortgagor against mortgagee 604 686, By lessee 605 685. By Mortgagor against Mortgagee. i. That on the day of ^ , 18 , the plaintiff having made to the defendant a bond under his hand and seal, dated that day, conditioned to pay, &c. [state condition of hond\, and, being owner in fee [or otherwise] of the premises liereinafter described, made to the defendant a mortgage of even date therewith, to secure the payment thereof, whereby the jjlaintiff granted, bargained, and sold to the defendant the said premises, upon the condition nevertheless that [state condition of the mortgage], which said premises are [bounded and] described as follows : [insert description from mortgage.] II. That the plaintiff has paid to the defendant all the inter- est due on said dollars, from the day of , 18 , up to the day of , 18 ; and that, on the day of ? 18 5 when [or, and after] the said mort- gage became due, he tendered to the defendant the sum of dollars, together with all interest [and costs] due there- fas) For tlie form of a complaint to for tlie appointment of new trustees ascertain and declare the rights of ad- under a trust-deed to fill the place o. verse claimants to real property, to trustees who had renounced, see Wood allow redemption from a mortgage, to gate i>. Fleet, 9 Abbotts' Pr., 222. restrain foreclosure of a mortgage, and COMPLAINTS. 605 Lessee's Action to Redeem from Mortgage. on, and has ever since been ready and willing to pay the same ; bnt the defendant refused to receive the same or to deliver up said mortgage to be cancelled. Wherefore, the plaintiff demands judgment that an account be taken of the amount now due the defendant on said bond and mortgage for principal, interest [and costs] ; and that the plaintiff may be at liberty to redeem said mortgaged premises upon payment of whatever may be found so due ; {b) and that the defendant, upon payment thereof, acknowledge satisfaction of said mortgage, and discharge the same of record. 686. By lessee. I. That on the day of , 18 , the defendant [m.orfgagor] being the owner in fee of the following d&scribed 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 com- plaint ; 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 [bounded and] described as follows : [descriptioti.] n. That on the day of s 18 , said [mortgagor] made to the defendant [mm'tgagee] a mortgage upon the same premises, to secure dollars, payable on the day of , 18 . in. That on the said day the mortgage became due, but has not been paid; and that said [mortgagee] has commenced an action [or, proceedings under the statute] to foreclose the same for such default. lY. That on the day of 5 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 mort- gage, and has ever since been ready and willing to pay the same ; and did then request him to assign the same to the plain- tiff, but he refused so to do. (6) In a bill for an accounting and mortgagee may be decreed to deliver redemption, a distinct offer to pay the possession, &c. Quin v. Brittain amount due is not necessary. The Jloffm., 853 ; and see Barton 'O. May, 3 form is, that, on the payment of what, Sandf. Ch., 450. if any thing, shall be found due, the 606 ABBOTTS' FOEMS. Actions for Partition ; Admeasurement ; and to Determine Conflicting Claims. Wherefore, the plaintiff demands judgmer)t 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. Section XXXI. COMPLAINTS IN ACTIONS FOE PARTITION ; FOE ADMEASUEEMENT OF DOWER; AND TO COMPEL DETERMINATION OF CLAIMS TO REAL PROPERTY. 687. For partition. General form 606 688. The game, setting forth sources of title 608 689. For admeasurement of dower 609 690. To compel the determination of claims to real property 610 687. For Partition. General Form. I. That the plaintiff, {a) and the defendants Y. and Z., own and possess, (h) as joint-tenants [or, as tenants in common], the following described premises : (c) [particular deseription of the (a) It is held that the wife should be was presumed that the complainant a coplaintiff in an action by her hus- was in possession, from the allegation band for partition of lands in which she that the parties were seized in common, has an inchoate right of dower. Rip- Jenkins ». Van Schaack, 3 Paige, 243 ; pie B. GUborn, 8 Sow. Pr., 456 ; and and see' Burhans ».-Burhans, 2 Barb. see Brownson v. GiflTord, Id., 389. Ch., 398. (6) The complaint must show that And so in proceedings by petition the plaintiff is in possession, actual or before the Code, where a party was constructive. Stryker ii. Lynch, 11 iV. stated to be seized of a certain portion, T. Leg. Obs. 116. it was construed to mean a seizin in A person possessed of an undisputed fee. Lucet v. Beekman, 2 Cai., 385. title to an undivided share in remain- In such proceedings, it was held not der, although there be an existing necessary to state the source from admitted life-estate covering the whole which the tenants derived title. Brad- premises, is " a person in possession of shaw «. Callaghan, 8 Johns., 558. And the lands of which partition is sought, this rule is considered applicable under as tenant in common," within the the Code. 2 Van Santt. Eq. Pr., 17. meaning of the statute. Blakely ». (c) It is held that this action is a pro- Calder, 13 Hoio. Pr., 476. ceeding in rem, and that the jurisdio- In a suit in chancery for partition, it tion of the court is confined to the sub- COMPLAINTS. 607 Partition in Case of Incumbrancers, and Unknown Owners. premises] ; aud that the plaintiff is desirous of a partition of the same. II. Tliat the plaintiff has an estate of inheritance therein of one undivided fourth interest in the fee thereof \or other estate]. III. That each of the defendants [cotenants] have a similar estate of one undivided foui'th interest in the same [or other- wise], {d) [ WAe7'e there are unknown owners.] IV. That W. X., who, in his lifetime, had an estate of inheritance therein of one un- divided fourth interest in the fee \or otherwise], several years since removed from this State to . That he subsequently- married, and had children, some of whom are now living; but their names and places of residence are wholly unknown to the plaintiff, and, although h.e has made diligent inquiries for that purpose, he cannot ascertain the same, or either of them. That said W. X. and his said wife are now dead ; and that said chil- dren and heirs, or the heirs at law of any who may be dead, are collectively entitled to the imdivided fourth part of said prem- ises to which said W. X. would be entitled, if living. \_Where an infant is a party.] V. That the plaintiff owns no other land in this State in common with the said [cotenants]. {e) [Where the lands are subject to dower.] VI. That the defend- ant [doweress] is the widow of M. N., tlie father of the said [co- tenants], from whom they inlieiited said premises ; and, as such widow, claims a right of dower wliich has not been admeasured in [the following described part of] said premises. (/") ject-matter stated in the complaint, the complainant should set forth the The plaintiff must seek partition of all nature of such contingent interest, lands in the State owned in common Van Cortlandt v. Beekman, Paige, by the parties to the action, unless all 492. parties consent to the bringing of a («) This allegation is required where separate action for partition of a part, an infant is made a party, by Sule 77 Supreme Court Bules, 73. 0/I808. (d) The rights and interests of all the (/) A widow claiming a right of parties in the premises, so far as known dower is a proper but not a necessary to the complainant, or as he has infor- party to proceedings for partition ; and mation and belief, should be stated. If a judgment which makes not a sale the share or interest of any party, or if but actual partition, in no way affects theownershipof the inheritance, is con- her interests, and should not be dis- tingent, so that the parties who may be turbed upon her motion to set aside f jr ultimately entitled cannot be named, irregularity. Gordon v. Sterliag, 13 60S ABBOTTS' FORMS. Actions for Partition ; Admeasurement ; and to Determine Conflicting Claims. [ Where they are svhject to a judgment.'] VII. That tlie do- fendatit [judgment-creditor] holds a judgment recovered by him [or, by one M. N., and thereafter duly assigned to him], duly given- in the Court [or, in an action before 0. P., justice of the peace in and for the town of J, on or about the day of ,18 , &g&m&t [one or more of the co- tenants], for the sum of dollars ; which judgment was, on the day of ? 18 > docketed in said county of [the place where the premises a/re situated], and remains unpaid and unsatisfied of record, {g) [ Where they are subject to a mortgage^ YIII. That the defend- ant [mortgagee] holds a mortgage upon the said interest of [one of the cotenants] for dollars, payable on the day of 18 , with interest from the day of , 18 . (A) Wherefore, the plaintiff asks judgment for [an accounting, and] a partition and division of said premises according to the respective rights of said parties ; or, if a partition cannot be had without material injury to those rights, then for a sale of said premises, and a division of the proceeds between the parties ac- cording to their rights, after payment of the costs of this action. 688. The Same, Setting forth Sources of Title. I. That on or about the day of ? 18 , C. B., being owner in fee of the real property hereinafter described. How. Pr., 405 ; and see Ash «. Cook, 3 accounting. Bogardus v. Parker, 7 AlAotts' Pr., 389 ; Tanner v. Niles, 1 Eow. Pr., 305. Barb., 560. Compare Ripple «. Gil- (A) It was held in Stryker v. Lynch born, 8 Eow. Pr., 456. (11 N. Y. Leg. Obs., 116), that it is not (5') A judgment-creditor of a deceased sufiicient to aver merely that the de- person is not entitled to be made a fendant claims an interest adverse to party to a partition suit instituted for the plaintiff, but the nature of the the purpose of apportioning real estate claim which tlie plaintiff controverts of the late debtor among his heirs and should be specially stated, devisees, in order to enforce his claim A complaint by heirs suing to have a to be paid out of such real estate, partition; notwithstanding an apparent Waring i). Waring, 3 Abbotts' Pr., 246. devise by the ancestor, and possession But tiie complaint may state that one held under the same, must allege that of the defendants claims to a specific such apparent deyise is void. Laws of lien on the premises, and ask for an 1853, 526, ch. 288, § 3. COMPLAINTS. 609 Partition, where the Sources of Title are Set Forth. Dower. died intestate as to the same, which real property is described as follows : '[description]. II. That the said C. B. left W. B., his widow, one of the de- fendants, who is entitled to dower in said premises. III. Tlidi subject to said dower the premises descended to the following named persons, the only heirs of the deceased : 1. The plaintiff, A. B., who is a son of said C. B., deceased. 2. The defendant, E. B., a daughter of the said C. B., de- ceased, and wife of one L. B. of county, in the State of 3. The defendants, F. M. and G. M., minor children of one F. B., a daughter of said C. B., deceased. The said F. B. in- termarried with the defendant, H. M., and afterwards died in- testate, leaving issue of said marriage F. M. and G. M., her only children and heirs, vrho reside in tlie county of , and for whom their father H. M., who resides in county, has been duly appointed guardian by the Probate Court of said county. The said H. M. is tenant by the curtesy of tlie estate of said children. i. G. B., son and only heir of one H. B., deceased. The said H. B. was a son of said D. B., deceased. The said G. B., after said estate was cast upon him by descent as aforesaid, con- veyed his estate in said premises, by deed duly executed, to the defendant X., who resides in lY. The parties above named have now the following undi- vided estate in said premises : 1. The plaintiff, one undivided [fourth] in fee. 2. The defendant E. B., one undivided [fourth] in fee. 3. The defendants F. M. and G. M., each one undivided [eighth] in/ee, subject to the curtesy of their father, H. M. 4. The defendant X., one undivided [fourth] in fee. [Allege specijic incumbrances, and demand relief, as in pre- ceding form.] 689. For Admeasurement of Dower, {i) 1. That the plaintiff was married to 0. B. in the year , and lived and cohabited with him until his death, which was on the day of , 18 . (i) This form is supported hy Townsend v. Townsend, 2 Sa7idf., 711 Vol. I.— 39 610 ABBOTTS' FORMS. Actions for Faitition ; Admeajsurement ; and to Determine Conflicting Claims. II. That the said C. B., during said coverture of the. plaintiff, was seized of an estate of inheritance of and in the lands situate in , and bounded and described as follows : [de- scription of the premises]. HI. That the defendant Z. is a son and heir pf said C. B,, of full age; and the defendant Y. is an infant son and heir of said C. B. lY. That said C. B. left a will, which was duly proved and recorded in the ofSee of the surrogate of , on or about the day of , 18 , by which he devised the premises [or designate what portion was devised] to the defendant "W. for life, with remainder over to the defendants. "Wherefore, the plaintiff asks judgment for one equal undi- vided third of the premises, as and for her dower, and that it may be admeasured and set off to her, and for her costs. 690. To Compel the Determination of Claims to Heal Property, {j) I. That on the day of , 18 , one M. N. was seized in fee-simple \or otherviise] and possessed of the follow- ing described premises : [particular description of premises]. [ Where plaintiff claims hy descent or devise.] II. That on that day, being so seized and possessed, said M. N. died, leav- ing the plaintiff his sole heir [or, leaving his last will duly made, wiiich was on the day of > IS , duly proved and admitted to probate by the surrogate of county, wliich will contained a devise to the plaintiff of said premises, or, of an estate for life, or otherwise, in said premises ; of which the following is a copy : copy of devise]. [Or, where he claims hy grant.] II. That on that day, being so seized and possessed, said M. N., by his deed under his hand and seal, dated on that dg,y, duly bargained, sold, and conveyed said premises to tiie plaintiff.] , (j) Tliis form is adopted in tlie Obs., 116. As to what are the facts Commissioners' report, p. 104. The necessary to constitute the cause of ac- proceeding is now an action under the tion, see the provisions of the statute, Code. Mann«. Provost, 3 ^56oto'Pr., 2 Bev. Stat., Z\% ; Laws of 1S48, 67 ; 446 ; Hammond I!. Tillotson, 18 Sarb., Laws of lS5i, 276 ; Laws of 1855, 943, 332 ; Stryker v. Lynch, 11 iV. T. Leg. ch. 511 ; Hager ». Eager, ^Barb., 93, COMPLAINTS. 611 Actions to Dissolve Partnerships and Corporations. III. Tliat as such lieir [or, devisee, or, grantee], the plaintiff has an estate therein in fee \or, for life, or, for years]. lY. That said premises now are, and at and for three yeara before tiie time of bringing this action, were in the actual pos- session of the plaintiff \or, at the time of bringing this action, were in the actual possession of the plaintiff, and for three years next previous were in the actual possession of the plain- tiff and the said M. N.j V". That the defendant nnjiistly claims title to said premises, in fee [or, to an estate for life in said premises, or to an estate for years iu said premises]. Wherefore the plaintiff demands judgment, that the defend- ant, and all persons claiming under him by title accruing subse- quently to the commencement of this action, be forever barred from all claim to any estate of inheritance or freehold, or to any term of years not less than ten, (^) in the said premises ; and for costs of this action. Section XXXII. COMPLAINTS IN ACTIONS FOE DISSOLUTION OF PARTNERSHIPS AND CORPORATIONS. 691. To dissolve a partnership ^ p. 611 693. Tlie same ; on account of defendant's misappropriation of funds 613 693. By administrator of deceased partner against the survivor 614 694. By a creditor, to dissolve a corporation 616 695. The same, against an insolvent banking association 617 696. By the attorney-general, to dissolve a corporation for exercising a fran- chise not conferred by law 618 691. To Dissolve a Partnership. I. That on the day of , 18 , the plaintiff and the defendants [copartners^ formed a partnership for the pui'- pose of [state husiness'], under the following articles of partner- sliif/: [set out articles., or ann£x copy, and say, under articles of copartnership, of which a copy is annexed as apart of this complaint, and marked Exhibit A.] (/t) Laws 0/1860, 395, ch. 173. 612 ABBOTTS' FORMS. Actions to Dissolve Partnerships and Corporations. [Or, if the agreement was not in writing, state its efecthrief- ' ly, — e. g., under an agreement that the plaintiff should con- tribute the use of dollars capital, and that the plaintiff and the defendants \c&partners'\ should co-operate in the care and labors of the business, and that the plaintiff should receive one-half of the net profits, and upon a dissolution of the part- nership, repayment of his capital, and that the defendants should receive each one-quarter of the net profits.] II. Tliat the plaintiff and defendants now own a valuable lease of premises No. , street, in , and a large and valuable stock of goods ; that they have also a large amount of debts due to them, and a valuable good- will, which are of far greater value when taken together than if separated; and that no equitable divisions of the assets and good-will of said partner- ship can be made without great loss to all parties, except by a sale thereof together, and a division of the proceeds thereof. [ Where the dissolution was hy an assignment.'] III. That on the day of ; 18 , the defendant \a partner] with- out the knowledge or assent of the plaintiff", by writing, assigned and transferred to the defendant [assignee], all his interest in said partnership, and all his right and title to any and all prop- erty belonging to said firm ; whereby said partnersliip became dissolved. [Or, wliere the dissolution is hy exclusion of the plaintiff.] III. That on the day of , 18 , the defendant [a partner] took exclusive possession of the partnership books and stock, and then and ever since prevented the plaintiff from hav- ing access to tlie same. [Or, where the dissolution is upon notice given hy one of the partners.] III. That on the day of , 18 , the de- fendant [or, the plaintiff] pursuant to the provision of said agreement, gave to the [defendant or plaintiff] a written no- tice of his intention to dissolve said agreement, of which a copy is annexed as a part of this complaint, and marked Exhibit B. [Or, where the dissolution is on the ground of the insolvency or arrest of a partner.] III. That the defendant before this ac- tion became insolvent, and on or about the day of 18 , was arrested on the day of , 18 , at the suit of one M. IST., for a debt of dollars [and in consequence of such arrest, has ever since been a prisoner at ]; and that COMPLAINTS. 613 To Dissolve Partnership for Fraud. by reason of such insolvency [and arrest] the partnership has been greatly discredited, and has sustained loss by the absence of said defendant therefrom. "Wherefore, the plaintiff demands jndgment, that the said partnership be adjudged dissolved, that a receiver of tlie prop- erty, rights, and good-will of said partnership be appointed, with power to dispose of the same, and to collect all debts for the benefit of all parties entitled thereto, and that the proceeds thereof be divided, after pa3'ment of all just debts of said part- nership and the costs of this action, betM'een the parties hereto, according to their respective rights. 692. For Dissolution of Partnership on Account of Defendant's Misappropriation of Funds, {a) I. \^As in preceding form.] II. That said plaintiff and defendant entered upon, and have ever since continued to carry on the said copartnership busi- ness, under and in pursuance of said agreement, no other arti- cles or instrument having ever been executed between them. III. 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 en- titled, and, in order to conceal the same, said defendant, who has always had the management of the copartnership books, has never balanced said books. IV. That on or about the day of , IS , the plaintiff discovered that the defendant was greatly indebted to said copartnership, by reason of his applying the copartnership moneys to his own use, as aforesaid ; that the plaintiff then re- quested the defendant to pay all copartnership moneys that he received into the Bank, in which the copartnership was accustomed to keep its accounts, and to draw therefrom only such sums as such copartnership had occasion for ; that said defendant wholly disregarded said request, and continued to apply the copartnership moneys received by him to his own use, without depositing the same in said bank, or any otiier («) This form is, in substance, from the Sq. Draft, 307 ; and 3 Van Santv. Eg Pr., 568. 614 ABBOTTS' FORMS. Actions to. Dissolve Partnerships and Corporations. bank, to tlie credit of the firm, and has also taken to his own use moneys received by the clerks of said firm, and has by such means greatly increased his debts to the copartnership, without affording to the plaintiff any a,dequate means of ascer- taining the true state of his accounts. V^. That the defendant has received the sum of dollars over and above his due proportion of the copartnership profits, and that he continues to collect the copartnership debts and appropriate the moneys to his own use. Wherefore, the plaintiff demands judgment: 1. That the said copartnership may be dissolved, and an ac- count taken of all the said copartnership dealings and transac- tions from the commencement thereof, and of the moneys re- ceived and paid by the plaintiff and defendant respectively in relation thereto. 2. That the property of the firm, real and personal, be sold, and the copartnership debts and liabilities be paid off, and the surplus, if any, divided between tli'e plaintiff and defendant, according to their respective interests. 3. That in the mean time the defendant may be enjoined from collecting or receiving, or in any manner interfering or intermeddling with, or disposing of the partnership debts or Ynonej'6, or other property or effects of said partnersliip. 4. That a receiver of the partnership moneys, property, and effects may be appointed, with the usual powers and duties. 6. And for such other and further relief as may be just, with the costs of this action. 693. By Administrator of Deceased Partner, against the Survivor. I. As in Form 691, substituting decedent" s name for the words '■'■ the plaintiff .''^ II. That the said copartnership 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 [decedent], which occurred on the day of , 18 , said \_decedeni\ having advanced large sums of money towards the capital stock. III. That at the time of the death of the said [decedenf] there COMPLAINTS. 615 By Administrator against Surviving Partner, for Accounting. was on hand partnership assets to the amount or value of about dollars, as follows : a large amount of personal property, consisting of [name it], of the estimated value of dollars ; real estate, situated [describe it], of the estimated value of dollars ; together with book-accounts, notes, and other demands of the estimated value of dollars ; and the debts and lia- bilities of said firm amounted to about dollars. [Allege appointment of executor or administrator, as in Form 185 or 187, ante, pp. 140-142.] lY. That ever since the death of said [decedent], the said de- fendant has continued, individual!}', in the possession of the store and all said real and personal property, and to manage and carry on said business, and dispose of said stock, and to collect the debts and things in action, and to pay debts and liabilities of said firm out of the avails thereof; and he has so collected large sums, the amount of which the plaintiff does not know and cannot ascertain. V. That said defendant has not paid over to said plaintiff, as administrator of the estate of said [decedent], any moneys or other proceeds of said copartnership since the death of said [der cedent], [except dollars] ; nor has he assigned, transferred, or delivered over to said plaintiff any of the assets, securities, or othei' property of said copartnership [except, &c., describing what has been delivered, if any]. VI. That within a few weeks last past, said defendant has become embarrassed in business, and has stopped payment, and is unable to give any security for the payment to the plaintiff, as the representative of said [decedent], of the value of the in- terest of said [decedent] in said copartnership. VII. That the plaintiff has requested of said defendant a statement and account of said copartnership transactions, which the defendant refused to give ; and that he has offered defend- ant to settle and wind up the affairs of said late copartnership in the manner specified in said agreement, which he has neg- lected to do. Wherefore, the plaintiff demands : 1. That an account may be taken of all the said copartner- ship dealings and transactions, from the time of the commence- ment thereof to the time of dissolution by the death of said [decedent], and an account of the moneys received and paid hy C16 ABBOTTS' FORMS. Actions to Dissolve Partnerships and Corporations. the said partners respectively in regard thereto ; that the de- fendant may account with the plaintiflF for all his dealings with, and transactions in regard to the property', assets, and effects of, said iirin since its dissolution b}^ the death of said [deoedeni], and the property sold or disposed of by him, either as surviv- ing partner or otherwise, and of the moneys collected and re- ceived and paid out by him on account thereof. 2. That the defendant may be adjudged to pay the plaintiff, as administrator as aforesaid, wliat, if any thing, shall, upon the taking of the said accounts, appear to be due said plaintiff as administrator of said [decedent] ; the said plaintiff, adminis- trator as aforesaid, being ready and willing, and hereby offer- ing to pay the defendant what, if any thing, shall appear to be due him on such accounting. 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 collecting or reccjiving the copartnership debts or other moneys coming to said firm. 4. For such other or further relief as may be just, with costs of this action. 694. By a Creditor, to Dissolve a Corporation. (5) I. and II. \Aver incorporation., as in Form 183 or 183, ante, p. 137 ;(c) and aver judgment arid execution unsatisfied, as in Form 662, ante, 571.] n. That said company has become, and is insolvent, and un- able to pay its debts. IV. That the defendants {officers] are the trustees \or, direct- ors] of said corporation. y. That on the day of , 18 , the directors of said company, with intent to defraud the creditors of said cor- poration, confessed judgment against said corporation to the defendant Z., who is president thereof, for the sum of (ft) Under 2 7?«ii. Slat., 462. also be alleged, whore it is designed ti> (c) If this averment does not show procfed under that and the follo'sving that the corporation sued possesses the , sections. powers meat oned in 2 Rev. Stat., 483, The action must how, in K Y be bv § 39, the possession of them should jj^^ ^^^y q^^ j^ jg^O_ ^ ^^^^ ^ 2. " COMPLAINTS. CI 7 To Dissolve Corporation. To Dissolve Banking Association. dollars : that an execution was on the same day issued therein, and levied on all the real and personal property of said corpo- ration. That, in fact, the said corporation was not at that time indebted to said Z., but said judgment was confessed fraud- ulently and contrary to law, and for the purpose of covering up the property of said corporation, and defrauding tlie cred- itors thereof. 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 man- agement and disposition of the funds and pi-operty of said cor- poration 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 themsel ves 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 ex- ercising 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 transferring or delivering to any per son 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 ap- pointed pursuant to the provisions of the Eevised Statutes, with the powers and authority conferred upon receivers in such cases, id) 6. And for the costs of this action. 695. The Same, against an Insolvent Banking Associatton. I. [As in Form 178, p. 133.] II. That the plaintiff has heretofore kept account with said defendants, and deposited money with them, and drawn for the same by his checks ; and that on the day of , 18 , (Sj A complaint wliich asks for a re- its trustees, without making them par- ceiver of the property of a corporation ties, or even stating who they are, is which is sued, without asking for its dis- defective and demurrahle. Reid 1). Th(! solution, and for an injunction against Evergreens, 21 How. Pr., Sli). 618 ABBOTTS' FORMS. Actions to Dissolve Partnerships and Corporations. he had on deposit with the said defendants, over and above al] claims and demands thereon, upwards of dollars. III. That on said day he drew hi%ieheck, of which the follow- ing is a copy : [coj)y check]^ which has been dujy presented bv the plaintiff; but the defendants are unable, and have refused, to pay tiie same. IV. That the said defendants have suspended payments, and ceased to exercise their ordinary business, and are unable to pay their debts, and are insolvent, and have violated the pro- visions of the act under which they were organized. [J'<)r demand of relief, see preceding form^ 696. By the Attorney-general, to Dissolve a Corporation for ■ Exercising a Franchise Not C(mf erred hy Law. (e) I. [Aver incorporation of defendants: see Forms 178-184, ante, p. 133.] II. That said corporation for the space of months past has exercised, without any warrant, charter, or grant, the fran- chise of banking, and has issued notes, received deposits, made discounts, and transacted other banking business to which it was not authorized, and has exercised franchises not conferred Upon it by law. Wherefore, the plaintiifs demand judgment, that the defend- ants {co7poration'\ be excluded from all corporate rights, privi- leges, and franchises, and that said corporation be dissolved ; and for the costs of this action. («) As to the rules of pleading in such form an act which is required only actions, see Code of Pro., §§ 434, 435 ; under peculiar circumstances, the con- People V. Ravenswood, &e., Turnpike dition upon which the company in- & Bridge Co., 20 Barb., 518 ; People v. curred the obligation to do it must he Utica Ins. Co., 15 Johns., 358 ; People specifically and substantially alleged. ». Richardson, 4 Cow., 97. People «. Bristol & Rensselaerville Turn. In pleading the ground of a forfeit- pike Co., 23 Wend., 222. ure for neglect of a corporation to per- COMPLAINTS. 619 For Usurping Elective Office. Section XXXIII. COMPLAINTS IN ACTIONS FOR U8UEPING OFFICE. [In an action against a person for usurping an office, the attorney-general, in addition to the statement of the cause of action, may set forth in the com- plaint the name of the person rightfully entitled to the office, with a state- ment of his right thereto, (a) The complaint need not aver that the claimant possessed the requisite qualifications for the office, nor that he has taken the oath and given the bond of office ; nor need it state the number of votes given, (h) The complaint may be good as against defendants, notwithstanding de- fects in aUegationa inserted to show the relator's title.] (c) 697. For an elective office p. 619 698. For an office not elective 630 697. For an Elective Office, {d) [. That on the day of November, 18 , at an election duly held in the [designate the county or district] of tliis State, pursuant to the statute, for the election, among other officers, of [a county judge of said county], for the term of years from the iirst day of January, 18 , the said [individual plain- tiff] received the greatest number [or, the niajoi-ity, acourding to the statute] of legal rotes for the said office, and was duly elected. II. That on the day of , 18 , the defendant usurped the said office, and has ever since unlawfully exercised the same, and withheld the same from the said [individual j>laintiff] {e) (a) Code of Pro., % 435. tion, and the last clause in the demand (6) People ea; r«Z. Crane D.Ryder, 13 of relief, and alleging that defendant has 2f. 7! '(3 Kern.), 433; S. C, tS Barb., unlawfully usurped the duties of the 370. office specified, and that no such office (c) Flynn v. Abbott, 16 Col., 358 ; exists by law, and that the acts of de- People V. Ryder, 16 Barb., 370. fendant are without authority of law. (d) This form is sustained by People People v. Carpenter, 24 i\7". T., 86. ex rel. Crane v. Ryder, 12 2f. Y. (3 (e) Allegations showing that defend- Kern.), 433 ; Piatt v. Stout, 14 Abbotts ant is in possession of the office with- Pr., 178. out lawful authority, would sufficiently A complaint for usurping an office import intrusion and usurpation, at which has no legal existence, may be least after judgment. People u. Wood- framed by omitting the first allega- bury, 14 Ccd., 43. C20 ABBOTTS' FORMS. Actions for Usurping Office. . Wherefore, tlie plaintiff demands judgment, with costs : 1. That the defendant is not entitled to the said office, ami that he be ousted therefrom. 2. That the said [individual plaintiff'\ is entitled to th« office, and to assume the execution of the duties of the same on taking the oath and filing the bond prescribed by law. 698. For an Office not Ekctvoe. (/) I. That at the times hereafter mentioned, in the municipa* corporation entitled " The Mayor, Aldermen, and Commonalty of the City of New York," there was, and still is, an executive department Qreated and existing under the laws of this State, known as the street department, the chief officer of which de- partment is called the street commissioner, which office of street commissioner was and is a public office in said city. II. That in the month of , 18 , one J. S. T. was duly elected to said office, for the term of years from the day of ) 18 J and on said day entered upon the duties of said office, and discharged the duties thereof until the day of , 18 , when he died, whereby the office became, and thence, until and at the time of the appointment hereinafter referred to, continued vacant. III. That after said death, and on the day of , 18 , the said [individual plaintiff'\ was- appointed to said office by the mayor of said city, with the advice and consent of the Board of Aldermen of said city, and thereafter, and on the same day, in due form of law, and according to the ordi- nances of the corporation of said city, he gave sufficient security for the performance of his duties as such street commissioner, in the form and amount for that purpose prescribed by the said ordinances, and took and subscribed, before the mayor of said city, and filed, his oath in the following form : [copy oatli]. And that he accepted such appointment, and in all respects quali- fied himself to assume such office, and perform the duties thereof. (/) Tills is, in substance, the com- For another precedent which may plaint in People i). Conover, \vhich was readily be adapted to an action respect, sustained on demurrer. 6 Alhotts' Pr. ing ihe title to the office, see Form 341 220. arite, p. 185. COMPLAINTS. 621 Analysis of the Section. lY. That the defendant, claiming to have been appointed bj the governor of the Stale of ISTew York, to fill the aforesaid vacancy, created by the death of said J. S. T., and without any other or any legal warrant, right, or grant whatever, intruded into and usurped said office, and still unlawfully holds and ex- ercises the same. [^Conclude as in preceding form.'] Section XXXIV. COMPLAINTS IN ACTIONS FOE DIVORCE. [Actions for divorce are so generally regulated by statute, and with diverse provisions in different States, that in using these forms reference should be had to the statutes of the State where the action is brought. In some cases, the action may be by the parent or guardian, or a relative ; and when this course is pursued, the complaint should aver the relation- ship, (a) Under the statute of New York, it seems unnecessary to refer, in the de- mand for relief, to alimony or the custody of children. These matters are rather like provisional remedies, or proceedings upon a judgment, than a part of the relief to be specified in the complaint.] 699. For divorce, on the ground of adultery , p. 631 700. For limited divorce, on the ground of cruel and inhuman treatment . . 024 701. Allegation of wilful absence 625 702. Allegation of drunkenness 626 703. Allegation of imprisonment 626 704. For divorce on account of nonage 626 705. On the ground of lunacy , 627 706. On the ground of fraud by husband 627 707. The same, by wife 628 708. On the ground of physical incapacity 628 699. Jf'or a Divorce on the Ground of Adultery. (J) 1. That on the day of > 18 , at [in this State], the plaintiif was married to the defendant. {a) In such cases. Van Santvoord cannot be sought in the same action recommends that both husband and with a limited divorce for ill-treatment, wife be made defendants. 2 Eq. Pr., Charges of adultery and of cruel usage, 255. being distinct and independent, and '6) An absolute divorce for adultery leading to distinct issues and decrees. 622 ABBOTTS' FORMS. Actions for Divorce. n. That the plaintiff and the defendant were, at the tinle of tlie commission of the several acts of adultery hereinafter men- tioned, inhabitants of this State. [Or, if the inarriage is alleged to have taken place within this State, — That the- plaintiff, at the time, c&c, as above', was, and now is, an actual inhabitant of this State.] [Or, if the adultery is charged to have been commitisd within this State, — That the plaintiff now is [or, at the commencement of this action was] (c) an actual inhabitant of this State.] III. That on the day of , 18 , at the house of [or, at No. , street], in the city of , the defendant committed adultery witli one M. N. {d) [Charge of repetition]. lY. That a few days subsequently thereto, the defendant again committed adultery, at the house aforesaid, with the said M. 1^. [ Where tlie precise time is not known.] V. That between the day of , 18 , and the day of ? 18 , at times which the plaintiff is unable more particularly to state, the defendant [&c., as above], [Where the place is not known.] VI. That on the day of ) 18 , at some place in the city of , which the plaintiff is unable more particularly to state, the defendant [cfcc, as above], [ Where time and place are not known.] YII. That at divers places within the city of , and at various times between the day of , 18 , last and this action, but at what particular times and places the plaintiff is unable to state, the defendant has committed adultery with one M. N. cannot be united. Jolinson n. Jolmson, the commencement of the action, an 6 Johns. Ch., 163 ; Smith «. Smith, 4 inhabitant of the State. For gi-eater Paige. 92 ; Rose ®. Rose, 11 Id., 166. safety, however, it is vfell to follow the And the same rule is applied under the form of the text, wherever consistent Code of Procedure. Mcintosh v. Mc- with the truth. Intosh, 12 How. Pr., 289. (d) This is the proper form where the (c) The statute prescribes that the facts are known. It was held, how- plaintiff must be, at the time of " ex- ever, in Farr v. Farr (34 Miss. (5 Geo.), hibiting the bill of complaint," an in- 597), that to avoid scandal the name of habitant of the State. Under the old the third person need not be given, if suf- eqioity practice, this was in effect the ficient certainty can otherwise be had. commencement of the action ; and it is Either one of the paragraphs from V. probable that the statute is satisfied by to IX. are sufficient instead of this an aUegatipn that the plaintiff was, at paragraph. COMPLAINTS. 623 On Account of Adultery. [ Where the paramour is not known.'] VIII. That oji the day of ,18 , at the house of \or, at No. , street], in the town of , the defendant committed adultery with a man [or, a woman], whose name is unknown to the plaintiff \or, one or more women, whose names are unknown to the plaintiff], {e) [Charge of living in adulteroiis intercourse.'] IX. That the defendant has committed adultery with one M. N., and ever since the day of has been living in adulterous intercourse with him [or, her] at X. That such adultery was com.mitted without the consent, connivance, privity, or procurement of the plaintiff; that five years have not elapsed since the plaintiff discovered the fact of such adultery [or, when living in adulterous intercourse is charged, that five years have not elapsed since the commence- ment of such adulterous intercourse was discovered by the plaintiff] ; and that the plaintiff has not voluntarily cohabited with tlie defendant since sucli discovery [or, since the commis- sion of the last offence above alleged]. (/") XL That there are no issue of the said marriage of the plain- tiff and defendant [or, That the issue of the said marriage of the plaintiff and defendant are two children, named , aged years, and , aged years, {g] [ 'W?iere there are illegitimate children of guilty loife.] XII. (e) This allegation is sustained by Conant (10 (Jal., 249), that though a Germond «. Germond, 6 Jolais. Ch., complaint which is defective in these 347. But if the person is unknown, respects is demurrable, yet by failing the place should be distinctly stated, to demur the defendant waives the Heyde ■». Heyde, 4 Sandf., 692 ; Kane objection. And in IngersoU v. Inger- V. Kane, 3 £!dw., 389. soil (1 Oode R., 102), the court refused It was the rule in chancery, that an to strike out such a general averment, allegation which was too general in holding that it was not immaterial, but respect to the circumstances of the tended to show a cause of action, offence, would not avail to authorize a (/) The allegations of paragraph X; feio-ued issue or to admit evidence, are not essential ; but Rule 86 of 1858 Codd «. Codd, 2 Johns. Ch., 224 ; Whis- requires an aflBdavit to the same facts, peU ■». Whispell, 4 Barb., 217 ; Wood unless they are inserted in the com- 11. "yVood, 2 Paige, 108 ; Kane ■». Kane, plaint, and it is verified by the jtlain- 3 Edw., 389. tiff. And this rule has been in many cases {g) This clauss, though usual when followed in practice under the Code in there are children, &c., is probably un this State. necessary under our statute. It was, however, held in Conant v. 694 ABBOTTS' FOEMS. Actions for Divorce. That since the commission of said adultery the defendant has born a child, now months old, and called , who is not the child of the plaintiff, but illegitimate, as lie believes. (A) Wherefore, the plaintiff demands judgment that the bonds of matrimony between [him] self and the defendant be dissolved. \If there are any children livmg, add : {i) and that the custody of the said children be awarded to the plaintiff. If tlie wife is plaintiff, add: {i) and that a reasonable provision for the sup- port of the plaintiff and her said children be made out of the property of the defendant.] And for the costs of this action. TOO. For Limited Dimorce, on Account of Cruel and Inhuman Treatment. I. That on the day of , 18 , at , in the State of , she was married to the defendant. II. That both the plaintiff and the defendant were, at the commencement of this action, and Still are, actual inhabitants of this State. \0r, if the, marriage is alleged to have taken place in this State, it is enough to say : II. That the plaintiff was, at the commencement of this action, and still is, an actual resident of this State.] [Or, if the marriage is not alleged to have taken place in this State: II. That the plaintiff and defendant have, since their said marriage,, become inhabitants of this State^ and so remained for one year from the day of ■ , 18 ; and the plain- tiff was, at the commencement of this action, and still is, an ac- tual resident of this State.] III. That since said marriage the defendant has treated 4ier in a cruel and inhuman maimer, and since about the beginning of the year 18 , has been an habitual drunkard, and iti his fits of drunkenness has fepeatedly committed acts of cruelty and violence upon deponent and her children, and in particular as follows : [state the specific acts, — e. g., thus .'] On the day of , 18 , at , the defendant, without any Qi) This allegation is required, by (i) These clauses, though usual, are Rule 90, where tte plaintiff would not probably necessary under our stat- question the legitimacy. ute. COMPLAINTS. 625 On Account of Cruel and Inhuman Treatment. j-rovoeation, struck and beat the plaintiff, severely injuring her face and breast ; and on the day of ? 18 , at , the defendant again, without any provocation, knocked tlie plaintiff down, and kicked her in the side ; {J) and that defendant's entire course of conduct towards the plaintiff, with rare intervals, has been for a long period uniformly brutal and abusive, he being constantly in the habit of applying abusive epithets to her, of threatening her with violence, and of striking and attempting to strike her ; and ij; has become entirely unsafe for her to live with him. [Or, That on the day of , 18 , the defendant abandoned the plaintiff [and expelled her from his residence, and has refused to permit her to return], and has since refused [or, neglected], and still does refuse [or, neglect], to provide for her.] IV. [As to children, as in Form 699.] Y. That in and about the year , and after their mar- riage, the said defendant received dollars as the distrib- utive share of the plaintiff in her father's estate ; the whole of which the defendant has applied and converted to his own use. And that the defendant owns real estate to the amount of dollars, and personal estate to the amount of dollars. Wherefore, the plaintiff demands judgment for a separation from the bed and board of the defendant [conclude as in pre- ceding forni]. ^ 701. Allegation of Wilful Absence. Qc) That although the plaintiff' has always conducted herself towards the said defendant as a faithful and obedient wife, the defendant, disregarding his duties as a husband, has been wil- fuUv absent from the plaintiff for more than years last ( j) The complaint must state specific wards plaintiff, for the purpose of un- acts. 2 Rev. Stat., 147 ; Anonymous, derstanding more fully the particular 11 Abbotts' Pr., 231 ; S. C, su6 nom. circumstances complained of Whis- _ Walton r. Walton, 33 Bari., 203. pell «. Whispell, 4 Barb , 317. These specifications present the mat- [k) Tliis and the two foUowing are ter in issue to which the proof is to he not ground of divorce in this State, hut directed: hut it is also proper to look are in some others, at the general conduct of defendant to- VoL. I.— 40 026 ABBOTTS' FORMS. Actions for Divorce. past, without any cause or justification therefor, so far as tho plaintiff is concerned. 702. Allegation of Drunkenness. The defendant, disregarding his duties as a husband towards the plaintiff, has been guilty of habitual drunkenness for the years last past. « 703. Allegation of Im;prisonment. That at the term of the Court of , in and for the county of • , and before this action, the defendant was duly convicted of the crime of , and duly sentenced by said court to confinement in the of this State for the term of years ; and, in pursuance of the said sentence, the defendant is now confined in said- 704. For Divorce on Account of Nonage, (l) I. [State appointment of gitardiati, as in Form 193 or 194, ante, p. 145.] II. That on the day of , 18 , at , the plaintiff was married to the defendant. III. That at the time of such marriage they were, and ever since have been, inhabitants of this State, (m) lY. That at the time of such marriage the plaintiff had not attained to the age of \if the female, say, twelve, if the male, say, fourteen] years, but was of the age of years on the day of then last past. Y. Tliat since the plaintiff has attained to the age of [twelve] years [she] has never voluntarily or freely cohabited with the defendant. Wherefore, the plaintiff demands judgment that the said marriage be annulled and declared void, and for the costs of this action. If) For tlie facts to be stated wliere husband, see Laws of 1841, ci. 257. the suit is on behalf of the female under (m) This averment -is usual, but does fourteen, the marriage having been a not seem to be required by the statute, punishable offence on the part of the 3 Bev. Stat., 143. COMPLAINTS. 627 On Account of Lunacy, or Fraud. 705. For Divorce on the Oround of Lunacy, {n) [I., TI., and JIT. as in preceding form, except that, where thA plaintiff has heen restored to reason, omit Z] IV. That at the time of such marriage she was a lunatic, and incapable of contracting a marriage ; and has been ever since \or, and that she remained a lunatic for the space of about six month.s after sucli marriage], (o) V. Tliat her reason was restored about the month of , and that she is now of sound mind ; (/>) but that she has not cohabited with the defendant since she was restored to a sound mind. [Demand of judgment as in preceding form.'] 706. For Divorce, on the Ground of Fraud hy Husband. I. That on the day of , 18 , at , the plaintiff was married to the defendant. • II. That for the purpose of inducing tlie plaintiff to consent to the said marriage, the defendant falsely and fraudulently represented * to [her] that he was one A. B., whom tlie plain tiff knew by reputation to be a respectable and honorable man and he concealed from the plaintiff liis real name and character. III. Tliat the defendant's real name is, and always was, C. D., and not A. B. ; and tliat he was and is a man of very bad repute, having been convicted of forgery, and confined in the State prison at Sing Sing in this State, under sentence therefor, for years. * IV." That the plaintiff was induced to consent to the said marriage. by the said representations, which she believed at the time of her said marriage to be true, [and by lier ignorance of tlie facts so concealed] ; and that if the said representations had not been made to her [and said concealment had not been prac- tised], she would never have consented to the said marriage. V. That immediately upon her discovery of the falsehood of the said representations, to wit, on the day of , (n,) See 3 Rem. Stat., 142 ; also, had ; but this is vinnecessary. 3 Van Wightman v. Wightman, 4 Johns. Oh., Santv. Eq. Pr„ 253. 343_ {p) This allegation is proper where (o) It has been usual to aver a com- the plaintiff' does not sue by guardin' mission of lunacy, where such has been 628 ABBOTTS' FORMS. Actions for Divorce. 18 , the , plaintiff left the defendant's house, and has' never "since cohabited with him. {^Demand of judgment as in Form 704.] 707. The Same, ly Wife. Svhstitute in preceding form, for the words between the aster- isks : to the plaintiff that she was a chaste and virtuous woman, which representation the plaintiff believed to be true. III. That defendant was in fact unchaste an|3 of lewd habits, .and was the mother of., an illegitimate child; which facts the defendant fraudulently concealed from the plaintiff. 708. For Divorce for Physical Incapacity. I. That on the day of , 18 , and within two years before this action, at , she was married to the defendant. II. [See III., in Form 70i.] III. That the defendant was then, and ever since has re- mained, physically incapable of entering into the marriage state or of consummating the said marriage, .by reason ot incurable personal defects, in that [here the nature of the in- capacity may he h-iefiy stated, — e. g., thus:'] the uterus and vagina of the said defendant were, at the time of such inter- marriage, and for a long time previous thereto had been, in a diseased, and in a schirrous, cartilaginous, and ulcerated state, and unnaturally thickened and indurated, [g) IV. That said incapacity was known to the defendant at the time of contracting said marriage, but was unknown to the plaintiff, (r) [Demand of judgment, as in Form 704.J (q) The allegations frequently insSft-''' the Code, they are needless and objec- ed, in a suit by the wife, that the plain- tionahle. tiff is a virgin intact, and was apt and (r) This allegation is usual, but willing, &e., are mere matters of evi- seems unnecessary, except where it can dence, tending to establish the main be added that the concealment was fact of the defendant's incapacity. In fraudulent, so as to make an additional a bill in chancery, such averments were cause of dissolution. proper and useful ; in a pleading under END OF VOLUME I.