m % ■ A ^^^^ " 1 I r\ '- H| ■ _ ^^^^= o \m 1 ^Sis 9 Jj Q ^^^= 2 1 . I 7 n 13 1 Q ^^^^^ > 1 9 55 {] 1 ' JD J f( 2 ■; 1 "^ M '^™^ ^ H 1 ===== 1 f • - THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF Mirer. Glauber ADJUDICATED FORMS OF PLEADING AND PRACTICE WITH ANNOTATIONS AND CORRELATIVE STATUTES ADAPTED TO USE GENERALLY IN ALL CODE STATES AND TERRI- TORIES, AND IN PARTICULAR TO THE FOLLOWING: ALASKA, ARIZONA, ARKANSAS, CALIFORNIA, COLORADO, HAWAII, IDAHO, IOWA, KANSAS, MINNESOTA, MISSOURI, MONTANA, NEBRASKA, NEVADA, NEW MEXICO, NORTH DAKOTA, OKLAHOMA, OREGON, SOUTH DAKOTA, TEXAS, UTAH, WASHINGTON, WISCONSIN AND WYOMING. BY JOHN G. JURY OF THE SAN FRANCISCO BAB IN TWO VOLUMES VOLUME II SAN FRANCISCO BENDER-MOSS COMPANY LAW PUBLISHERS AND LAW BOOKSELLERS 1011 3i"m \e\\ Copyright, 1911 By Bender-Moss Compabv. OUTLINE OF TITLES AND CHAPTERS IN VOLUME L (For analytical table of contents thereof see Volume I.) TITLE I. — Pleading and Practice in General. Chapter I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. Introductory. Pleadings on the part of the plaintiff. Pleadings on the part of the defendant- Joinder of causes of action. Counterclaim and set-off. Cross-complaint. Amendments to pleadings. Material allegations, variance, and mistake. Supplemental pleadings. Sham and irrelevant pleadings. Definiteness and certainty in pleadings. — Election between causes. Verification and subscribing of pleadings. Construction of pleadings. — Pleading particular and formal facts. TITLE II. — Parties to Actions. XIV. Parties in interest. — Assignment and disclaimer. XV. Executors, trustees of express trusts, married women, minors, etc., as parties. XVI. Substitution, interpleader, and intervention. XVII. Corporations, partnerships, and associations as parties. XVIII. Fictitious parties. XIX. Misjoinder and non-joinder of parties. TITLE III. — Defenses to Actions in General. XX. Defenses in abatement. — Miscellaneous defenses. XXI. Defenses to actions founded' upon contract. XXII. Defenses to actions for wrongs. TITLE IV. — Actions Relating to Personal and Domestic Security. XXIII. False imprisonment. XXIV. Malicious prosecution. XXV. Civil action for assault and battery. (iii) 831 i v OUTLINE TABLE OF CONTENTS.— VOL. I. Chapter XXVI. Libel and slander. XXVII. Abduction, seduction, and alienation of affections. XXVIII. Actions relating to unlawful discriminations in places of public accommodation or amusement. TITLE V. — Actions by and against Persons under Legal Disability. XXIX. Actions by or against minors. XXX. Insane and incompetent persons. TITLE VI. — Actions Incident to or Concerning Domestic Relations. XXXI. Annulment of marriage. XXXII. Divorce. XXXIII. Maintenance and support of wife. XXXIV. Actions relating to property of busband and wife. — Curtesy and dower. XXXV. Custody and support of minor children. XXXVI. Adoption. XXXVII. Actions relating to master and apprentice. TITLE VII. — Actions by and against Private Corporations. XXXVIII. Actions relating to the management and internal affairs of corporations. XXXIX. Actions upon stockholders' liability. XL. Actions against foreign corporations and their stockholders. XLI. Actions to restore lost or destroyed corporation records. TITLE VIII. — Actions by and against the State, Municipal Corpora- tions and Public Officers. XLII. Actions instituted by attorney-general, or by or against the state. XLIII. Actions by and against counties and county officers. XLIV. Actions by and against cities as municipalities, city boards and officers. XLV. Actions by and against sheriffs and constables. XLVI. Actions relating to taxes and revenue. TITLE IX. — Actions Specially Designated in the Code. XLVTI. Foreclosure of mortgages on real property. XLVIII. Redemption of mortgages. XLIX. Nuisance. L. Waste. LI. Trespass. LII. Actions to Quiet Title. OUTLINE TABLE OF CONTENTS.— VOL. I. Chapter Lin. liv. LV. LVI. LVII. LVIII. Actions to determine adverse claims to real property. Actions respecting mining claims. Partition of real property. Usurpation of an office or a franchise. — Quo warranto. Actions against steamers, vessels, and boats. Contribution between joint debtors. TITLE X. — Special Proceedings of a Civil Nature. LIX. LX. LXI. LXII. LXIII. LXIV. LXV. LXVI. LXVII. LXVIII. LXIX. LXX. LXXI. LXXII. LXXIII. LXXIV. TITLE XI.- LXXY. LXX VI. LXXVII. LXXVIII. LXXIX. LXXX. LXXXI. LXXXTI. WCKXIII. Review or certiorari. Mandamus. Prohibition. Election contests. Submitting controversy without action. — Agreed case. Forcible entry and unlawful detainer. Foreclosure of mechanics' liens. Voluntary dissolution of corporations. Eminent domain. Escheated estates. Change of name. Arbitration and award. Actions by and against executors or administrators. Contests in probate. Actions to determine heirship and interest in estate. Miscellaneous special proceedings. — Guardians. — Sole traders. -Actions relating to Real Property and Rights Incident Thereto. Actions relating to covenants, title, and possession. Builders' contracts. Vendor and vendee. Landlord and tenant. Ejectment. Trusts and trustees. Appraisal of homesteads. Water-rights and riparian owr.eri. Irrigation and reclamation. ANALYTICAL TABLE OF CONTENTS VOLUME II TITLE XII. — Actions Founded upon Contract. CHAPTER LXXXIV.— Sale and Warranty. Prge § 309. Code provisions 11:40 § 310. Complaints [or petitions] 1240 Form No. 607. For breach of warranty of title 1240 Form No. 608. On warranty of note 1241 Form No. 609. For breach of warranty as to judgment 1241 Form No. 610. For breach of warranty on sale by sample.... 1242 Form No. 611. For breach of warranty of quality of fruit-trees 1242 Form No. 612. Against a foreign corporation, to rescind a con- tract for breach of warranty of quality, and to recover part of purchase price paid 1244 Form No. 613. For breach of warranty on sale of work animals 1245 Form No. 614. For breach of warranty on sale of stallion.... 1246 Form No. 615. For breach of warranty of fitness for designated purpose 1246 § 311. Answers 1247 Form No. 616. Defense of denial of warranty 1247 Form No. 617. Denial of breach of warranty 1247 Form No. 618. Counterclaim on breach of warranty 1247 § 312. Annotations 1248 CHAPTER LXXXV. — Breach of Contracts of Sale and Purchase, and of Miscellaneous Contracts. § 313. Code provisions 1249 § 314. Complaints [or petitions] 1251 Form No. 619. For breach of contract of sale and to recover for goods sold 1251 Form No. 620. For breach of contract to furnish engine and engineer at the opening of threshing season 1252 Form No. 621. For breach of contract in furnishing irrigating plant 1253 Form No. 622. Upon contract to purchase stock in default of corporation to pay dividends 1254 Form No. 623. For breach of an option contract to repurchase stock 1255 Form No. 624. For breach of contract for purchase of fruit 1256 (vii) viii ANALYTICAL TABLE OF CONTENTS.— VOL. II. Page Form No. 625. Averments as to damages for breach of con- tract to purchase oil 1258 § 315. Answers 1259 Form No. 626. Defense of non-compliance with contract 1259 Form No. 627. Defense of coverture of the defendant 1259 Form No. 628. Defense of breach of contract to feed and care for animals, and cross-complaint for damages 1259 § 316. Judgment [or decree] 1261 Form No. 629. For plaintiff. — Damages for breach of contract to purchase 1261 § 317. Annotations 1261 CHAPTER LXXXVI.— Work and Services. i 318. Complaints [or petitions] 1264 Form No. 630. For work and services. (Common form.) 1264 Form No. 631. To recover balance upon an executed contract for services 1265 Form No. 632. By employee against employer, for failure to fulfil contract of employment 1265 Form No. 633. By employer against employee, for damages caused by inefficient services 1266 Form No. 634. Against employee, for refusal to serve 1266 Form No. 635. By auctioneer, upon an account for work and services 1267 Form No. 636. For work, etc., comprising different items 1267 Form No. 637. For services rendered by husband and wife 1268 Form No. 638. By machinist, for services and materials fur- nished 1269 Form No. 639. By physician, for services 1269 Form No. 640. On builders' contract, with claim for extra work for alterations 1270 Form No. 641. By attorneys, for services 1270 Form No. 642. By surviving partner of a law firm, to recover conditional and reasonable fee for legal serv- ices. (Pleading, also, stated account.) 1271 Form No. 643. By parent, for services of minor child 1273 Form No. 644. Upon individual and assigned claims for serv- ices 1273 § 319. Answers 1274 Form No. 645. Defense where damages exceed alleged value of services. — Action upon assigned claims for reasonable services of a physician 1274 Form No. 646. Defense of performance 1275 Form No. 647. Denial of offer to serve 1276 Form No. 648. Defense of special denial, and accounting and payment 1276 ANALYTICAL TABLE OF CONTENTS.— VOL. II. u CHAPTER LXXXVI I.— Actions for Debt.— Goods Sold and Delivered. Pag« | 320. Complaints [or petitions] • 1277 Form No. 649. Action for debt. (Common form.) 1277 Form No. 650. By partnership, for goods sold and delivered.. 1278 Form No. 651. For the reasonable value of goods sold 1279 Form No. 652. To recover for goods delivered to third person at defendant's request 1279 Form No. 653. To recover where credit was given 1279 Form No. 654. For balance on goods sold and delivered at an agreed price 1280 Form No. 655. To recover interest on a balance due on an ac- count stated 1280 Form No. 656. Against foreign corporation, on an account stated for debt 1281 Form No. 657. Against husband and wife, for goods sold to wife for her separate estate 1281 Form No. 658. By an assignee, for the price of stock and fix- tures of a store, payable in instalments 1282 Form No. 659. On an assigned debt due to a partnership 1282 Form No. 660. For goods sold and delivered to a partnership, and to partner as individual 1283 jlai. Answers 1284 Form No. 661. Denial of plaintiff's title 1284 Form No. 662. Defense that credit is unexpired 1284 Form No. 663. Defense reducing value [or amount promised], and pleading payment [or offer to pay] 1284 Form No. 664. Averments in defense as to agreement to take note in part payment 1285 Form No. 665. Defenses — (1) general denial, (2) former judg- ment 1285 Form No. 666. Defenses — (1) denial of account stated, (2) de- nial of indebtedness 1286 S 322. Annotations 1286 CHAPTER LXXXVIII.— Money Had and Received.— Involuntary Trusts. 8 323. Complaints [or petitions] 1289 Form No. 667. For money had and received. (Common form.) 1289 Form No. 668. On assigned claim for money had and received. etc.— Statement of cause in separate counts 1289 Form No. 669. For recovery back of a wager 1290 Form No. 670. To recover specific moneys lost by a servant in gambling 1290 5 324. Answers 1292 Form No. 671. Denial of receipt of moneys 1292 Form No. 672. Defense of accounting and payment 1292 •5 325. Annotations 129? Jury's PI.- -79b. x ANALYTICAL TABLE OF CONTENTS.— VOL. II. CHAPTER LXXXIX.— Money Lent. Page § 326. Complaints [or petitions] 1294 Form No. 673. For money lent. (Common form.) 1294 Form No. 674. By assignee of lender against borrower 1294 § 327. Answers 1295 Form No. 675. Denial of loan 1295 Form No. 676. Defense that money was paid in settlement of an antecedent debt 1295 CHAPTER XC. — Money Paid for the Benefit of Another, and on Implied Contracts. § 328. Complaints [or petitions] 1296 Form No. 677. Money paid to third person upon defendant's promise to repay 1296 Form No. 678. To recover money overpaid by mistake 1296 Form No. 679. By bank, to recover attorney's fees and ex- penses incurred against a party who fraudu- lently obtained a draft 1297 Form No. 680. By landlord against tenant, for repayment of tax 1298 Form No. 681. By endorser who has paid part of note 1298 Form No. 682. By maker of accommodation note who has paid the same 129& Form No. 683. For repayment of money after judgment re- versed 1299 CHAPTER XCI. — Hiring of Personal Property. § 329. Complaints [or petitions] 1300 Form No. 684. For hire of personal property 1300 Form No. 685. For hire of furniture, with damages for ill-usage 1300 Form No. 686. For hire of piano-forte 1301 CHAPTER XCII. — Hotelkeepers or Innkeepers. § 330. Code provisions 1301 § 331. Complaints [or petitions] 1308 Form No. 687. Against an innkeeper, for loss of baggage 1308 Form No. 688. To recover for loss of pocket-book containing money 1309 Form No. 689. Against innkeeper, for refusal to receive and lodge guest 1309 Form No. 690. By innkeeper, for board and lodging 1310 § 332. Answers 1310 Form No. 691. Defense that plaintiff was not a guest 1310 Form No. 692. Defense where moneys [or other valuables] lost were not deposited with the innkeeper for safe-keeping 1310- ANALYTICAL TABLE OP CONTENTS.— VOL. II. x i CHAPTER XCIII.— Bailment or Deposit. Pag» S 333. Code provisions 1311 § 334. Complaint [or petition] 1318 Form No. 693. For damages against a bailee of goods 1318 S 335. Answers 1318 Form No. 694. Denial of bailment 1318 Form No. 695. Defense that thing deposited is held as a pledge 1319 CHAPTER XCIV.— Partnership and Accounting. § 336. Complaints [or petitions] 1320 Form No. 696. For the dissolution of a partnership, and for an accounting and receivership 1320 Form No. 697. For an accounting after dissolution 1321 Form No. 698. To restrain late partner from continuing busi- ness 1322 Form No. 699. By one partner against another, for breach of agreement to pay firm debts 1322 § 337. Annotations 1323 CHAPTER XCV.— Agency. § 338. Complaints [or petitions] 1325 Form No. 700. By a foreign corporation against its agent and manager, for an accounting 1325 Form No. 701. By real estate agent, for commission 1328 Form No. 702. By real estate agent, for commissions for sale executed 1329 Form No. 703. Upon special contract to protect agent in his right to commissions 1329 § 339. Answers 1331 Form No. 704. Defense denying agency 1331 Form No. 705. Defense based upon special contract as to com- missions 1331 Form No. 706. Defense including counterclaim for damages for disobeying principal's orders in regard to stock transactions 1331 § 340. Annotations 1333 CHAPTER XCVI.— Insurance. S 341. Complaints [or petitions] 1336 Form No. 707. Upon fire insurance policy. (Common form.) . . 1336 Form No. 708. By mortgagee as assignee of the policy 1337 Form No. 709. Upon fire insurance policy. — Total loss 1337 Form No. 710. Upon fire insurance policy. — With averments as to waiver of written statement 1339 Form No. 711. On agreement to insure and give policy 1342 Xll ANALYTICAL TABLE OF CONTENTS.— VOL. II. Pag« Form No. 712. By executor, on life policy 1343 Form No. 713. By assignee, in trust for wife of insured 1344 Form No. 714. By wife, partner, or creditor of insured 1344 Form No. 715. Interpleader to determine beneficial interest in life insurance policy 1345 Form No. 716. On a valued marine policy 1347 Form No. 717. On open marine policy 1348 Form No. 718. On vessel lost by perils of tbe sea 1349 Form No. 719. For partial loss and contribution. — Marine policy 1350 Form No. 720. Allegation of renewal 1350 Form No. 721. Averment where plaintiff purchased the prop- erty after insurance 1351 Form No. 722. Averment of waiver of condition 1351 S 342. Answers 135i Form No. 723. Denial of policy 1351 Form No. 724. Denial of plaintiff's interest 1351 Form No. 725. Defense based upon denial of loss 1351 Form No. 726. Defense of misrepresentation and concealment 1352 Form No. 727. Defense setting forth "fallen building" clause in action upon fire insurance policy 1352 Form No. 728. Defense of overinsurance without consent of insurer 1352 Form No. 729. Defenses — (1) denial of furnishing proofs of death, (2) denial of indebtedness, (3) denial of waiver of conditions. — In general defense of forfeiture of policy for non-payment of premium 1353 Form No. 730. Transfer without insurer's consent 1354 Form No. 731. Defense that a fraudulent account of loss was given 1354 Form No. 732. Defense that risk was extra-hazardous 1354 Form No. 733. Denial of loss from peril or risk insured against 1355 Form No. 734. Defense that vessel was unseaworthy 1355 S 343. Annotations 1356 CHAPTER XCVII. — Negotiable Instruments. S 344. Complaints [or petitions] 1360 Form No. 735. By first endorsee against maker 1360 Form No. 736. By subsequent endorsee against maker 1361 Form No. 737. By first endorsee against first endorser 1361 Form No. 738. By subsequent endorsee against immediate endorser 1361 Form No. 739. By subsequent endorsee against first endorser 1361 Form No. 740. By subsequent endorsee against all prior parties 1362 Form No. 741. On note wrongly dated 1362 ANALYTICAL TABLE OF CONTENTS— VOL. II. x iii Page Form No. 742. On sight note I 362 Form No. 743. By domestic corporation, payee, against foreign corporation 1363 Form No. 744. By payee as receiver against partners 1363 Form No. 745. By partners on note payable to firm 1363 Form No. 746. By payee against surviving partner 1364 Form No. 747. Averments as to partnership promissory note endorsed to plaintiffs 1364 Form No. 748. By partners on protested promissory note 1365 Form No. 749. On note signed by agent 1366 Form No. 750. Upon a promissory note executed by an agent of a partnership 1366 Form No. 751. Upon a joint and several promissory note 1367 Form No. 752. On note executed in another state 1367 Form No. 753. By payee of bill against acceptor for non-pay- ment 1368 Form No. 754. By payee of bill against drawer after non- acceptance 1368 Form No. 755. For non-payment of bill payable on specific date 1368 Form No. 756. By assignee of bill payable out of particular fund 1369 Form No. 757. By payee against drawee and acceptor 1369 Form No. 758. By payee, on bill accepted for honor 1370 Form No. 759. By first endorsee of bill against acceptor 1370 Form No. 760. By endorsee of bill against first endorser 1371 Form No. 761. By remote endorsee against drawer and en- dorser for non-acceptance 1371 Form No. 762. By subsequent endorsee of bill against first endorser 1372 Form No. 763. By subsequent endorsee of bill against inter- mediate endorser 1372 Form No. 764. By subsequent endorsee of bill against last endorser 1372 Form No. 765. By first endorsee of bill against all prior parties 1373 Form No. 766. By subsequent endorsee against all prior parties 1373 Form No. 767. Against a bank upon acceptance, followed by refusal to pay check 1374 Form No. 768. Upon an accepted and assigned draft 1374 Form No. 769. By payee of check against drawer 1375 Form No. 770. By endorsee or bearer of check against drawer 1375 Form No. 771. By endorsee or bearer of check against drawer and endorser 1376 Form No. 772. Omission to give notice excused 1376 XIV ANALYTICAL TABLE OF CONTENTS.— VOL. II. Page fi 346. Answers 1376 Form No. 773. Defense of payment before endorsement 1376 Form No. 774. Defense of no consideration 1377 Form No. 775. Defenses of want of consideration and fraud. .. 1377 Form No. 776. Defense of no consideration based upon false warranty of goods sold 1378 Form No. 777. Defense that note was executed for a pre-exist- ing indebtedness, and endorsed by an officer of a corporation without consideration 1379 Form No. 778. Defense of fraud in procuring note 1379 Form No. 779. Defense of mistake in amount of note 1380 Form No. 780. Defense that acceptance was for accommoda- tion 1380 Form No. 781. Defense that defendant was a married woman, and signed the note as surety only for her husband 1380 Form No. 782. Defense of unauthorized and fraudulent accept- ance 1381 Form No. 783. Defense of alteration of instrument. (In gen- eral.) 1381 Form No. 784. Defense based upon material alteration in note by changing the name of the payor 1381 Form No. 785. Defense that note was given for losses sus- tained by sale of "options on 'change," a ficti- tious and gambling transaction 1382 Form No. 786. Defense of usury in making note 1382 Form No. 787. Defenses— (1) denials, (2) dishonoring of drafts due to acts of plaintiff, (3) that value of property was offset by value of drafts, (4) payment, (5) wrongful diversion of surplus money which should have been applied to payment, (6) non-observance of instructions and failure to enforce lien, (7) failure to de- liver agreed security. — Action upon guaranty of drafts with bills of lading attached J3?3 Form No. 788. Action upon guaranty of drafts with bills of lading attached 1390 Form No. 789. Denial of endorsement 1393 Form No. 790. Denial of acceptance 1393 Form No. 791. Denial of acceptance, presentment, and protest 1393 Form No. 792. Denial of presentment 1394 Form No. 793. Denying excuse for non-presentment 1394 Form No. 794. Denial of notice 1394 Form No. 795. Counterclaim in action upon promissory note.. 1394 | 346. Annotations 1396 ANALYTICAL TABLE OF CONTENTS.— VOL. II. XV CHAPTER XCVIII.— Guaranty and Suretyship. Pag* J 347. Complaints [or petitions] 1399 Form No. 796. By surety, for money paid on undertaking on appeal 1399 Form No. 797. By surety, on lease, against principal 1400 Form No. 798. On guaranty of antecedent debt 1401 Form No. 799. On agreement to answer for price of goods sold to a third person 1401 Form No. 800. Against principal and sureties, on contract for work 1402 Form No. 801. Against guarantor of mortgage, to recover fore- closure deficiency 1402 Form No. 802. By surety against principal, for indemnity 1403 Form No. 803. Against surety, for payment of rent 1404 Form No. 804. Upon original obligation of a promisor, to repay moneys advanced to another upon the order of the promisor, the order itself being lost. . 1404 Form No. 805. Against guarantors of a promissory note 1406 8 348. Answers 1408 Form No. 806. Defense that guarantor had no notice of non- payment of note until after insolvency of maker 1408 Form No. 807. Defense that sureties signed notes without con- sideration, and at the instance of the plaintiff only 1409 CHAPTER XCIX.— Chattel Mortgages and Pledges. § 349. Code provisions 1410 § 350. Complaints [or petitions] 1410 Form No. 808. For foreclosure of chattel mortgage. (Common form.) 1410 Form No. 809. To foreclose chattel mortgage for default in making payments of instalments, and pray- ing for appointment of receiver 1411 Form No. 810. For foreclosure of pledge 1413 Form No. 811. To recover for loss of pledge 1413 Form No. 812. To recover for injury to pledge 1414 Form No. 813. By pledgeor of note as collateral, against pledgee 1414 Form No. 814. For an accounting concerning pledged goods, and for an injunction restraining the sale of goods where the amount due is in dispute 1415 S 351. Judgment [or decree] 1415 Form No. 815. On foreclosure of chattel mortgage and order of sale, and appointing commissioner 1415 5 352. Annotations 1417 xvi ANALYTICAL TABLE OF CONTENTS.— VOL. II. CHAPTER C. — Bonds and Undertakings, and Actions Thereon. Page § 353. Form of bonds, endorsements, etc 1418 Form No. 816. Official bond. (Common form.) 1418 Form No. 817. Official bond of city clerk 1419 Form No. 818. Approval of bond, endorsed thereon 1420 Form No. 819. Oath of officer on qualifying 1420 Form No. 820. Exception to sureties on [bail] bond 1420 Form No. 821. Notice of justification of sureties on [bail] bond 1421 § 354. Forms of procedure where leave to sue an officer of the court must first be obtained 1421 Form No. 822 Petition for permission to bring an action upon the bond of an executor [or administrator] . . 1421 Form No. 823. Order granting leave to sue on the bond of an executor [or administrator] 1422 § 355. Complaints [or petitions] 1422 Form No. 824. On bond for the unconditional payment of money. (Common form.) 1422 Form No. 825. By surviving obligee on joint bond 1423 Form No. 826. On bond other than for payment of money.... 1423 Form No. 827. On bond for the fidelity of an employee 1423 Form No. 828. Against surety company on appeal bond 1424 Form No. 829. Undertaking entered into by surety company on appeal from justice court from judgment directing payment of money. (Exhibit A to form No. 828) 1425 Form No. 830. On appeal bond given in forcible entry and de- tainer proceedings 1426 Form No. 831: On bond given in replevin 1427 Form No. 832. On supersedeas bond 1429 S 356. Answer 1430 Form No. 833. Defense of failure of consideration 1430 § 357. Annotations 1430 CHAPTER CI. — Subscription Agreements. § 358. Complaints [or petitions] 1432 Form No. 834. On a subscription agreement. (In general) .... 1432 Form No. 835. On subscription agreement for the building of a church 1433 { 359. Answers 1434 Form No. 836. Defense of denial of execution of subscription agreement 1434 Form No. 837. Defense of fraud in obtaining agreement 1434 Form No. 838. Defense of non-performance of conditions upon which the subscription was given 1434 ANALYTICAL TABLE OF CONTENTS.— VOL. IL xvii CHAPTER CM. — Charter-Party and Maritime Agreements. Page { 360. Complaints [or petitions] 1435 Form No. 839. By ship-owner against charterer, for freight. . . . 1435 Form No. 840. By ship-owner, for damages and demurrage for failure to load goods on ship 1436 Form No. 841. For damages for abandoning voyage 1436 CHAPTER CI II. — Breach of Promise of Marriage. § 361. Complaints [or petitions] 1437 Form No. 842. For breach of promise of marriage 1437 Form No. 843. For marriage with another 1438 § 362. Answers 1438 Form No. 844. Denial of promise 1438 Form No. 845. Denial of breach 1438 Form No. 846. Defense alleging bad character of plaintiff 1438 CHAPTER CIV. — Actions on Judgments. § 363. Leave to sue upon a judgment 1439 Form No. 847. Notice of motion for leave to sue upon judg- ment 1439 Form No. 848. Affidavit accompanying application for leave to sue upon a judgment 1440 Form No. 849. Order granting leave to sue upon a judgment. . 1441 § 364. Complaints [or petitions] 1441 Form No. 850. On Judgment wholly unpaid. (Common form.) 1441 Form No. 851. On judgment partially satisfied 1442 Form No. 852. On judgment for deficiency after foreclosure sale 1442 Form No. 853. On judgment assigned 1443 Form No. 854. On foreign judgment of court of general juris- diction 1444 Form No. 855. On foreign judgment of inferior tribunal 1444 § 365. Answers 1445 Form No. 856. Defense of payment 1445 Form No. 857. Defense based upon vacation of judgment 1445 Form No. 858. Defense that judgment was obtained by fraud. . 1445 Form No. 859. Defense of invalidity of foreign judgment 1446 Form No. 860. Defense of invalidity of judgment against non- resident 1446 { 366. Annotations 1447 xviii ANALYTICAL TABLE OF CONTENTS.— VOL. II. TITLE XIII.— Actions for Negligence. CHAPTER CV. — Employers' Liability Cases, and Actions against Employees. Page fi 367. Complaints [or petitions] 1449 Form No. 861. By employee against railroad company, for damages resulting from injuries sustained in operation of defective machinery 1449 Form No. 862. By servant, to recover damages for personal injuries sustained from negligence of em- ployer in requiring performance of labor with which the servant was not familiar 1450 Form No. 863. Under employers' liability act 1451 Form No. 864. By employer, for servant's negligence 1454 Form No. 865. By employer, for repayment of money advanced for services 1454 S 368. Answers 1455 Form No. 866. Defense based upon failure of plaintiff to give notice prescribed by statute as condition precedent to action 1455 Form No. 867. Denial, and defense of contributory negligence and assumed risk 1456 Form No. 868. Defenses — (1) contributory negligence of plaint- iff, (2) negligence of fellow-servant of plaintiff 1457 § 369. Annotations 1458 CHAPTER CVI. — Negligence of Various Persons Owing a Contractual Duty. § 370. Complaints [or petitions] 1461 Form No. 869. Against attorney for negligent prosecution of suit 1461 Form No. 870. Against attorney, for negligent defense of an action 1462 Form No. 871. Against an agent, for carelessly selling to an insolvent 1463 Form No. 872. Against an agent, for negligent delay in the sale of goods 1463 Form No. 873. Against negligent bailee 1463 Form No. 874. Against a physician, for malpractice. 1464 Form No. 875. Against a surgeon, for malpractice 1464 Form No. 876. For negligence of a dentist 1465 Form No. 877. For negligence of grocer in selling a dangerous explosive 1466 Form No. 878. By servant, for damages caused by vicious animal 1468 Form No. 879. To recover damages against abstracters of title for negligence in reporting upon title to real property 1469 ANALYTICAL TABLE OF CONTENTS.— VOL. II. XIX CHAPTER CVII. — Negligence of Carriers of Property or Messages. Page 5 371. Complaints [or petitions] 1472 Form No. 880. Against common carrier, for negligent loss of goods 1472 Form No. 881. To recover for goods injured in transit 1472 Form No. 882. For loss of baggage 1473 Form No. 883. For failure to collect on delivery 1473 Form No. 884. For failure to deliver at time agreed 1474 Form No. 885. Against marine carrier, for disregarding notice to keep goods dry 1474 Form No. 886. For negligence in loading cargo 1475 Form No. 887. For loss in unloading 1475 Form No. 888. For breach of contract by corporation to carry message 1476 S 372. Answers 1476 Form No. 889. Denial of contract of carriage 1476 Form No. 890. Denial that goods were received 1476 Form No. 891. Denial of loss and negligence 1476 Form No. 892. Averment that the contract was special 1477 Form No. 893. Defense that defendant is not a common carrier 1477 Form No. 894. Defense that goods were negligently packed by the plaintiff 1477 Form No. 895. Defense that goods were lost by unavoidable accident, etc 1477 Form No. 896. Defense setting forth stipulation as to value of property admitted to have been lost through negligence 1478 Form No. 897. Counterclaim for negligence in action by car- rier to recover freight money 1478 § 373. Annotations 1479 CHAPTER CVIII. — Negligence of Carriers. — Actions for Injuries to Passengers not Resulting in Death. § 374. Code provisions 1480 § 375. Complaints [or petitions] 1484 Form No. 898. Against street railway corporation for damages for personal injuries sustained by passenger through negligent and careless starting of car Form No. 899. Against common carrier for personal injuries resulting from wrongful ejection of passen- ger from street-car 1486 Form No. 900. For damages for forcible ejection from train. . . 1487 Form No. 901. For personal injuries suffered by a wife. — Join- ing of husband in the action 1489 Form No. 902. By passenger, for damages caused by negligent operation of an elevator 1491 5 376. Annotations 1492 XX ANALYTICAL TABLE OF CONTENTS.— VOL. II. CHAPTER CIX.— Death by Wrongful Act. Pag© S 377. Complaints [or petitions] 1494 Form No. 903. Against common carrier by representative of a decedent, for damages for wrongful death. — Decedent a passenger on defendant's train. . 1494 Form No. 904. By representative, for wrongful death caused by collision 1495 Form No. 905. By heir at law against street railway corpora- tion, for damages resulting from the death of a minor child caused by negligent opera- tion of street-cars 1496 Form No. 906. By husband and minor children, to recover damages for death of wife and mother of said minors 1498 $ 378. Replication 1500 Form No. 907. In action by administrator for wrongful death of passenger on overloaded street-car 1500 § 379. Judgment [or decree] 1501 Form No. 908. For plaintiff upon verdict 1501 § 380. Annotations 1502 CHAPTER CX. — Negligence of Carriers. — Actions by Persons other than Passengers. § 381. Code provisions 1507 § 382. Complaints [or petitions] 1521 Form No. 909. For damages for negligence of street railway company at street-crossing 1521 Form No. 910. For damages for negligence of steam railroad company at crossing 1522 Form No. 911. By pedestrian, for damages for personal in- juries caused by the negligence of a railroad company 1524 Form No. 912. Averment of petition for injuries to stock caused by neglect of railroad company to fence its road, as required by general statute 1525 Form No. 913. Against railroad company, for damages for the wanton killing of stock 1525 § 383. Answers 1526 Form No. 914. Defense based upon duty of the plaintiff to make [or maintain] cattle-fences 1526 Form No. 915. Defense based upon trespass by animals. — Action for injuries to stock, alleged to have been killed while on defendant's track 1527 § 384. Annotations 1528 ANALYTICAL TABLE OF CONTENTS.— VOL. II. xxi CHAPTER CXI. — Miscellaneous Cases of Negligence. Page 5 385. Code provisions 1530 f 386. Complaints [or petitions] 1530 Form No. 916. For negligent maintenance of electric-light plant and system of wires connected therewith.. 1530 Form No. 917. For damages caused by negligent breaking of a plate-glass window 1532 Form No. 918. For damages for personal injuries. — Negligence in maintaining excavation in highway 1532 Form No. 919. For negligently managing artificial waterway. 1533 Form No. 920. For negligently causing fire 1534 Form No. 921. For negligent navigation of boat 1534 Form No. 922. For injuries to sheep caused by ferocious dog. . 1534 Form No. 923. By guardian ad litem, for damages against owners of vicious animal 1535 Form No. 924. By next friend, for damages for personal in- juries caused by negligent shooting 1537 Form No. 925. For damages caused by waters from roof 1538 Form No. 926. For damages caused by falling snow and ice.. 153S Form No. 927. For negligent collision with carriage [or auto- mobile] 1539 § 387. Answers 1539 Form No. 928. Defense alleging plaintiff's own negligence 1539 Form No. 929. Denial of defendant's ownership of the thing causing injury 1539 Form No. 930. Denial of plaintiff's ownership of thing injured or destroyed 1540 9 388. Annotations 1540 TITLE XIV. — Actions for Wrongs. CHAPTER CXII.— Slander of Title. S 389. Complaint [or petition] 1547 Form No. 931. For slander of title. (Common form.) 1547 § 390. Annotations 1548 CHAPTER CXI 1 1. — Unlawful Monopolies and Conspiracies. 391. Complaints [or petitions] 1550 Form No. 932. For damages for conspiracy to injure business. 1550 Form No. 933. For damages for conspiracy to injure business of a butcher 1551 Form No. 934. Averment of damages for conspiracy of whole- sale merchants in restraint of trade 1553 Xiii ANALYTICAL TABLE OF CONTENTS.— VOL. II. Pa«© i 392. Answer 1:663 Form No. 935. Defense averring right to regulate the business of defendants to prevent ruinous competition! of rates, in action for alleged conspiracy of underwriters 1553 CHAPTER CXIV.— Boycotts and Unlawful Strikes. E 393. Complaints [or petitions] 1555 Form No. 936. Against labor union, to restrain interference with conduct of business 1555 Form No. 937. To enjoin a combination and conspiracy to boy- cott. — Known and fictitious parties sued 1560 § 394. Decree 1561 Form No. 938. In an action to enjoin a combination and con- spiracy to boycott 1561 CHAPTER CXV. — Injuries to Personal Property, and the Unlawful Detention Thereof. § 395. Complaints [or petitions] 1563 Form No. 939. For malicious injury to property 1563 Form No. 940. For wrongful detention of personal property... 1563 § 396. Answers 1564 Form No. 941. Denial of damage 1564 Form No. 942. Denial of taking or detention 1564 § 397. Annotations 1564 CHAPTER CXVI.— Fraud and Deceit. § 398. Code provisions 1566 I 399. Complaints [or petitions] 1567 Form No. 943. For cancelation of void contract on grounds of fraud and deceit 1567 Form No. 944. For fraud in obtaining goods on credit 1568 Form No. 945. For fraudulently procuring credit for another.. 1569 Form No. 946. Against a vendor, for deceit connected with the sale of land 1569 Form No. 947. To rescind contract for purchase of stock in- duced by fraud 1570 Form No. 948. For fraudulently inducing subscription to stock where device of a secret agreement is em- ployed 1572 Form No. 949. For fraudulently representing goods sold to be the property of the seller 1573 Form No. 950. To rescind contract of exchange for fraud 1573 Form No. 951. To recover property obtained by fraud and col- lusion, and adjudge plaintiffs owners thereof 1575 ANALYTICAL TABLE OF CONTENTS.— VOL. II. xxlii Pag» | 400. Answers 1B77 Form No. 952. Denial of fraud I 577 Form No. 953. Defense that the writing declared upon in the complaint departed from the oral agreement in substantial and material respects, and was entered into through the false and fraudu- lent representations of the plaintiff's agent. — Action to recover for goods sold and deliv- ered 1578 § 401. Order and decree 1579 Form No. 954. Order to show cause and preliminary injunc- tion. — Action to rescind contract for fraud. . 1579 Form No. 955. Judgment in action to rescind contract for purchase of stock induced by fraud 1580 8 402. Annotations 1581 CHAPTER CXVII. — Fraudulent Transfers and Assignments. — Creditors' Suits. § 403. Complaints [or petitions] 1584 Form No. 956. Creditors' suit, by one suing on behalf of him- self and others 1584 Form No. 957. Against debtor, to reach demands due him from third parties, and for appointment of receiver 1585 Form No. 958. Against judgment debtor and his assignee, to set aside fictitious assignment made to delay and defraud creditors 1586 Form No. 959. To set aside fraudulent conveyance of real estate made by judgment debtor 1587 Form No. 960. Against judgment debtor, to set aside fraudu- lent judgment and sale 1589 § 404. Answers 159 ° Form No. 961. Denying return of execution 1590 Form No. 962. Denying possession of property belonging to the debtor 1590 Form No. 963. Averment in defense that defendant has assets 1590 Form No. 964. Denial that conveyance was fraudulent 1590 Form No. 965. Defense that deed was made for a valuable con- sideration. — Action to set aside an alleged fraudulent conveyance 1591 § 405. Judgments [or decrees] 1592 Form No. 966. Confirming deed in action to set aside the same as an alleged fraudulent conveyance 1592 Form No. 967. Following order sustaining demurrer to com- plaint and refusal to amend. — Action in the nature of a creditor's bill 1593 § 406. Annotations 1593 XXIV ANALYTICAL TABLE OF CONTENTS.— VOL. II. CHAPTER CXVI 1 1.— Conversion and Trover. Pag« | 407. Complaints [or petitions] 1595 Form No. 968. For conversion. (Common form.) 1595 Form No. 969. Goods in defendant's possession 1596 Form No. 970. By assignee of claim, for conversion and dam- ages 1596 Form No. 971. By seller against fraudulent buyer of goods... 1596 Form No. 972. Goods taken from possession of bailee 1597 Form No. 973. For conversion of a promissory note 1597 Form No. 974. For conversion of a bond 1598 Form No. 975. By executor [or administrator], for conversion 1598 Form No. 976. Against an attorney, for conversion of money collected 1599 Form No. 977. Against warehouseman, for conversion and damages 1599 Form No. 978. For malicious conversion, and damages result- ing therefrom 1601 5 408. Answers 1602 Form No. 979. Denial of conversion 1602 Form No. 980. Denial of taking 1602 Form No. 981. Denial of ownership 1602 Form No. 982. Denial of assignment of cause of action 1602 § 409. Annotations 1603 CHAPTER CXIX. — Trade-Marks and Trade-Signs. § 410. Code provisions 1606 § 411. Complaint [or petition] 1612 Form No. 983. To restrain infringement of trade-mark and for damages 1612 § 412. Annotations 1613 CHAPTER CXX. — Actions under Civil Damage Acts. 5 413. Complaint [or petition] 1614 Form No. 984. For civil damages for selling intoxicating liquor to a minor son 1614 I 414. Annotations 1615 TITLE XV. — Provisional Remedies in Civil Actions. CHAPTER CXXI.— Arrest and Bail. | 415. Code provisions 1617 § 416. References to forms 1622 { 417. Annotations 1622 ANALYTICAL TABLE OF CONTENTS.— VOL. II. X XV CHAPTER CXXII.— Claim and Delivery of Personal Property.— Replevin. Pag« 5 418. Code provisions 1624 § 419. Affidavits, undertakings, etc 1633 Form No. 985. Affidavit for claim and delivery 1633 Form No. 986. Demand directed to the sheriff to take property 1633 Form No. 987. Undertaking for the return to the defendant of property taken in claim and delivery 1633 Form No. 988. Approval of undertaking by sheriff 1634 Form No. 989. Claim of property by third person, and de- mand for return thereof 1634 Form No. 990. Undertaking on behalf of plaintiff, given on claim made by third person to property at- tached 1634 Form No. 991. Undertaking to indemnify sheriff 1635 § 420. Verdicts, judgments, and executions 1635 Form No. 992. Verdict for the plaintiff. (In general.) 1635 Form No. 993. Verdict as to special interest and damages 1636 Form No. 994. Alternative judgment for plaintiff in replevin.. 1636 Form No. 995. Judgment for plaintiff in replevin. (In general.) 1637 Form No. 996. Execution in replevin 1637 S 421. Complaints [or petitions] 1638 Form No. 997. For claim and delivery of personal property... 1638 Form No. 998. Goods taken from possession of plaintiff's as- signor 1639 Form No. 999. To recover property severed from realty 1639 Form No. 1000. By married woman, to recover possession of separate personal property or value thereof. . 1640 § 422. Answers 1641 Form No. 1001. Defense of general denial 1641 Form No. 1002. Defense that title is in another than plaintiff. . 1642 Form No. 1003. Defense that defendant is part owner 1642 Form No. 1004. Defense that defendant is entitled to a lien on goods for storage [or freight] 1642 Form No. 1005. Defense by common carrier, claiming lien for services. — In replevin, by the United States of America, to recover goods and supplies transported 1643 Form No. 1006. Defense of lien for services for manufacturing 1644 Form No. 1007. Defense by sheriff. — Justification of taking under attachment 1644 Form No. 1008. Defenses — (1) that foreign corporation plaint- iff has not filed articles or designated resi- dent agent, (2) justification of the taking of outlawed and gambling devices, (3) specific denials of values, etc. — In replevin, by for- eign corporation 1646 9 423. Annotations 1648 Jury s PI. — 79c. XXVi ANALYTICAL TABLE OF CONTENTS.— VOL. II. CHAPTER CXXIII.— Injunction. Page § 424. Code provisions 1651 § 425. Complaints [or petitions] 1659 Form No. 1009. For injunction against waste 1659 Form No. 1010. To restrain negotiation of note 1660 Form No. 1011. To restrain threatened injury to an invaluable chattel 1660 Form No. 1012. To enjoin obstruction maintained by a rail- road corporation along a public highway. . . 1661 Form No. 1013. To enjoin claimants from asserting or claim- ing, except in present action, under alleged mechanics' liens 1662 9 426. Orders, decrees, etc 1663 Form No. 1014. Order to show cause, and interlocutory in- junction 1663 Form No. 1015. Temporary injunction pendente lite, condi- tioned on giving of bond by the plaintiff. . . 1664 Form No. 1016. Injunction pendente lite to restrain continu- ance of trespass 1666 Form No. 1017. Undertaking on injunction 1666 Form No. 1018. Order granting motion dissolving injunction. . 1667 Form No. 1019. Order dissolving or modifying injunction 1667 Form No. 1020. Judgment for defendant dissolving temporary injunction, etc., in action to restrain a church society from converting church property, misdirecting its use, etc 1668 § 427. Annotations 1669 CHAPTER CXXIV. — Attachment and Garnishment. § 428. Code provisions 1673 § 429. Affidavits 1688 Form No. 1021. For attachment against residents. (Common form — Alaska, Arizona, California, Hawaii, Idaho, Oregon, Utah.) 1688 Form No. 1022. For attachment against non-resident, upon a contract 1689 Form No. 1023. For attachment against resident. (Nebraska.) 1689 Form No. 1024. For attachment against non-resident, where the cause of action is to recover damages arising from an injury to property in the state, in consequence of fraud, negligence, or other wrongful act 1690 Form No. 1025. For attachment against non-resident, for un- liquidated damages ascertainable under a contract 1690 ANALYTICAL TABLE OF CONTENTS.— VOL. II. xxvii Pa«« Form No. 1026. For attachment against defendant about to leave the state with intent to defraud cred- itors 1691 f 430. Undertakings 1692 Form No. 1027. Undertaking on attachment 1692 Form No. 1028. Oath of sureties endorsed upon or attached to the foregoing undertaking 1693 Form No. 1029. Undertaking given to procure an order to dis- charge an attachment 1693 § 431. Writ, certificates, return, etc 1694 Form No. 1030. Writ of attachment 1694 Form No. 1031. Return of sheriff to writ of attachment 1695 Form No. 1032. Notice of garnishment [or attachment] of moneys [etc.] owing [or belonging] to de- fendant 1695 Form No. 1033. Certificate by sheriff of execution of writ of attachment in garnishment proceeding.... 1695 Form No. 1034. Answer of garnishee to writ 1696 Form No. 1035. Receipt in satisfaction of claim, and directing release of goods attached 1696 § 432. Motions and orders 1696 Form No. 1036. Motion to quash writ of attachment. (Special appearance.) 1696 Form No. 1037. Order releasing attachment 1697 Form No. 1038. Order discharging an attachment improperly or irregularly issued 1697 Form No. 1039. Order for the sale of attached property 1697 Form No. 1040. Order reviving proceedings against non-resi- dent defendant, and continuing attachment proceeding 169S § 433. Annotations 169S CHAPTER CXXV.— Receivers. 5 434. Code provisions 1702 § 435. Petitions and orders for leave to sue 1706 Form No. 1041. Petition for leave to sue a receiver 1700 Form No. 1042. Certificate of attorney as to merits 1707 Form No. 1043. Order granting leave to sue a receiver 1707 Form No. 1044. Petition of receiver for leave to sue 1707 Form No. 1045. Order authorizing receiver to sue 1708 § 436. Complaints [or petitions] 1709 Form No. 1046. By a receiver appointed by a court in an action 1709 Form No. 1047. By receiver of a mining corporation to recover assets belonging thereto 1710 Form No. 1048. Action against a receiver 1712 § 437. Annotations 1712 XXViii ANALYTICAL TABLE OF CONTENTS.— VOL. II. CHAPTER CXXVI.— Deposit in Court. Page § 438. Code provisions 1713 Form No. 1049. Motion to deposit money [or other personal property] in court 1714 Form No. 1050. Order for deposit in court, or the delivery to another party, of money or other property 1715 TITLE XVI. — Compensatory and Specific Relief. CHAPTER CXXVI I.— Damages. § 439. Nature and extent of compensatory relief - 1716 § 440. Interest as damages 1719 § 441. Damages for breach of contracts, generally 1722 § 442. Damages for breach of carriers' obligations 1724 § 443. Damages for breach of contracts relating to real property 1725 § 444. Damages for breach of contracts relating to personal property. . . 1728 § 445. Damages for wrongs 1730 § 446. Penal damages 1737 § 447. Annotations 1742 CHAPTER CXXVIII.— Penalties and Forfeitures. § 448. Code provisions 1744 § 449. Complaints [or petitions] 1753 Form No. 1051. For penalty. (General form.) 1753 Form No. 1052. For penalty for violation of ordinance of board of supervisors 1753 Form No. 1053. For penalty for sale of liquors without license 1754 Form No. 1054. Against witness for disobeying subpoena 1754 CHAPTER CXXIX. — Specific Performance. § 450. Code provisions 1756 § 451. Complaints [or petitions] 1760 Form No. 1055. For specific performance of an agreement to make a lease 1760 Form No. 1056. For specific performance of an agreement to exchange property 1760 Form No. 1057. By vendee, to compel specific performance of contract to convey real estate under which possession was given 1761 Form No. 1058. Against administrator of vendor's estate, for specific performance of contract made with decedent 1763 9 452. Cross-complaint [or cross-petition] 1765 Form No. 1059. By defendant, to quiet title against plaintiff who sues for specific performance 1765 ANALYTICAL TABLE OF CONTENTS.— VOL. H. xx i x Page | 453. Answers 1765 Form No. 1060. Denial of readiness to convey 1765 Form No. 1061. Denial of payment or tender 1766 Form No. 1062. Demand after plaintiff's tender 1766 Form No. 1063. Denial of title 1766 Form No. 1064. Denial of performance 1766 Form No. 1065. Defense of rescission of contract by agree- ment of the parties 1767 Form No. 1066. Defenses — (1) denials, (2) inadequate and un- fair consideration and fraudulent represen- tations. — Action for specific performance of contract to convey land 1767 Form No. 1067. Defenses — (1) that contract was not fair or reasonable, (2) withdrawal and rescission of contract. — Action relating to sale of mining property 1769 § 454. Judgments [or decrees] 1770 Form No. 1068. For plaintiff 1770 Form No. 1069. For defendant 1771 Form No. 1070. Decree quieting title of cross-complaiirant in an action commenced by plaintiff for spe- cific performance 1771 § 455. Annotations 1772 CHAPTER CXXX. — Revision or Reformation of Contracts. § 456. Code provisions 1775 § 457. Complaints [or petitions] 1776 Form No. 1071. For reformation of a deed for mistake. (Gen- eral form.) 1776 Form No. 1072. To correct and reform a deed to lands for mutual mistake 1776 Form No. 1073. To reform written instrument, and for specific performance of instrument as reformed.... 1778 § 458. Annotations 1780 CHAPTER CXXXI— Rescission. § 459. Code provisions 1782 § 46G. Complaints [or petitions] 1783 Form No. 1074. To rescind for fraud 1783 Form No. 1075. To rescind for mistake, and to recover pay- ment made in escrow. — Stating cause also in common count for money had and received 1784 Form No. 1076. Cross-complaint in action to rescind contract for purchase of real estate, and to recover portion of purchase price paid 17gg XXX ANALYTICAL TABLE OF CONTENTS.— VOL. II. Pago § 461. Answer 1788 Form No. 1077. Defense of no consideration, and of matters that would justify a decree of rescission 1788 § 462. Judgment [or decree] 1789 Form No. 1078. For defendant and cross-complainant. — Action to rescind contract for purchase of real es- tate, and to recover portion of purchase price paid 1789 § 463. Annotations 1790 CHAPTER CXXXII. — Cancelation of Instruments. § 464. Code provisions 1792 § 465. Complaints [or petitions] 1792 Form No. 1079. To annul a contract 1792 Form No. 1080. Supplemental complaint in action commenced by special administrators and continued by executors to quiet title and for cancelation of forged deed 1794 § 466. Answer 1799 Form No. 1081. Defense that instrument was executed under undue influence. — Action to cancel deed. . . . 1799 § 467. Judgments [or decrees] 1 800 Form No. 1082. Confirming deed, and quieting defendant's title thereunder. — Action to cancel deed alleged to have been executed under undue influence 1800 Form No. 1083. Annulling deed, and quieting plaintiff's title as against the same. — Action for cancela- tion of forged deed 1801 § 468. Annotations 1802 TITLE XVII.— Miscellaneous Civil Procedure. CHAPTER CXXXIII. — Summons and Citation. — Jurisdiction. § 469. Summons 1804 Form No. 1084. Judgment demanded. (California.) 1804 Form No. 1085. Alternative relief. (California.) 1804 5 470. Certificates, orders, etc 1805 Form No. 1086. Sheriff's certificate of service of summons. (Endorsed on original summons.) 1805 Form No. 1087. Notice of motion to quash summons or its service 1805 Form No. 1088. Order extending time to answer after decision on motion to quash ' 1806 Form No. 1089. Affidavit as basis of order for service by pub- lication 1806 ANALYTICAL TABLE OF CONTENTS.— VOL. II. xxxi Page | «?1. Citations, orders, etc 180? Form No. 1090. Citation. (Common form.) 1807 Form No. 1091. Order for citation to executor upon applica- tion by creditor 1807 Form No. 1092. Acknowledgment of service of citation 1808 Form No. 1093. Citation to executor and surviving widow to show cause why family allowance should not be reduced 1808 Form No. 1094. Order sustaining demurrer to petition and dis- charging citation 1809 § 472. Annotations 1 8 1° CHAPTER CXXXIV.— Change of Place of Trial or Venue, Generally.— Removal of Causes to Federal Courts. § 473. Procedure for change of venue in state courts 1813 Form No. 1095. Notice of motion for change of place of trial. . 1813 Form No. 1096. Motion for change of place of trial 1814 Form No. 1097. Demand for change of place of trial 1814 Form No. 1098. Affidavit of residence 1815 Form No. 1099. Affidavit of merits 1815 Form No. 1100. Affidavit of residence and of merits for change of place of trial 1815 Form No. 1101. Petition for change of venue 1816 § 474. Removal of cause from state to federal court 1817 Form No. 1102. Petition for removal of cause from state to federal court on the ground of diversity of citizenship 1817 Form No. 1103. Petition for removal where the action is brought by a citizen against an alien 1818 Form No. 1104. Petition for removal where a federal question is involved 181S Form No. 1105. Order of removal made by state court 1818 Form No. 1106. Bond on removal of action from state to fed- eral court 1819 § 475. Annotations I 819 CHAPTER CXXXV.— Appearance and Default, end Substitution of Attorneys. | 476. Appearances 1823 Form No. 1107. Notice of special appearance 1823 Form No. 1108. Notice of general appearance 1823 Form No. 1109. Acknowledgment of service 1823 5 477. Defaults 1824 Form No. 1110. Application for entry of default 1824 Form No. 1111. Clerk's entry of default of defendant for fail- ure to appear 1824 XXXij ANALYTICAL TABLE OF CONTENTS.— VOL. II. Pag« Form No. 1112. Stipulation to set aside judgment by default and to reopen cause 1824 Form No. 1113. Order on stipulation, setting aside default judgment 1825 § 478. Substitution of attorneys 1825 Form No. 1114. Notice of substitution of attorneys 1825 Form No. 1115. Consent to substitution of attorneys 1825 Form No. 1116. Acknowledgment of notice and service of sub- stitution 1825 § 479. Annotations 1 82& CHAPTER CXXXVI.— Notices, Motions, and Orders. § 480. Notice of pendency of action 1829 Form No. 1117. Common form 1829 § 481. Notices, generally 18 29 Form No. 1118. Notice of decision 1829 Form No. 1119. Notice of decision in favor of defendants and cross-complainant 1830 Form No. 1120. Notice of time of trial. (With waiver by plaintiff of trial by jury.) 1830 Form No. 1121. Notice to produce documents for use on the trial 1830 Form No. 1122. Notice of motion to dismiss action 1831 Form No. 1123. Notice of overruling demurrer and granting time to answer 1831 § 482. Orders i832 Form No. 1124. Order extending time to plead 1832 Form No. 1125. Order assigning cause 1832 Form No. 1126. Order denying or overruling motion in general 1832 Form No. 1127. Order on motion to strike pleading from the files 1832 Form No. 1128. Order granting time to answer upon overruling demurrer 1833 Form No. 1129. Order granting time to amend after sustaining demurrer 18S3 Form No. 1130. Order to show cause 1833 Form No. 1131. Order suspending power of executor 1834 Form No. 1132. Restraining order to executor, and order to show cause 1834 Form No. 1133. Order revoking letters testamentary 1835 § 483. Annotations 183& ANALYTICAL TABLE OF CONTENTS.— VOL. II. xxxiii CHAPTER CXXXVI I.— Affidavits, Depositions, and Stipulations. Page S 484. Affidavits 1837 Form No. 1134. Affidavit of service of notice on a person not an attorney I 837 Form No. 1135. Affidavit of service of notice by mail 1837 Form No. 1136. Affidavit of service of notice on an attorney absent from his office 1838 Form No. 1137. Affidavit of service of notice on an attorney at his residence when his office is closed 1838 Form No. 1138. Affidavit of service of notice on an attorney at office in charge of a clerk or other person. . 1839 Form No. 1139. Affidavit of service of summons on several defendants. (Endorsed on original sum- mons.) 1839 Form No. 1140. Affidavit of service of citation 1840 §485. Depositions 1840 Form No. 1141. Stipulation of counsel to take depositions 1840' . Form No. 1142. Affidavit upon taking deposition of defendant as witness for plaintiff 1841 Form No. 1143. Affidavit for taking the deposition of a resi- dent witness 1841 Form No. 1144. Affidavit and application for commission for the taking of the deposition of a non-resi- dent witness 1842 Form No. 1145. Notice of taking of deposition 1842 Form No. 1146. Commission to take deposition of witness 1843 Form No. 1147. Instructions to commissioner 1843 Form No. 1148. Deposition of witness. (To be annexed to the commission.) 1846- § 486. Stipulations 1847 Form No. 1149. Waiver of answer 1847 Form No. 1150. Stipulation to transfer cause to another de- partment 1847 Form No. 1151. Stipulation to dismiss appeal 1848 Form No. 1152. Stipulation as to facts 1848 Form No. 1153. Stipulation to restore and file original com- plaint destroyed by fire 1849 § 487. Annotations 1849 ' CHAPTER CXXXVIII. — Inspection of Writings and Bill of Particulars. Form No. 1154. Notice of motion for an order for inspection of a paper [or account, or entries], and for a copy thereof 1850' Form No. 1155. Affidavit for order for inspection of account [or of a paper], and to take a copy thereof. 1851 XXXiV ANALYTICAL TABLE OF CONTENTS.— VOL. II. Pag« Form No. 1156. Demand to have inspection of an original instrument 1851 Form No. 1157. Demand for a copy of an account 1852 Form No. 1158. Order directing party to furnish bill of par- ticulars 1852 § 488. Annotations 1852 CHAPTER CXXXIX. — Trials, Witnesses, and Proceedings for Contempt. § 489. Trials 1854 Form No. 1159. Order for drawing trial jury 1854 Form No. 1160. Venire 1854 Form No. 1161. Notice of motion for trial of special issues by jury 1855 Form No. 1162. Order for trial of special issues by jury 1855 Form No. 1163. Minutes and certificate of drawing jury 1856 Form No. 1164. Order consolidating causes for purposes of trial 1857 Form No. 1165. Authorization to attorney to compromise pend- ing action 1857 Form No. 1166. Verdict 1858 § 490. Witnesses, and proceedings for contempt 1858 Form No. 1167. Civil subpoena 1858 Form No. 1168. Attachment against a witness for not obeying a subpoena 1859 Form No. 1169. Attachment for defaulting 1859 Form No. 1170. Affidavit in proceedings for punishing a con- tempt of court. (Common form.) 1860 Form No. 1171. Affidavit in proceedings for contempt. — Action at law to prevent usurpation of office 1860 Form No. 1172. Motion for warrant of arrest in proceedings for contempt in neglecting and refusing to obey a judgment 1861 Form No. 1173. Order to show cause, made on the filing of affidavit charging contempt 1861 Form No. 1174. Warrant of attachment to be issued in pro- ceedings to punish for a contempt of court. 1861 Form No. 1175. Recitals and judgment for a contempt of court committed in the presence of the court. .'. . 1861 Form No. 1176. Judgment in a proceeding for a contempt of court against a witness for refusing to answer a relevant and material question. . . . 1862 § 491. Annotations 1863 ANALYTICAL TABLE OF CONTENTS.— VOL II. XXXV CHAPTER CXL. — Nonsuit and Dismissal. Page Form No. 1177. Dismissal of action by plaintiff 1867 Form No. 1178. Stipulation of dismissal on compromise 1867 Form No. 1179. Order granting motions for nonsuit, and allow- ing additional time in which to prepare and serve bill of exceptions 1867 Form No. 1180. Judgment of nonsuit 1868 i 492. Annotations 1869 CHAPTER CXLI. — Findings and Judgment. § 493. Findings of fact and conclusions of law 1871 Form No. 1181. Findings of fact and conclusions of law 1871 Form No. 1182. Additional findings. — Action to quiet title, and for value of rents and profits, and for resti- tution 1872 § 494. Judgments 1874 Form No. 1183. Judgment for plaintiff by the court 1874 Form No. 1184. Judgment for defendant. (Common form.) . . 1875 Form No. 1185. Entry by clerk 1875 Form No. 1186. Judgment by the court on verdict for the plaintiff 1875 Form No. 1187. Judgment for plaintiff on verdict. (Entry by clerk.) 1876 Form No. 1188. Judgment of dismissal. (Entry by clerk.) 1876 Form No. 1189. Judgment of default. (Entry by clerk.) 1877 Form No. 1190. Notice of motion for judgment on the plead- ings 1877 Form No. 1191. Order sustaining demurrer without leave to amend, and granting motion for judgment on the pleadings 1878 Form No. 1192. Consent of plaintiff to reduction of judgment. 1878 Form No. 1193. Nunc pro tunc order reducing judgment 1879 Form No. 1194. Satisfaction of judgment for costs 1879 Form No. 1195. Amended judgment for defendant 1880 Form No. 1196. Order of sheriff's sale of real estate under judgment 1880 § 495. Confession of judgment without action 1881 Form No. 1197. Confession of judgment 1881 Form No. 1198. Entry of judgment confessed. (Annexed to the foregoing.) 1882 § 496. Annotations 1882 CHAPTER CXLI I. — Costs, Executions, and Writs. § 497. Costs 1886 Form No. 1199. Notice requiring security for costs 1886 Form No. 1200. Notice of motion to stay proceedings until security for costs be given 1887 XXX VI ANALYTICAL TABLE OF CONTENTS.— VOL. II. Pag» Form No. 1201. Memorandum of costs and disbursements on part of plaintiff [or defendant] 1887 Form No. 1202. Verification of the foregoing 1887 Form No. 1203. Acknowledgment of service of a copy of mem- orandum of costs. (Endorsed upon mem- orandum of costs.) 1888 § 498. Writs of execution, assistance, etc 1888 Form No. 1204. Writ of execution on judgment 1888 Form No. 1205. Writ of execution. (Corporation as judgment debtor.) 1889 Form No. 1206. Sheriff's return of execution unsatisfied. (An- nexed to foregoing writ.) 1890 Form No. 1207. Sheriff's return of execution unsatisfied. — Property claimed by third person 1890 Form No. 1208. Writ of execution for fees and costs 1891 Form No. 1209. Writ of execution. (On certified abstract of judgment of justice's court.) 1892 Form No. 1210. Writ of execution for deficiency on fore- closure 1893 Form No. 1211. Execution against real or personal property in the hands of an executor, etc 1894 Form No. 1212. Execution upon writ of restitution 1895 Form No. 1213. Writ of execution after remittitur filed 1896- Form No. 1214. Writ of assistance 1897 § 499. Elements of petition for an order requiring debtor of a judgment debtor to appear and answer 1898 § 500. Annotations 1899 CHAPTER CXLIII. — New Trials, Appeals [and Writs of Error]. § 501. New trials 1904 Form No. 1215. Notice of intention to move for new trial 1904 Form No. 1216. Notice of intention to move for a new trial, specifying grounds 1904 Form No. 1217. Notice of presentation of bill of exceptions for settlement 1905 Form No. 1218. Minute order denying motion for new trial... 1905 Form No. 1219. Court order denying motion -for new trial 1906 Form No. 1220. Conditional order granting new trial. (Minute entry.) 1906 Form No. 1221. Minute entry permitting amendment to notice of intention to move for new trial, and deny- ing motion for new trial upon amended notice 1906 Form No. 1222. Order dismissing motion for new trial for failure to prosecute 1907 Form No. 1223. Notice of order dismissing motion for new trial 1907 ANALYTICAL TABLE OF CONTENTS.— VOL. II. XXX Vll Page i 502. Appeals [and writs of error] in state courts 1908 Form No. 1224. Writ of error. (Hawaii statutory form.) 1909 Form No. 1225. Notice of appeal from judgment 1911 Form No. 1226. Notice of appeal from part of a judgment 1912 Form No. 1227. Notice of appeal from judgment and order denying motion for new trial 1912 Form No. 1228. Notice of appeal from judgment granting in- sufficient relief 1912 Form No. 1229. Notice of appeal from order denying motion for new trial 1913 Form No. 1230. Notice of appeal on questions of both law and fact from justice's court to superior court. (California.) 1913 Form No. 1231. Acknowledgment of service of notice of appeal 1914 Form No. 1232. Affidavit of mailing notice of appeal 1914 § 603. Undertakings on appeal 1915 Form No. 1233. Undertaking for costs and damages [or charges] on appeal. (California, Minnesota, Montana, Nevada, North Dakota, South Da- kota, Utah, Washington, Wisconsin) 1915 Form No. 1234. Justification of sureties upon undertaking. (Common form.) 1915 Form No. 1235. Acknowledgment of undertaking. (Under statutes requiring acknowledgment.) 1916 Form No. 1236. Undertaking by surety corporation 1916 Form No. 1237. Undertaking on appeal, to stay execution of money judgment 1916 Form No. 1238. Undertaking on appeal from judgment direct- ing payment of money in instalments 1917 Form No. 1239. Undertaking where judgment directs delivery of documents or other personal property. . . 1918 Form No. 1240. Undertaking where judgment directs sale or delivery of real property 1918 form No. 1241. Undertaking where appeal is had from order vacating writ of attachment or injunction. . 1919 § 504. Proceedings for writs of error in certain state courts 1919 Form No. 1242. Writ of error in civil action 1919 Form No. 1243. Bond for costs and damages on writ of error in civil action 1920 Form No. 1244. Supersedeas bond on writ of error in civil action 1921 Form No. 1245. Order staying proceedings 1921 § 505. Proceedings for writ of error to the supreme court of the United States 1922 Form No. 1246. Petition for writ of error 1922 Form No. 1247. Assignment of error on petition for writ 1923 Form No. 1248. Allowance of writ of error 1923 XXXviii ANALYTICAL TABLE OF CONTENTS.— VOL. II. Page Form No. 1249. Bond on writ of error 1924 Form No. 1250. Oath of sureties to foregoing bond 1924 Form No. 1251. Approval of bond (annexed thereto) 1925 Form No. 1252. Writ of error 1925 Form No. 1253. Citation upon writ of error 1926 §606. Miscellaneous orders, stipulations, and remittitur 1926 Form No. 1254. Order dispensing with undertaking on appeal from judgment or order denying new trial. (In probate.) 1926 Form No. 1255. Order fixing conditions and terms of under- taking on appeal from an intermediate order. (North Dakota, South Dakota, Wis- consin.) 1927 Form No. 1256. Waiver of undertaking on appeal 1928 Form No. 1257. Waiver of undertaking on appeal, and of de- posit in lieu thereof 1928 Form No. 1258. Stipulation as to correctness of transcript on appeal and undertakings on appeal filed. . . . 1928 Form No. 1259. Order dismissing appeal 1929 Form No. 1260. Order dismissing appeal from order denying motion for new trial for failure to file under- taking 1929 Form No. 1261. Order denying motion to dismiss appeal from the judgment 1929 Form No. 1262. Provisional order affirming judgment on appeal 1930 Form No. 1263. Order of supreme court as to exhibits. — Action to quiet title, and for value of rents and profits, and for restitution 1930 Form No. 1264. Stipulation consolidating various causes on appeal 1931 Form No. 1265. Remittitur 1931 | 507. Annotations 1932 CHAPTER CXLIV.— Certification of Public Records. Form No. 1266. Authentication of records and judicial proceed- ings of a court of record of a sister state or territory of the United States 1937 Form No. 1267. Authentication by copy of non-judicial records 1938 Form No. 1268. Certificate of presiding judge 1939 Form No. 1269. Certificate to genuineness of signature of superior judge. (Annexed to certificate as in the preceding form.) 1939 Form No. 1270. Authentication by copy of a judicial record. .. 1940 Form No. 1271. Authentication by copy of a judicial record of a foreign country 1940 Form No. 1272. Authentication of a document in a sister state or territory 1941 ANALYTICAL TABLE OF CONTENTS.— VOL. II. xxxix Page Form No. 1273. Authentication of a document in the office of a department of the United States. (An- nexed to copy of document.) 1942 Form No. 1274. Authentication of a public record of a private writing. (Annexed to copy of record.) 1942 Form No. 1275. Certified copy of order 1942 Form No. 1276. Certificate to signature and attestation of county clerk 1943 TITLE XVIII.— Quasi-Civil Proceedings. CHAPTER CXLV. — Habeas Corpus Proceedings. Form No. 1277. Petition for writ. (Common form.) 1944 Form No. 1278. Order directing writ to issue. (Common form.) 1945 Form No. 1279. Writ of habeas corpus. (Common form.) 1945 Form No. 1280. Return to writ of habeas corpus or certiorari other than official. (Common form.) 1946 Form No. 1281. Order for discharge of prisoner 1947 Form No. 1282. Order denying writ and remanding prisoner.. 1947 § 508. Annotations 1947 CHAPTER CXLVI. — Proceedings in Cases of Insanity, f 509. Charges of insanity and proceedings thereon. (Cal. Pol. Code, §§ 2168-2171.) 1948 Form No. 1283. Affidavit of insanity 1949 Form No. 1284. Warrant of arrest. (Insane person.) 1949 Form No. 1285. Certificate of arresting officer 1950 Form No. 1286. Certificate of medical examiners 1950 Form No. 1287. Judgment of insanity and order of commit- ment of insane person 1952 Form No. 1288. Statement of financial ability 1954 Form No. 1289. Clerk's certificate to affidavit, etc., judgment of insanity, order of commitment, etc. (Annexed to judgment.) 1954 CHAPTER CXLVII.— Disbarment of Attorneys. Form No. 1290. Petition for disbarment 1955 Form No. 1291. Verification of petition for disbarment. (Cali- fornia.) 1956 Form No. 1292. Order addressed to accused to appear and answer 1956 Form No. 1293. Demurrer or objections to accusation 1957 Form No. 1294. Judgment of disbarment where the accusation is based upon a conviction of a felony.... 1957 Form No. 1295. Judgment or order of suspension 1958 xl ANALYTICAL TABLE OF CONTENTS.— VOL. II. CHAPTER CXLVI 1 1.— Proceedings in Juvenile Courts. Page Form No. 1296. Petition for arrest and examination of a delin- quent minor, (California.) 1961 Form No. 1297. Citation to parent or custodian. (California.) 1961 Form No. 1298. Certificate of service of citation. (California.) 1962 Form No. 1299. Notice to parents, custodian, or guardian. (Utah.) 1962 Form No. 1300. Subpoena. (California.) 1963 Form No. 1301. Sheriff's certificate of service of subpoena. (California.) 1963 Form No. 1302. Commitment of dependent child. (California.) 1963 Form No. 1303. Commitment of delinquent child. (California.) 1964 Form No. 1304. Bench warrant. (California.) 1965 Form No. 1305. Order directing time of service of bench war- rant. (California.) 1965 Form No. 1306. Return endorsed upon bench warrant. (Cali- fornia.) 1965 Form No. 1307. Order admitting to bail. (California.) 1966 Form No. 1308. Order of commitment to school of industry. (From court of record, California.) 1966 Form No. 1309. Order of commitment to boys' school of indus- try. (From court of limited jurisdiction, California.) 1967 Form No. 1310. Affidavit on application for a permit for a minor child to work. (California.) 1968 Form No. 1311. Recommendation that permit issue 1969 Form No. 1312. Order granting permit 1*69 ADJUDICATED FORMS OF PLEADING AND PRACTICE Jury's P1.—7M. <»m TITLE XII. Actions Founded Upon Contract. Chapter LXXXIV. Sale and Warranty 1239 LXXXV. Breach of Contracts of Sale and Pur- chase, and of Miscellaneous Contracts. 1249 LXXXVI. Work and Services 1264 LXXXVIL Actions for Debt.— Goods Sold and Deliv- ered 1277 LXXXVIII. Money Had and Received. — Involuntary Trusts 1288 LXXXIX. Money Lent 1294 XC. Money Paid for the Benefit of Another, and on Implied Contracts 1296 XCI. Hiring of Personal Property 1300 XCII. Hotelkeepers or Innkeepers 1301 XCIIL Bailment or Deposit 1311 XCIV. Partnership and Accounting 1319 XCV. Agency 1324 XCVI. Insurance 1335 XCVII. Negotiable Instruments 1358 XCVIII. Guaranty and Suretyship 1399 XCIX. Chattel Mortgages and Pledges 1409 C. Bonds and Undertakings 1418 CI. Subscription Agreements 1432 CII. Charter-Party. — Maritime Agreements . . 1435 CIII. Breach of Promise of Marriage 1437 CIV. Actions upon Judgments 1439 CHAPTER LXXXIV. Sale and Warranty. Page 1 309. Code provisions 12 40 { 310. Complaints [or petitions] 1240 Form No. 607. For breach of warranty of title 1240 Form No. 608. On warranty of note 1241 Form No. 609. For breach of warranty as to judgment 1241 Form No. 610. For breach of warranty on sale by sample 1242 Form No. 611. For breach of warranty of quality of fruit-trees 1242 (1239) 1240 SALE AND WARRANTY. [Tit. XIL Form No. 612. Against a foreign corporation, to rescind a con- tract for breach of warranty of quality, and to recover part of purchase price paid 1244 Form No. 613. For breach of warranty on sale of work animals 1245 Form No. 614. For breach of warranty on sale of stallion 1246 Form No. 615. For breach of warranty of fitness for designated purpose 1246 5 311. Answers 1247 Form No. 616. Defense of denial of warranty 1247 Form No. 617. Denial of breach of warranty 1247 Form No. 618. Counterclaim on breach of warranty 1247 § 312. Annotations 1248 §309. CODE PROVISIONS. Sale defined. California, § 1721. Sale is a contract by which, for a pecuniary consideration, called a price, one transfers to another an interest in property. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 5079. North Dakota, Rev. Codes 1905, § 5394. 8outh Dakota, Rev. Codes 1903, C. C. § 1299. For agreements to sell and purchase, see ch. LXXXV. Warranty on sale by sample. California, § 1766. One who sells or agrees to sell goods by sam- ple, thereby warrants the bulk to be equal to the sample. (Kerr's Cyc. Civ. Code.) Th« following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered not* succeeding and the difference there shown: • Arizona, Laws 1907, p 229, § 16(a). Idaho, Rev. Codes 1909, 8 3325. Montana, Rev. Codes 1907, § 5106. North Dakota, Rev. Codes 1905, § 5420. South Dakota, Rev. Codes 1903, C. C. § 1325. a Arizona, Laws 1907, pp. 229, 235, § 16. (a) There is an implied warranty that the bulk shall correspond with the sample in quality. • • • (Enacted March 17, 1907.) §310. COMPLAINTS [OR PETITIONS]. FORM No. 607 — For breach of warranty of title. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That on the day of , 19 , at , the defendant sold and delivered to the plaintiff [state what], for the sum of $ , then paid him by the plaintiff. Ch. LXXXIV.] COMPLAINTS [OR PETITIONS].— FORMS. 1241 2. That by the said contract of sale it was understood by the plaintiff and defendant to be, and it was a part of the terms and con- sideration of said contract of sale, that the defendant had the lawful right and title to so sell and to transfer the ownership of said goods to the plaintiff. 3. That the defendant had in fact no title in or to or right to sell said goods, but the same belonged to one L. M., who thereafter, on the day of , 19 , demanded possession of the same from the plaintiff; that the plaintiff was compelled and did then deliver them up to L. M., and they were wholly lost to the plaintiff. 4. That by reason of the premises the plaintiff was misled and injured, to his damage in the sum of $ [Concluding part.] FORM No. 608 — On warranty of note. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That on the day of , 19 , the defendant, for a valu- able consideration, offered to pass to the plaintiff a promissory note, of which the following is a copy : [Copy of note], then and there war- ranting said note to have been made by the said L. M. 2. That the plaintiff, confiding in and relying upon said warranty, purchased said note of the defendant, and paid him therefor the sum of $ 3. That the said note was not made by said L. M., but that his name was forged thereto. 4. That by reason of the premises the plaintiff was misled and injured, to his damage in the sum of $ [Concluding part.] FORM No. 609 — For breach of warranty as to judgment. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , the defendant, for a valu- able consideration, duly assigned to the plaintiff a judgment which he had, on the day of , 19 , recovered in the court of the county of , for the sum of $ , in a certain action wherein Y. Z., the defendant herein, was plaintiff, and one L. M. was defendant. 1242 SALE AND WARRANTY. [Tit. XII. 2. That said assignment contained a covenant on the part of the defendant, whereby he warranted that there was due upon said judg- ment from the said L. M. the said sum of $ , with interest thereon from the day of , 19 . 3. That in truth, at the time of said assignment, said judgment had been paid in full to the defendant, and no part thereof was or now is due thereon. 4. That by reason of the premises the plaintiff was misled and in- jured, to his damage in the sum of $ [Concluding part.] FORM No. 610 — For breach of warranty on sale by sample. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That on the day of , 19 , the defendant sold to the plaintiff [state what], by producing to him a pretended sample thereof, and warranted said [article] to be equal in quality and description to such sample. 2. That said [article] was not equal in quality and description to* said sample, but, on the contrary, was greatly inferior in quality thereto. 3. That by reason of the premises the plaintiff was misled and injured, to his damage in the sum of $ [Concluding part.] FORM No. 611 — For breach of warranty of quality of fruit-trees. (In Murphy v. Stelling, 8 Cal. App. 702; 97 Pac. 672.) [Title of court and cause.] Plaintiff complains of defendants, and alleges : 1. That on or about the 25th day of February, 1894, the plaintiff applied to the defendants to purchase apricot trees of the number and variety hereinafter mentioned, and the defendants on said date sold and delivered to the plaintiff, 521 apricot trees, and then and there, at the time of said sale, represented and warranted to plaintiff that said trees were of the Blenheim variety. 2. That plaintiff relied solely upon the representations and war- ranty so made to him by defendants, as aforesaid, that said trees were of the Blenheim variety, and paid defendants therefor the sum and price by them demanded, to wit, the sum of $65. Ch. LXXXIV.] COMPLAINTS [OR PETITIONS].— FORMS. 1243 3. That plaintiff, on and about the 10th day of March, 1894, planted said trees upon land owned by him, and has continually from the date of said planting up to August, 1898, — that is to say, for a period of four years, — bestowed upon said trees, in the care thereof, great skill, attention, and proper cultivation. 4. That said trees did not bear fruit until in or about the month of August, 1898, and plaintiff then first discovered that 207 of said trees were not of the Blenheim variety, but that they were, and each of them was, of another and inferior and worthless variety, and of no value whatever to plaintiff; that plaintiff did not know, nor could he ascertain prior to the fruitage season of 1898, that said 207 trees were not of the Blenheim variety so purchased and paid for by him, and so represented and warranted by defendants as aforesaid, nor could he know or discover by ordinary diligence that they were not of said Blenheim variety prior to said fruitage season, and until in or about August of said last-named year. 5. That the land of plaintiff upon which said inferior and worth- less trees were planted, and upon which the same are now growing, is worth the sum of $1,000 less than said land would be worth were the said trees growing thereon of the Blenheim variety, which plaintiff supposed he had purchased, and which he had paid for as aforesaid. 6. That by reason of the loss of the crops from said 207 trees for the years 1898 and 1899, plaintiff has sustained great loss and dam- age in the further sum of $387.50; that by reason of the care and cultivation bestowed upon said 207 trees of said inferior and worth- less variety, plaintiff has sustained further loss and damage in the sum of $120 ; that by reason of the failure of said defendant to fur- nish plaintiff said 207 trees of said Blenheim variety, so paid for and supposed to have been purchased by plaintiff as aforesaid, plaintiff has sustained further loss and damage in the amount so paid defend- ant by plaintiff for said 207 trees, namely, the sum of $25.85. Wherefore, plaintiff prays judgment for the several amounts here- inabove set forth, — that is to say, for the sum of $1,533.35, together with his costs herein expended. Nicholas Bowden, [Verification.] Attorney for plaintiff. 1244 SALE AND WARRANTY. [Tit. XII. FORM No. 612 — Against a foreign corporation, to rescind a contract for breach of warranty of quality, and to recover part of pur- chase price paid. (In Kullman, Salz & Co. v. Sugar A. M. Co., 153 Cal. 725; 96 Pac. 369.) [Title of court and cause.] Now comes the plaintiff in the above-entitled action, and for cause of action, alleges: 1. [Averment as to incorporation of the plaintiff company.] 2. [Averment as to defendant company as a foreign corporation.] 3. That heretofore, to wit, on or about the 20th day of June, 1900, the plaintiff and the defendant entered into a contract in writing for the purchase and sale of a Lillie triple-effect evaporator, which said contract is in words and figures as follows, to wit : [Here fol- lows copy of contract.] 4. That the said apparatus mentioned in said written contract was warranted to evaporate 300 gallons of water per hour, as speci- fied therein; that the apparatus delivered to plaintiff under said contract was not capable, under the conditions specified, all of which were observed fully by plaintiff, to evaporate 300 gallons of water under the conditions as specified in said contract, but failed very largely to accomplish the work required thereof, and was incapable of evaporating more than [200] gallons per hour under said condi- tions. 5. That plaintiff believed the representations of defendant, and entered into said contract solely by reason of said representations and the said warranty therein contained, and plaintiff was unable to ascertain the truth or falsity of said representations before enter- ing into said contract. 6. 7. [Here follow averments as to the inefficiency of the machine supplied, and notice given to defendant that it did not meet the requirements of the contract.] * * * And plaintiff offered to return said apparatus to defendant upon receiving a satisfactory machine or the amount theretofore paid by plaintiff on account of the purchase price of said apparatus. 8. That plaintiff has paid on account of the purchase price of said machine, and expended thereon in an endeavor to cause the same to perform the work required as specified in said contract, the sum of $2,132.31, no part of which sum has been paid to plaintiff by Ch. LXXXIV.] COMPLAINTS [OR PETITIONS].— FORMS. 1245 defendant, nor has any satisfactory machine been furnished to plaintiff by defendant in place of the one furnished under said con- tract. 9. That previous to the commencement of this action plaintiff notified defendant of its rescission of said contract by reason of the failure of defendant to furnish a machine in accordance with the terms of said contract. Wherefore, plaintiff prays, that \% be adjudged and decreed that said contract is void, and that plaintiff have judgment against defendant for the sum of $2,132.31, with interest on the payments made from the dates of said payments, and for costs of suit. M. B. Kellogg, A. E. Shaw, [Verification.] Attorneys for plaintiff. FORM No. 613 — For breach of warranty on sale of work animals. (In Sierra L. & C. Co. v. Brieker, 3 Cal. App. 190; 85 Pac. 665.) [Title of court and cause.] Now comes the plaintiff, and for cause of action alleges : 1. [Averment of incorporation of plaintiff company.] 2. [Averment as to defendants as copartners.] 3. That on or about the 4th day of April, 1904, at Los Angeles, California, plaintiff purchased from defendants two mares upon the following express representations of defendants, and warranty in writing, that said animals were sound and without blemish, a copy of which is as follows, to wit: [Here copy of agreement is set out.] 4. That on or about the said 4th day of April, 1904, plaintiff paid defendants the sum of $360 for said animals, and expended [here are set forth other payments and expenses which defendants agreed to refund if the team was not as represented] . 5. That after a thorough test had been made plaintiff discovered that * * * neither of said mares was sound or without blemish, in this: [Here defects are specified.] 6. That on or about April 23, 1904, plaintiff notified defendants that said animals were not satisfactory; that they were both un- sound and blemished, and offered to return the same, and demanded a return of the purchase price, but defendants refused to receive the said animals, and still refuse to receive them. 124G SALE AND WARRANTY. [Tit. XII. 7. That plaintiff has fed and cared for said team from April 5, 1904, and is still caring for the same; that $2 per day is a reasonable sum for the feed and care of the said animals [etc.]. [Prayer for judgment.] Hahn & Hahn, [Verification.] Attorneys for plaintiff. FORM No. 614 — For breach of warranty on sale of stallion. (In Watson v. Roode, 43 Neb. 348; 61 N. W. 625.) [Title of court and cause.] 1. The plaintiff complains of the defendant for that on the 18th day of November, 1884, the defendant, as an inducement to plaintiff to purchase from him, defendant, a certain imported black stallion called "Knight of the Shires," for the sum of $2,000, warranted the said horse to be a foal-getter and sound in every respect; * * * that his, defendant's, title to the same was clear, and that said horse was registered in the studbook of England, as also was his dam and sire, and that he, defendant, would furnish the secre- tary's receipt for such pedigree; and plaintiff, relying on said war- ranty and statements, purchased said horse from the defendant for the sum of $2,000, then duly paid. 2. Plaintiff avers that said horse, at the time of said sale, was unsound in this : That [here the defects are set forth] ; that because of said defects said horse was of no value whatever; that [here are stated other defects and maladies of the horse], all of which the said horse had at the time of the said purchase, and which, com- bined, caused the death of said horse on the 16th day of June, 1886. 3. Plaintiff avers that the pedigree of said horse was not as war- ranted by the defendant, and that the defendant never has furnished the secretary's receipt for such pedigree, as agreed to be done on the part of the defendant. 4. Plaintiff avers that said horse was not a foal-getter, and by reason of the above premises plaintiff has sustained damages in the sum of $5,000. [Prayer, etc.] FORM No. 615 — For breach of warranty of fitness for designated purpose. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , the defendant gold and delivered to the plaintiff [stating what], for the purpose- Ch. LXXXIV.] ANSWERS.— FORMS. 1247 [stating what], for valuable consideration, and then and there, as part of the contract of sale, warranted the same to be fit and proper for such purpose. 2. That the said [articles] were not then, nor since, reasonably fit or proper to be used for [designating purpose]. 3. That the plaintiff, confiding and relying upon said warranty, did on the day of , 19 , expend $ in using and apply- ing said articles on 4. That by reason of the premises the plaintiff was misled and injured, to his damage in the sum of $ [Concluding part.] §311. ANSWERS. FORM No. 616 — Defense of denial of warranty. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition] : Defendant denies that he promised or represented to the plaintiff that the said [horse] was sound or gentle or quiet in harness; but alleges that the plaintiff purchased said [horse] with notice [state defect, if any] , and not confiding in or relying upon any representa- tions of the defendant. [Etc.] FORM No. 617 — Denial of breach of warranty. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition] : Defendant alleges that at the time of the sale mentioned therein said horse was sound [etc., following terms of warranty]. [Etc.] FORM No. 618 — Counterclaim on breach of warranty. [Title of court and cause.] The defendant, for a counterclaim herein, alleges that at the time of the sale of the goods in the complaint mentioned the plaintiff rep- resented and warranted that [here allege the warranty]. [Allege breach of said contract of warranty, the particulars there- of, and the damages resulting to defendant therefrom.] [Etc.] 1248 SALE AND WARRANTY. [Tit. XIL §312. ANNOTATIONS.— Sale and warranty. 1, 2. Remedies where breach of warranty occurs. 3. Profits under "general damage" clause. 4, 5. Defense of failure of consideration. 6. Liability of vendor of article to third person. 1. Remedies where breach of warranty occurs. — In the case of an executed sale, the buyer may accept, although the goods do not comply with the warranty, and recover damages for the breach: Davidson Bros. Co. v. Smith (Iowa), 121 N. W. 503. 2. The defendant is entitled to rely on whichever defense the evidence tends to establish, where the question is sub- mitted by the pleadings as to whether the acts of defendant constituted a re- scission, or whether they were consist- ent with an intention to claim damages for breach of warranty: Davidson Bros, v. Smith (Iowa), 121 N. W. 503; Bruner v. Brotherhood of American Yeomen, 136 Iowa 612, 111 N. W. 977; Cole v. Laird, 121 Iowa 146, 96 N. W. 744; Mal- lory Com. Co. v. Elwood, 120 Iowa 632, 95 N. W. 176; Thorson & C. Co. v. Baker, 107 Iowa 49, 77 N. W. 510. 3. Profits as general damages. — Dam- ages which plaintiff sues for in a case to recover for breach of warranty of quality of goods sold by defendant, and profits which plaintiff alleges it would have made if the goods had been as warranted, may be recovered as general damages, and it is not necessary that the "profits" be specially alleged: Ger- main Fruit Co. v. Armsby Co., 153 Cal. 585, 590, 96 Pac. 319; Tahoe Ice Co. v. Union Ice Co., 109 Cal. 242, 41 Pac. 1020. 4. Defense of failure of consideration. — Proof of failure of consideration, standing alone, would, if properly pleaded, be a good defense in a suit on a note by the payee against the makers, but will not support a case bottomed on a warranty and a breach thereof: Crenshaw v. Looker, 185 Mo. 375, 84 S. W. 885; Brown v. Weldon, 27 Mo. App. 261, 99 Mo. 564, 13 S. W. 342. 5. But this does not mean that proof of want of consideration, when pleaded in a case on breach of warranty, would not be good. In an action upon a prom- issory note given for the purchase price of an article bought for a particular purpose, whether upon an express or implied warranty, with or without fraud, it is not necessary that the pur- chaser should return the article or offer to return it, or to rescind the contract, or that such article should be wholly worthless, in order that he may avail himself of his plea of failure of consid- eration; yet, if he retains the article, and does not offer to return It, and such article is not wholly worthless, such plea can avail him only so far as to de- feat a recovery on the note to the ex- tent of the difference between the value of the article, had it been such as it was represented to be, and its value such as it was shown really to be: Broderick v. Andrews, 135 Mo. App. 57, 115 S. W. 519, 520; Brown v. "Weldon, 27 Mo. App. 251, 99 Mo. 564, 13 S. W. 342; Shepherd v. Padgitt, 91 Mo. App. 473; Miles v. Withers, 76 Mo. App. 87; Fairbanks v. Baskett, 98 Mo. App. 53, 71 S W. 1113; Williams v. Baker, 100 Mo. App. 284, 73 S. W. 339; Ferguson Implement Company v. Parmer, 128 Mo. App. 300, 107 S. W. 469. 6. Liability of vendor of article to a third person. — The manufacturer of ma- chinery is not liable to a person, other than the vendee, for an injury caused by breakage, in those cases where the article sold is not inherently of a dan- gerous character: Heizer v. Kingsland etc. Mfg. Co., 110 Mo. 605, 19 S. W. 630, 33 Am. St. Rep. 482, 15 L. R. A. 821. See Roddy v. Missouri Pacific R. Co., 104 Mo. 234, 15 S. W. 1112, 24 Am. St. Rep. 333, 12 L. R. A. 746; Gordon v. Livingston, 12 Mo. App. 267; Loop v. Litchfield, 42 N. Y. 351, 1 Am. Rep. 513; Losee v. Clute, 51 N. Y. 494, 10 Am. Rep. 638; National Sav. Bank v. Ward, 10* U. S. 185, 25 L. ed. 625. Oh. LXXXV.] CODE PROVISIONS. 1249 CHAPTER LXXXV. Breach of Contracts of Sale and Purchase, and of Miscellaneous Contracts. Page $ 313. Code provisions 1249 S 314. § 314. Complaints [or petitions] 1251 Form No. 619. For breach of contract of sale and to recover for goods sold 1251 Form No. 620. For breach of contract to furnish engine and engineer at the opening of threshing season. 1252 Form No. 621. For breach of contract in furnishing irrigating plant 1253 Form No. 622. Upon contract to purchase stock in default of corporation to pay dividends 1254 Form No. 623. For breach of an option contract to repurchase stock 1255 Form No. 624. For breach of contract for purchase of fruit... 1256 Form No. 625. Averments as to damages for breach of con- tract to purchase oil 125S S 315. Answers 1259 Form No. 626. Defense of non-compliance with contract 1259 Form No. 627. Defense of coverture of the defendant 1259 Form No. 628. Defense of breach of contract to feed and care for animals, and cross-complaint for damages 1259 5 316. Judgment [or decree] 1261 Form No. 629. For plaintiff. — Damages for breach of contract to purchase \ 1261 § 317. Annotations - 1261 §313. CODE PROVISIONS. Agreement to sell defined. California, § 1727. An agreement to sell is a contract by which one engages, for a price, to transfer to another the title to a certain thing. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: * Arizona, Laws 1907, p. 229, § 1, sub. 1. Montana, Rev. Codes 1907, § 5082. North Dakota, Rev. Codes 1905, § 5397. South Dakota, Rev. Codes 1903. C. C. §1302. a Arizona, Laws 1907, p. 229, § 1. (1) A contract to sell goods is a contract whereby the seller agrees to transfer the property in goods to tbe buyer for a consideration called the price. » • * (Enacted March 21, 1907.) Jury's PI. — 79. 1250 BREACH OF CONTRACTS OF SALE, ETC. [Tit. XIL Agreement to buy denned. California, § 1728. An agreement to buy is a contract by which one engages to accept from another, and pay a price for the, title to a certain thing. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 5083. North Dakota, Rev. Codes 1905, § 5398. South Dakota, Rev. Codes 1903, C. C. § 1303. Agreement to sell and buy denned. California, § 1729. An agreement to sell and buy is a contract by which one engages to transfer the title to a certain thing to another, who engages to accept the same from him and to pay a price therefor. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 5084. North Dakota, Rev. Codes 1905, § 5399.. South Dakota, Rev. Codes 1903, C. C. § 1304. Property subject of agreement for sale. California, § 1730. Any property which, if in existence, might be the subject of sale, may be the subject of an agreement for sale, whether in existence or not. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Arizona, Laws 1907, p. 229, §5, subs. 1, 2. Montana, Rev. Codes 1907, § 5085. North Dakota, Rev. Codes 1905, § 5400. South Dakota, Rev. Codes 1903, C. C. §1305. a Arizona, Laws 1907, pp. 229, 231, § 5. (2) There may be a contract to sell (1) The goods which form the subject goods, the acquisition of which by the of a contract to sell may be either exist- seller depends upon a contingency which lng goods, owned or possessed by the may or may not happen. • • • (En- seller, or goods to be manufactured or acted March 21, 1907.) acquired by the seller after the making of the contract to sell, in this act called "future goods." Sale at auction— Rights of buyer. California, § 1796. If, at a sale by auction, the auctioneer, having authority to do so, publicly announces that the sale will be with- out reserve, or makes any announcement equivalent thereto, the highest bidder in good faith has an absolute right to the completion of the sale to him ; and, upon such a sale, bids by the seller, or any agent for him, are void. (Kerr's Cyc. Civ. Code.) Ch. LXXXV.] COMPLAINTS [OR PETITIONS].— FORMS. 1251 The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 5126. North Dakota, Rev. Codes 1905, § 5440. South Dakota, Rev. Codes 1903, C. C. § 1345. §314. COMPLAINTS [OR PETITIONS]. FORM No. 619 — For breach of contract of sale and to recover for goods sold. (Adapted from Savage v. Salem Mills Co., 48 Ore. lj 85 Pac. 69; 10 Am. & Eng. Ann. Cas. 1065.) [Title of court and cause.] The plaintiff complains of the defendant, and for cause of action alleges : 1. That the defendant is, and during all times herein mentioned has been, a corporation duly organized and existing under and by virtue of the laws of the state of Oregon, and doing therein a general mill- ing business; that at all the times mentioned in this complaint, and for many years prior thereto, the defendant had owned and operated a flouring-mill, having in conjunction therewith, and connected there- to by stationary mechanical wheat-conveyors, a storage-house, to hold and retain wheat received by it until such wheat shall be sold or manufactured into flour or other mill products; that during all the times herein mentioned it was the custom and usage of the defendant to receive wheat from the farmers, giving load-checks therefor, show- ing the name of the person from whom received, the date and num- ber of bushels, and thereafter, at the convenience of the parties, issue a receipt to the holders of such load-checks, a copy of which receipt is hereunto annexed and made a part of this complaint, and marked "Exhibit A"; that it was also during all said times the custom and usage of the defendant, known and agreed to by the parties deliver- ing wheat to it, to mix the wheat received with its consumable stock, and to sell the same, or grind it into flour and sell the flour at its pleasure, and to retain the proceeds thereof; and that the party deliv- ering the wheat, by paying 2y 2 cents per bushel for storage and Sy 2 cents per bushel for sacks, could demand payment for the wheat so delivered in merchantable wheat at any time before the 1st day of July next following the delivery, subject, however, to the defendant's preferred right to purchase, but in case such demand should not be made prior to the date stated, it shall be optional with the defendant whether to pay the quantity price of wheat of the kind and quantity delivered at the date of the demand, or deliver an equal quantity of merchantable wheat upon the payment of the storage and for sacks. 1252 BREACH OF CONTRACTS OF SALE, ETC. [Tit. XII. 2. That said custom and usage were known and agreed to by all parties doing business with the defendant, and in delivering wheat, and in issuing the receipt mentioned, the parties contracted with reference to such usage and custom, and such receipt was based upon and controlled thereby. 3. That on the day of August, 1899, the plaintiff delivered to the defendant, at its mill, 2,092 bushels and 12 pounds of merchantable wheat, and received from it the customary load-checks therefor ; that such wheat was delivered to and accepted by the defendant under and in accordance with such usage and custom, and not otherwise, and the same constituted and was the contract in reference thereto; that no part of the wheat so delivered was ever returned to the plaintiff or paid for in money or in kind, except 55 bushels and 12 pounds, paid in mill-feed and flour, leaving a balance of 2,037 bushels due the plaintiff; that soon after receiving the wheat the defendant sold and disposed of the same and applied the proceeds to its own use ; that on August 17, 1901, the plaintiff tendered to defendant the requisite amount for storage and for sacks, and demanded the deliv- ery to him of 2,037 bushels of merchantable wheat, or the payment of fifty cents a bushel, the value thereof, but defendant refused to do either. Wherefore, the plaintiff prays judgment against the defendant for the value of said wheat retained by the defendant and undelivered as aforesaid, amounting to $ , and for interest thereon from the date of the demand aforesaid, and for costs. W. T. Slater, and "W. M. Kaiser, [Verification.] Attorneys for plaintiff. FORM No. 620 — For breach of contract to furnish engine and engineer at opening of threshing season. (Adapted from Hoskins v. Scott, 52 Ore. 271; 96 Pac. 1112.) [Title of court and cause.] Plaintiff complains of defendant, and for cause of action alleges : That on the day of , 19 , the defendant, for a valuable consideration, agreed with the plaintiff to furnish plaintiff an engine and a competent engineer to run plaintiff's machine purchased by plaintiff from defendant, during the threshing season of the year 1906, commencing on or about the day of , and ending on Ch. LXXXV.] COMPLAINTS [OR PETITIONS].— FORMS. 1253 or about the day of in said year ; that the plaintiff, relying on said promise of the defendant, made the necessary arrange- ments, including procurement of the complement of men necessary to begin and carry on successfully threshing during and for said season, and made all necessary arrangements at the opening of said season, pursuant to said contract and promise of the defendant; that the plaintiff performed in all respects said contract upon his part, and notified defendant in due time that plaintiff expected defendant to be ready with the engine and engineer at the opening of the threshing season, as promised, so that plaintiff could engage in threshing dur- ing said season, and demanded of defendant that he furnish the engine and engineer according to their contract, which defendant neglected and refused to do during said season or at any time, to the damage of the plaintiff in the sum of $ Wherefore, plaintiff prays judgment against defendant for the sum of $ damages and costs of suit. A. B., Attorney for plaintiff. FORM No. 621 — For breach of contract in furnishing irrigating plant. (In Irvine v. Rapp, 9 Cal. App. 375; 99 Pac. 409.) [Title of court and cause.] 1-8. [After introductory part, averments of copartnership, of agreement to furnish pumping plant, and breach of said agreement, the complaint, with reference to defendants' default and the dam- ages occasioned by said breach, proceeds as follows :] 9. * * * That defendants have wholly failed, neglected, and refused, and do now refuse, to remedy such defects, or to supply such omitted parts, or to perform their said contract in these respects ; that plaintiff was thereby, by the acts of defendants, compelled to employ other parties to remedy such defects and supply such omitted parts, all at a necessary cost to plaintiff in the premises of the sum of $250. 10. That solely by reason of, and as the immediate and direct and necessary result of, the said failure of defendants to perform their said contract plaintiff was prevented from irrigating said alfalfa or any thereof during the said months of June and July, 1900, or at any time thereafter ; that in consequence all said alfalfa died and was lost to the plaintiff; that as a further and necessary consequence of said failure of defendants to perform their said contract in the time stipu- lated in said agreement, plaintiff suffered a loss of a subsequent and 1254 BREACH OF CONTRACTS OF SALE, ETC. [Tit. XH. second crop of alfalfa, all of which alfalfa could have been saved and crops harvested if defendants had duly performed their said contract ; that plaintiff was damaged by the loss of said two crops of alfalfa in the sum of $2,577.50. Wherefore, plaintiff prays judgment against defendants in the sum of $2,827.50, together with interest thereon and costs, and for such other and further relief as shall appear to be just. George W. Towle, [Verification.] Attorney for plaintiff. FORM No. 622 — Upon contract to purchase stock in default of corporation to pay dividends. (Adopted from Marino vich v. Kilburn, 153 Cal. 638; 96 Pac. 303. y [Title of court and cause.] Comes now the above-named plaintiff, and, complaining of the above-named defendant, for cause of action alleges : 1. That heretofore, to wit, on the 21st day of July, 1903, defendant entered into a contract in writing with plaintiff, wherein defendant agreed that, if the plaintiff would pay to the Watsonville Transporta- tion Company, a corporation, in full for 50 shares of its capital stock, at the rate of $60 per share, defendant would, in the event of the non- payment by said company of an annual dividend of not less than 3% per cent upon the said purchase price of said stock, pay to plaintiff said sum, to wit, 3^2 per cent upon said purchase price, and, further, * * * would thereupon purchase said stock at any time, upon the request of plaintiff, and after the default of the company in pay- ing said dividend; that by said agreement defendant further prom- ised to pay plaintiff for said shares of stock, in the event of said i The complaint in this action, as the same appears from the records thereof, shows that prior to the date of the agreement to repurchase the stock in the event of default of the corporation to pay a dividend or dividends the plaintiff had agreed with the company to purchase the fifteen shares of stock, and had made a partial payment thereon of $750, and that, to induce the plaintiff to pay the balance upon said obligation, the agreement aforesaid was made. The court in reversing the case stated that there was no sufficient consideration for the agreement on the part of the defendant to buy the stock and pay the plaintiff $3,000 therefor in the event of the default of the corporation to pay dividends, inasmuch as it had already become the plaintiff's duty to perform the obligation which he had entered into and upon which he had made a partial payment; and held, further, that the consideration of the original contract could not attach to the subsequent promise. (The form here given assumes an original contract upon the strength of defendant's promise to repurchase, and the averment showing that the party making the promise to repurchase was a stockholder in the company Implies a consideration): Marinovich v. Kilburn, 153 Cal. 638, 96 Pac. 303, 304. Ch. LXXXV.] COMPLAINTS [OR PETITIONS].— FORMS. 1255 default, the sum of $60 per share, cash, upon the delivery of the same to defendant and of the certificate therefor properly endorsed by plaintiff to defendant. 2. That thereupon, and on said 21st day of July, 1903, plaintiff paid to said company, the sum of $3,000, the purchase price of said shares of stock, and thereupon received a certificate therefor; * * * that said purchase price was paid in contemplation of and pursuant to said written promise of defendant, he being at and before said time a stockholder in and officer of said corporation. 3. [Here follows averment as to the default of said company in the payment of any dividend.] 4. That on the 30th day of March, 1905, plaintiff requested defendant to purchase said 50 shares of said capital stock of the Watsonville Transportation Company, and to pay him therefor the sum of $60 per share, as theretofore agreed as aforesaid, and at said time tendered to defendant the said certificate of stock to said Wat- sonville Transportation Company for said 50 shares of capital stock thereof properly endorsed to defendant by the plaintiff. 5. That defendant has wholly failed, neglected, and refused to accept said certificate of stock, or to pay the said purchase price of said shares of stock, at the rate of $60 per share, or at any other rate whatever, and that said shares of stock are, and each of them is, without any value whatever; that on account of the defendant's refusal to purchase the same as agreed upon, plaintiff has sustained damages in the sum of $3,000. Wherefore, plaintiff prays judgment of this court against defend- ant for $3,000 and costs of suit. Charles M. Cassin, [Verification.] Attorney for plaintiff. FORM No. 623 — For breach of an option contract to repurchase stock. (In Raiche v. Morrison, 37 Mont. 244; 95 Pac. 1061.) [Title of court and cause.] The plaintiff complains of the defendant, and for cause of action alleges : 1. That on the 18th day of September, 1903, in consideration of the sum of $1,000 paid by the plaintiff to the defendant, the defendant sold and delivered to the plaintiff twenty shares of the capital stock of the Minneapolis and Montana Live Stock Company, and agreed 1256 BREACH OF CONTRACTS OF SALE, ETC. [Tit. XII. with the plaintiff to repurchase the said shares of stock from the plaintiff at the expiration of three years from the said date for the sum of $1,720, this latter agreement being a memorandum as follows : "Harlem, Mont., Sept. 18, 1903. Three years from the date hereof I agree to pay J. H. Raiche $1,720 for 20 shares in the Minneapolis and Montana Live Stock Company. J. R. Morrison. Witnesses, Hunter Hardaway and John R. Ressler. " That the plaintiff thereafter, to wit, on the day of , 1906, notified the defendant he would accept the option to repur- chase, and at the expiration of the period of the said three years ten- dered to the defendant the said certificate representing the twenty shares of said stock duly endorsed, and an assignment of the said certificate to the defendant, and thereupon demanded $1,720, the price agreed upon, but that the defendant refused to accept the said or any certificate, and declined to pay the defendant the said sum of $1,720 or any part thereof; that by reason thereof the plaintiff has been damaged in the sum of $1,720. Wherefore, the plaintiff prays judgment for the said sum of $1,720, and interest thereon, and the costs of suit. Sands & O'Keefe, [Verification.] Attorneys for plaintiff. FORM No. 624 — For breach of contract for purchase of fruit. (In Ellsworth v. Knowles, 8 Cal. App. 630; 97 Pac. 690.) [Title of court and cause.] Plaintiff complains of defendants, and for cause of action alleges : 1. That W. G. Knowles and Frank J. Knowles were on the 5th day of July, 1905, and ever since have been, copartners doing business under the firm name and style of Knowles Brothers. 2. That on or about the 6th day of July, 1905, plaintiff agreed with said copartnership, to buy of it, and said copartnership agreed to sell to the plaintiff, and to deliver to him, 150 12yo-pound kilo boxes of choice apricots at five and seven-eighths cents per pound, boxed, less five per cent, the buyer to furnish lace paper with usual allow- ance, labels to be furnished by buyer free ; that said apricots under said contract were to be delivered by said copartnership to said plaintiff in the month of August, 1905, f. o. b. San Jose, Santa Clara County, California, sight draft for the purchase price of said apricots to accompany bill of lading. Ch. LXXXV.] COMPLAINTS [OR PETITIONS].— FORMS. 1257 3. That the time of said contract for the delivery of said apricots has elapsed, and that plaintiff has always been ready, able, and will- ing to furnish said lace paper and labels, and has many times prior to the time for the delivery of said apricots under said agreement of sale offered to deliver said lace paper and labels in accordance with said agreement, and has always been ready, willing, and able to receive said apricots and to pay for them at the price aforesaid upon the presentation of sight draft for the purchase price attached to the bill of lading of said apricots, according to the terms of said agree- ment, of all of which the said copartnership had notice. 4. That the said copartnership has not delivered said apricots, or any part thereof, to the plaintiff. 5. That in the month of August, 1905, and within such period after the time agreed upon as aforesaid for the delivery of said fruit as would have sufficed for plaintiff to purchase the same quantity of fruit of like quality and kind, plaintiff would have been required to pay in the market of said Santa Clara County the sum of $1,442.89 more for said fruit than said contract price, and said fruit at the said time agreed upon for the delivery of the same, and within said period thereafter, would have been worth to plaintiff the sum of $1,442.89 more than said contract price. 6. That by reason of the premises the plaintiff has thereby sus- tained damages in the sum of $1,442.89. And for another, further, and separate cause of action, plaintiff alleges : [Here follows a repetition of the allegations in the first cause of action, except that the second cause is upon a contract of a later date, to wit, July 25, 1905, for an additional 1,250 25-pound boxes of fruit at six and three-ninths cents per pound, and 1,250 25-pound boxes at seven and one-eighth cents per pound, less brokerage, etc. The dam- ages for breach of contracts of July 25, 1905, are alleged to be the sum of $1,375.] Wherefore, plaintiff prays judgment for the sum of $2,817.89 and for costs of suit. L. B. Archer, and Wm. P. Veuve, [Verification.] Attorneys for plaintiff. J258 BREACH OF CONTRACTS OF SALE, ETC. [Tit. XII. FORM No. 625— Averments as to damages for breach of contract to purchase oil. (In Central Oil Co. v. Southern Refining Co., 154 Cal. 165; 97 Pac. 177.) [Title of court and cause.] Plaintiff complains of defendant, and for cause of action alleges : 1-6. [After preliminary averments, as to the execution of the con- tract to purchase, breach of the agreement by the defendant, offer to perform on the part of the plaintiff, etc., the averments as to damages are set forth as follows:] 7. That under the contract of purchase made by the plaintiff with the defendant, the defendant agreed to pay for said oil at the rate of seventy cents per barrel of forty-two gallons each; that the freight on oil of the character agreed to be sold under said contract from Whittier, Los Angeles County, California, (the contract providing for sale of the oil at the wells, at Whittier, in said county,) to Los Angeles City, California, where the same was to be delivered, was at all times since said contract was made, ten cents per barrel; that since said contract of sale was made and said oil sold by the plaintiff to the defendant, the price of oil of the kind and character described in said agreement has grown less, and has varied from time to time. 8. That when the defendant failed and refused to accept the 5,000 barrels of oil agreed to be taken by the defendant during the month of August, 1904, the plaintiff sought to sell the same on the market, but was unable to sell the same at any time before the commencement of this action ; that the plaintiff is informed and believes, and upon such information and belief alleges, that the value to the plaintiff and the market price and value of the oil sold by the plaintiff to the defendant under the contract set out in the complaint, and which oil the defendant failed and refused to receive and accept during the month of August, 1904, was the sum of thirty cents per barrel at the place of delivery and at the time when the same was to be delivered ; [here follows similar averments with reference to oil which was to be delivered during the months of February, March, April, May, and June, 1905;] that the plaintiff is informed and believes, and therefore alleges, that the profit which would accrue to the plaintiff upon the 15,000 barrels of oil which was agreed to be taken by the defendant during the months of April, May, and June, 1905, would amount to the sum of $4,500. Ch. LXXXV.] ANSWERS.— FORMS. 1250 9. That by reason of the failure, refusal, and neglect of the defend- ant to receive and accept the oil so purchased by the defendant from the plaintiff, and to carry out the contract entered into between the plaintiff and defendant, as hereinbefore set forth, plaintiff has been damaged in the sum of $9,000. Wherefore, plaintiff prays judgment against defendant for the sum of $9,000, and for costs of suit. Percy R. Wilson, [Verification.] Attorney for plaintiff. §315. ANSWERS. FORM No. 626 — Defense of non-compliance with contract. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition] : Defendant denies that said work was completed in a good or work- manlike manner, and alleges that said work was deficient in this, that [state in what manner the work was deficient] ; and the same was not completed on or before the day limited therefor in the contract set forth in the complaint [or petition], but was then and from thence to the beginning of this action incomplete and unfinished. [Etc.] FORM No. 627 — Defense of coverture of the defendant. [Title of court and cause.] [After introductory part:] That at the time of the execution of the note, as alleged in the complaint herein, this defendant was, and still is, the wife of one D. E. ; that she did not then have, nor has she now, any separate property or business of any nature. [Or, in ease she has a separate estate or business, allege that the said supposed contract did not in any way concern such separate property or business.] [Concluding part.] FORM No. 628 — Defense of breach of contract to feed and care for animals, and cross-complaint for damages. (In Calland v. Nichols, 30 Neb. 532, 534; 46 N. W. 631.) [Title of court and cause.] The defendants, for answer and cross-complaint to plaintiff's peti- tion: 1260 BREACH OF CONTRACTS OF SALE, ETC. [Tit. XII. 1. Admit that on the day of , 1887, , the plaintiff, made and entered into a contract with defendants to take 100 head of cattle or more, not to exceed 200 head, and to keep them in good condition, give them good care and plenty of food, and deliver them to defendants, or order, in the spring of 1888, and at a time when they could live well on grass, for the sum of $4.50 each, to be paid for in full by the defendants on delivery of the cattle in good condi- tion in the spring of 1888. 2. Aver that on the 7th day of September, 1887, the defendants delivered to the plaintiff, and the plaintiff received from the defend- ants, 123 head of cattle in good health and condition, to be cared for, properly fed, and delivered to defendants in good condition in the spring of 1888, according to the terms and provisions of said con- tract. 3. That plaintiff then received said 123 head of cattle upon the above conditions, and undertook to use due and proper care in the management of said cattle, to properly feed, water, and shelter the same, and deliver them in good condition to the defendants at the time therein stated, but the plaintiff, not regarding his promise and undertaking, did not and would not take proper care of said cattle, and did not properly feed, water, or shelter the same; and when he was requested to redeliver the said 123 head of cattle at the time mentioned in said agreement, delivered only 74 of said cattle, and he has failed and neglected to deliver 49 head or any number thereof, and has not paid the value thereof, amounting to the sum of $980, though often requested so to do; but, on the con- trary, the plaintiff so negligently and carelessly conducted himself with respect to said cattle, and took so little care of them, and failed to properly feed, water, and shelter them, that, by and through the said negligence and improper conduct of the plaintiff and his serv- ants in that behalf, the said 123 head of cattle all became poor, thin in flesh, and weak in condition, and 49 head of said cattle, from want of proper food, care, and attention on the part of the plaintiff, and while the same were in his custody, died, to the defendants' damage in the sum of $980. 4. Defendants further allege that, in order to prevent the whole of said cattle from dying of starvation and exposure, they were com- pelled to and did incur great expense, to wit, $199, in furnishing said cattle with proper care and attention while the same were in plaint- Ch. LXXXVJ JUDGMENT, ETC.— ANNOTATIONS. 1261 iff's possession ander the contract aforesaid; that he was under obli- gation to furnish the same, but failed, neglected, and refused so to do, to defendants' damage in the sum of $199. "Wherefore, [etc.]. §316. JUDGMENT [OR DECREE]. FORM No. 629 — For plaintiff. — Damages for breach of contract to purchase. (In Central Oil Co. of L. A. v. Southern Refining Co., 154 Cal. 165; 97 Pac. 177.) [Title of court and cause.] [After recitals as to appearances, hearing, submission, filing of findings, etc. :] Wherefore, by reason of the law and findings aforesaid, it is ordered, adjudged, and decreed, that the Central Oil Company of Los Angeles, the plaintiff, do have and recover of and from the Southern Refining Company, the defendant, the sum of $6,500, with interest thereon at the rate of seven per cent per annum from the date hereof until paid, together with the plaintiff's costs and dis- bursements incurred in this action, amounting to the sum of $25.50. Dated October 24, 1906. G. A. Gibbs, Judge of Superior Court. For substance of complaint in action to recover damages for alleged breach of contract of sales, see Kirchman v. Tuffli Bros. (Ark.), 122 S. W. 239. Form of demurrer in an action for breach of contract: Ford v. Gregson, 7 Mont. «9, 95, 14 Pac. 659. Form of answer in an action for the recovery of money paid for the purchase of lots under an agreement to the effect that each member of an association, composed of the plaintiff and the defendants, was to pay two dollars a week, and at drawings, held each week, one of the members was to receive a lot: Branham v. Stallings, 21 Colo. 211, 212, 40 Pac. 396, 52 Am. St. Rep. 213. §317. ANNOTATIONS. — Breach of miscellaneous contracts of sale. 1. Basis of contract liability. 2. Complaint for breach of contract of sale. 3. On agreement to furnish laborers. 4. Option agreement. — What complaint must set forth. 6, 6. Entire and severable contracts — Distinctions. 7. Test of divisibility of contracts. 8, 9. Actions upon instalment contracts. — When judgment is a bar. 10. Defense of non-delivery of contract. 11. Agreement to pursue independent measures of redress. — Defense based upon. 1. Basis of contract liability. — Ordi- but there are some exceptions to this narily, there must be a request from a rule, as where a person is under a person authorized to make the same to moral and legal obligation to do an act, constitute a basis for contract liability; and another does it for him under such 12G2 BREACH OF CONTRACTS OF SALE, ETC. [Tit. XII. circumstances of urgent necessity that humanity and decency admit of no time for delay. In such a case it is sufficient to allege the facts showing the imme- diate necessity for the services rendered and the impossibility of making a prece- dent request or promise to pay: Com- missioners of Sheridan County v. Done- brink, 15 Wyo. 342, 89 Pac. 7, 9, 9 L. R. A. (N. S.) 1234, (against county com- missioners to recover for surgical and medical services rendered an indigent person). 2. Complaint for breach of contract of sale. — A complaint in an action for dam- ages for breach of an alleged contract has been held sufficient where the ma- terial allegations are, in substance: That on the 16th day of October, at Wells- ville, Utah, the plaintiffs (appellants) and defendants (respondents) entered into a certain written contract, In words and figures as follows: "Oct. 16, '03. I hereby agree to sell and deliver to Bailey & Sons at their place of business in Logan City, Utah, 125 bushels of lucerne seed at the rate of $.10% per pound after same seed is recleaned; said seed to be in said David & Andrew Leishman's sacks. [Signed] Andrew Leishman. David Leishman." That by the terms of said contract the defend- ants had agreed to deliver the said seed to the plaintiffs at said Logan City within a reasonable time; that ten days or less after the making of said con- tract was a reasonable time within which to deliver the said seed, and the defendants could have delivered the same to plaintiff within said time had they chosen to do so; that plaintiffs have at all times been able and willing to purchase from defendants said seed at the rate of 10% cents per pound as expressed in the memorandum of agree- ment; that plaintiffs at all times had been ready, willing, and able to pay defendants said 10% cents per pound for said seed upon the delivery and reclean- ing thereof; that defendants have wholly failed and neglected to deliver said seed or any part thereof to plaint- iffs, and have refused to deliver said seed or any part thereof, notwith- standing that the plaintiffs on the 7th day of November, 1903, and at divers certain times prior thereto, demanded of the defendants that they deliver the said seeds in accordance with the terms of the said agreement between the said parties; that by reason of the failure to deliver said seeds plaintiffs allege that they have been damaged in the sum of $150, for which they demand judg- ment, etc.: Bailey v. Leishman, 32 Utah 123, 89 Pac. 78, 79, 13 Am. & Eng. Ann. Cas. 1116 (for damages for breach of contract). 3. On agreement to furnish laborers. — In an action for damages for breach of a contract against a company for neg- ligently failing to keep its promise, in that it did not furnish experienced labor- ers in time, and in that it did not prop- erly instruct the laborers actually fur- nished, the complaint is insufficient where it is impossible to say what, if any, portion of the damages resulted from the fault of the company, and what portion from the fault of the plaint- iff himself; and this especially where the complaint is not of the failure of the company to instruct plaintiff's laborers but only of its failure to properly in- struct them. It is elementary that in order to maintain an action, the com- plaint must set forth facts which, if true, put the defendant in the wrong: Smith v. Billings Sugar Co., 37 Mont. 128, 94 Pac. 839, 841, 15 L. R. A. (N. S.) 837, (for damages for breach of con- tract). 4. Option agreement. — What complaint must set forth. — The complaint in an action for damages for a breach of con- tract to sell under an option agreement should set forth the option, alleging its execution to the plaintiff, with aver- ments that the plaintiff had elected to take the land under the option; the value of the land; the refusal of the defend- ant to comply with the terms of the option; that the defendant had, before the expiration of the option, sold the land to a third party, or that he had otherwise incapacitated himself from performing the contract on his part; the damages suffered by the plaintiff by rea- son of the failure and refusal of the plaintiff to comply with the option: Palmer v. Clark, 52 Wash. 345, 100 Pac. 749. (The text of this note is not taken from the decision proper; it is rather an adaptation from a preliminary state- ment by the court.) 5. Entire and severable contracts. — As a general rule, it may be said that a contract is entire when by its terms, nature, and purpose it contemplates and Intends that each and all of its parts Ch. LXXXV.] ANNOTATIONS. 1263 and the consideration shall be common each to the other and interdependent. On the other hand, it is the general rule that a severable contract is one in its nature and purpose susceptible of divi- sion and apportionment. The question whether a given contract is entire or severable is very largely one of inten- tion, which intention is to be determined from the language the parties have used and the subject-matter of the agree- ment. The divisibility of the subject- matter or the consideration is not neces- sarily conclusive, though of aid in arriving at the intention. Where it rea- sonably appears from the language of the contract or from its terms that the parties intended that a full and com- plete performance should be made with reference to the subject-matter of the contract by one party in consideration of the obligation of the other party the contract is said to be entire. It is very difficult to lay down a rule which will apply to all cases, and consequently each case must depend very largely on the terms of the contract involved: Pacific Timber Co. v. "Windmill Co., 135 Iowa 308, 112 N. W. 771, cited in Quar- ton v. American Law Book Co. (Iowa), 121 N. W. 1009, 1015. 6. As to the distinction between an en- tire and an apportionable contract, see Hildebrand v. American Fine Arts Co., 109 Wis. 171, 85 N. W. 268, 53 L. R. A. 826; Tilton v. James L. Gates L. Co., 140 Wis. 197, 121 Wis. 331, 334. 7. Test of divisibility of contracts. — If a contract contains language which obligates the party to make partial pay- ments, then it is divisible, and an ac- tion may be maintained on the instal- ments as they become due before per- formance is completed: La Coursier v. Russell, 82 Wis. 265, 52 N. W. 176; Clark v. Clifford, 25 Wis. 597; Tilton v. James L. Gates L. Co., 140 Wis. 197, 121 N. W. 331," 334. 8. Actions upon Instalment contracts. — When payments of money are to be made periodically, separate actions may be maintained In succession for instal- ments as they mature subject to this provision: All sums due when an ac- tion is begun must be included in it: Puckett v. National Ann. Assn., 134 Mo. App. 501, 114 S. W. 1039, 1041; Union R. Co. v. Traube. 59 Mo. 355, 362; Adler v. Railroad, 92 Mo. 242, 4 S. W. 917; Kerr v. Simmons, 9 Mo. App. 376; Priest v. Deaver, 22 Mo. App. 276; Williams v. Kitchen, 40 Mo. App. 604; West v. Moser, 49 Mo. App. 201; Miller v. Union Switch etc. Co., 59 Hun 624, 13 N. Y. Supp. 711; Lorillard v. Clyde, 122 N. T. 41, 45, 25 N. E. 292, 19 Am. St. Rep. 470. 9. If all payments are due, and if one is omitted, a judgment in the case will be a bar to a second action to recover it: United R. etc. Co. v. Traube, 59 Mo. 355, 365; Puckett v. National Ann. Assn., 134 Mo. App. 501, 114 S. W. 1039, 1049; Reformed Dutch Church v. Brown, 54 Barb. 191. 10. Defense of non-delivery of con- tract. — Where a defense is based upon non-delivery of a written contract, there should be a denial of execution under it; as the execution of an instru- ment imports its delivery: Hart v. Harrison etc. Co., 91 Mo. 414, 422, 4 S. W. 123; North St. Louis etc. Assn. v. Obert, 169 Mo. 507, 517, 69 S. W. 1044; American Copying Co. v. Muleski, 138 Mo. App. 419, 122 S. W. 384, 385. 11. Agreement to pursue independent measures of redress. — Defense based upon. — An agreement by a member of a benevolent or fraternal society to look solely to the society for redress of grievances, is a defense in an action at law brought by a member: Robin- son v. Templar Lodge, I. O. O. F., 117 Cal. 370, 49 Pac. 170, 59 Am. St. Rep. 193; Berlin v. Eureka Lodge K. P., 132 Cal. 294, 296, 64 Pac. 254. 1264 WORK AND SERVICES. [Tit. XIL CHAPTER LXXXVI. Work and Services. Page S 318. Complaints [or petitions] 1264 Form No. 630. For work and services. (Common form.) 1264 Form No. 631. To recover balance upon an executed contract for services 1265 Form No. 632. By employee against employer, for failure to fulfil contract of employment 1265 Form No. 633. By employer against employee, for damages caused by inefficient services 1266 Form No. 634. Against employee, for refusal to serve 1266 Form No. 635. By auctioneer, upon an account for work and services 1267 Form No. 636. For work, etc., comprising different items 1267 Form No. 637. For services rendered by busband and wife.... 1268 Form No. 638. By machinist, for services and materials fur- nished 1269 Form No. 639. By physician, for services 1269 Form No. 640. On builders' contract, with claim for extra work for alterations 1270 Form No. 641. By attorneys, for services 1270 Form No. 642. By surviving partner of a law firm, to recover conditional and reasonable fee for legal serv- ices. (Pleading, also, stated account.) 1271 Form No. 643. By parent, for services of minor child 1273 Form No. 644. Upon individual and assigned claims for serv- ices 1273 |319. Answers 12 74 Form No. 645. Defense where damages exceed alleged value of services. — Action upon assigned claims for reasonable services of a physician 1274 Form No. 646. Defense of performance 1275 Form No. 647. Denial of offer to serve 1276 Form No. 648. Defense of special denial, and accounting and payment 1276 §318. COMPLAINTS [OR PETITIONS]. FORM No. 630 — For work and services. (Common form.) [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That the defendant is indebted to this plaintiff in the sum of $ , for work and services rendered by the plaintiff to the defend- ant, at defendant's instance and request, as a clerk [or otherwise], between the day of , 19 , and the day of , 19 . Ch. LXXXVL] COMPLAINTS [OR PETITIONS].— FORMS. 1265 2. That for said services the defendant promised to pay the plaint- iff at the rate of $ per month, amounting in all to $ , [or, that said services were reasonably worth the sum of $ ], which became due on the day of , 19 . 3. That the defendant has not paid the same, nor any part thereof. Wherefore, plaintiff prays judgment against defendant for the sum of $ , and plaintiff's costs of suit. [Verification.] A - B " Attorne y for Pontiff. FORM No. 631 — To recover balance upon an executed contract for services. (From Donegan v. Houston, 5 Cal. App. 626; 90 Pac. 1073.), [Title of court and cause.] Plaintiff complains of defendants, and alleges : That within the two years last past, he did grading and excavating for the defendants, for which they agreed to pay him the sum of $6,173; that the defendants have paid him on account thereof the sum of $3,938.75 ; that, although often requested so to do, they have not paid him any further sum thereon; that there is now due and owing the plaintiff from defendants the sum of $2,234.25, with inter- est thereon from May 26, 1903. Wherefore, plaintiff prays judgment against the defendants for the sum of $2,234.25, and costs of suit. Chas. H. McFarland, [Verification.] Attorney for plaintiff. FORM No. 632— By employee against employer, for failure to fulfil contract of employment. [Title of court and cause.] Plaintiff complains of defendant, and for cause of action alleges : 1. That on the day of , 19 , plaintiff and defendant made a contract of employment, the terms of which are as follows : [Here state the contract made.] 2. That plaintiff entered upon his employment under said contract, and duly performed all the conditions thereof on his part until the defendant refused, as hereinafter mentioned, to permit him to con- tinue further in his employment thereunder; that plaintiff has always been, and is now, ready and willing to perform all the terms, require- ments, and conditions of said contract on his part, and has heretofore [repeatedly] offered to perform the same. .Tury's PI. — 80. ]266 WORK AND SERVICES. [Tit. XII. 3. That the defendant, on the day of , 19 , refused, and has ever since refused, to allow plaintiff to perform the duties and conditions on his part of said contract of employment, and refuses to pay him thereunder or therefor, to plaintiff's damage in the sum of $ [Concluding part.] FORM No. 633 — By employer against employee, for damages caused by inef- ficient services. [Title of court and cause.] Plaintiff complains of defendant, and for cause of action alleges : 1. That on the day of , 19 , plaintiff and defendant made a contract of employment, the terms of which are as follows: [Here state the contract made.] 2. That to procure plaintiff to make such contract of employment with defendant the defendant stated to plaintiff that defendant was. a skilled and careful worker, to wit, a [here state capacity in which the defendant was to serve] ; that, confiding in the truth of such representations, plaintiff entered into said contract of employ- ment with defendant, and intrusted to him said work in the capacity of [here state]. 3. That the defendant was not a skilled or careful worker, in this : [Here state in what the defendant was inefficient] ; that while he was in the employment of plaintiff under said contract defendant so unskilfully [and carelessly] performed said work that he caused injury to the plaintiff in the following respect, to wit : [Here specify damage resulting from said inefficient acts of the defendant] , to the damage of plaintiff in the sum of $ Wherefore, plaintiff prays judgment against defendant for $ , and plaintiff's costs of suit. A. B., Attorney for plaintiff. [Verification.] FORM No. 634 — Against employee, for refusal to serve. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. [As in paragraph 1 of preceding form.] 2. That the plaintiff has duly performed all the conditions of said contract on his part to be performed. Ch. LXXXVL] COMPLAINTS [OR PETITIONS].— FORMS. 1267 3. That the defendant entered upon the plaintiff's service on said day, but afterwards, on the day of , 19 , abandoned said service, and has refused to serve the plaintiff, as aforesaid, [or the defendant wholly refused to enter said service,] to the plaintiff's damage in the sum of $ [Concluding part.] FORM No. 635 — By auctioneer, upon an account for work and services. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That the defendant is indebted to the plaintiff on an account for work, labor, and services of the plaintiff as [auctioneer, in selling and disposing of, and endeavoring to dispose of, by auction and otherwise, divers goods, chattels, and effects for defendant], per- formed at the instance and request of the defendant, between the day of , 19 , and the day of , 19 , in the sum of $ , and interest thereon from the day of , 19 . 2. That said sum has not been paid, nor any part thereof. [Concluding part.] FORM No. 636 — For work, etc., comprising different items. (Adapted from Nelson v. Henrichsen, 31 Utah 191 ; 87 Pac. 267.) [Title of court and cause.] The plaintiff complains of defendant, and alleges : That between the day of , 19 , and the day of , 19 , plaintiff, at defendant's instance and request, per- formed work and labor as a miner, in and upon the defendant's min- ing claims situated at ; that said work upon said claims was performed in the capacity of foreman and manager thereof; that in the course of the plaintiff's said employment, during said time, plaintiff paid moneys for defendant's use and at his request in the management and operation of the said mining claims, amounting to $ ; that the labor performed, services rendered, and moneys paid out by the plaintiff at defendant's request, as aforesaid, in the aggregate, amount to and were of the value of $ ; that no part of the said sum of $ has been paid to the plaintiff, except the sum of $ , leaving a balance of $ due, payable, and unpaid from the defendant to the plaintiff. 1268 WORK AND SERVICES. [Tit. XII. Wherefore, the plaintiff prays judgment against the defendant for the sum of $ , and costs of suit. Knox & Fennemore, [Verification.] Attorneys for plaintiff. FORM No. 637 — For services rendered by husband and wife. (In Mullenary v. Burton, 3 Cal. App. 263; 84 Pae. 159.) 1 [Title of court and cause.] The plaintiff complains of the defendant, and for cause of action alleges : 1. That on the 1st day of January, 1889, the defendant employed plaintiff to superintend his Rancho Jesus Maria, situated in Santa Barbara County, state of California, and agreed to pay plaintiff for his services as such superintendent at the rate of $600 per annum, and to furnish board to plaintiff and his family; that under and by virtue of said contract of employment the plaintiff continued to work for defendant until the 1st day of February, 1895, when said contract of employment was terminated. 2. That the defendant paid to the plaintiff on account of said services the sum of $1,624, and no more ; that there remains due and unpaid from defendant to plaintiff the sum of $2,026, with interest thereon from the 1st day of February, 1895, at the rate of seven per cent per annum. For a separate and additional cause of action, the plaintiff alleges : That for six years next prior to February 1, 1895, plaintiff's wife performed services for the defendant, at his request, by cooking for the servants the defendant had employed on his Rancho Jesus Maria, situated in said county and state, for which services defendant agreed to pay the reasonable value thereof; that the reasonable value of said services was and is $20 per month; that the defendant has paid neither the whole nor any part of the value of said services, viz. $1,440, which sum has remained, and now remains, wholly due and unpaid since the 1st day of February, 1895, together with interest thereon at the rate of seven per cent per annum; that the first employment of plaintiff and his wife was continued from the date of l By the answer in the case from the record in which form No. 637 is taken, the defendant pleads the statute of limitations as to a portion of the claims declared upon. The judgment was modified by striking out the amount as to all services to which the bar of the statute was complete, and affirming the judgment as so modified: See Mullenary v. Burton, 3 Cal. App. 263, 84 Pac. 159, 160. Ch.LXXXVL] COMPLAINTS [OR PETITIONS].— FORMS. 1269 its commencement until the date of termination thereof, to wit, the 1st day of February, 1895 ; that on or about the 5th day of February, 1895, defendant departed from the state of California ; that plaintiff is informed and believes, and upon such information and belief alleges, that the defendant has not returned to the state of California, and upon such information and belief further avers that the defend- ant has been absent from the state of California since the 5th day of February, 1895. Wherefore, the plaintiff demands judgment against the defendant for the sum of $3,436, with interest thereon from the 1st day of Feb- ruary, 1895, at the rate of seven per cent per annum, and for costs of suit herein. B. F. Thomas, [Verification.] Attorney for plaintiff. FORM No. 638 — By macnlnlst, for services and materials furnished. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That from the day of , 19 , to the day of , 19 , at , the plaintiff rendered services to the defend- ant, which said services were performed at the request of the defend- ant, in repairing the machinery in the mill of the defendant, and for materials and other necessary things furnished by this plaintiff in and about said work, on the like request. 2. That the defendant promised to pay the plaintiff therefor the sum of $ , but he has not paid the same, nor any part thereof. [Concluding part.] FORM No. 639 — By physician, for services. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That the defendant is indebted to the plaintiff in the sum of $ , upon an account for the services of the plaintiff, rendered as a physician for defendant, at his request, between the day of , 19 , and the day of , 19 , in and about the treatment of defendant, and of members of his family, and for divers medicines and other articles provided and administered in that behalf by the plaintiff for defendant, and at his like request, which sum became due and payable from the defendant to the plaintiff on the day of , 19 . 1270 WORK AND SERVICES. [Tit. XIL 2. That on the day of , 19 , at , payment of the same was duly demanded from the defendant by this plaintiff, but the same has not been paid, nor any part thereof. [Concluding part.] FORM No. 640 — On builder's contract, with claim for extra work for altera- tions. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , the parties hereto entered into a contract, in writing, a copy of which is hereto annexed, marked "Exhibit A" and made a part hereof, whereby the plaintiff agreed to erect a house for the defendant, in consideration whereof the defendant was to pay $ , as follows : [State terms of payment.] 2. That on the day of , 19 , said contract was altered by mutual consent, as follows : [Set out alterations.] 3. That on the day of , 19 , at the defendant's request, the plaintiff, for a reasonable reward then promised, [here specify the extra work done on each alteration agreed upon, and allege the reasonable value of the same]. 4. That in consideration of said alterations the time for completing said building was extended for one month beyond the time fixed by the contract, to wit, to the day of , 19 . 5. That the plaintiff on his part duly performed all the conditions of said contract. 6. That the defendant has not paid the last [two] instalments called for by said contract, nor has he paid the balance due for the extra work aforesaid after deducting the said allowance, amounting in all to $ [Concluding part.] FORM No. 641 — By attorneys, for services. (In Rosenthal v. Ogden, 50 Neb. 218, 220 ; 69 N. W. 779.) [Title of court and cause.] That plaintiffs, A. B. and C. D., are partners, engaged in business as attorneys and counselors at law at , and were such at the times hereinafter mentioned; that about the day of , Ch. LXXXVI.] COMPLAINTS [OR PETITIONS].— FORMS. 1271 19 , the defendants employed plaintiffs as their attorneys in a matter in controversy between defendants and one ; that from said day of employment until the day of , 19 , the defend- ants, and each of them, counseled with plaintiffs with reference to said controversy ; that on the day of , 19 , applied to one of the judges of the United States circuit court of appeals for an order of injunction and application for receiver against the People's Mammoth Instalment Company, in which suit the defend- ants herein were joined as defendants; that at the special instance and request of defendants herein, plaintiffs performed all the pro- fessional services in and on behalf of said suit, as attorneys for the said and , at Omaha, between the day of , 19 , and the day of , 19 , to wit, [setting out dates] ; that said professional services so rendered by plaintiffs were reason- ably worth the sum of $ ; that said sum of $ is due for said services, and no part thereof has been paid. "Wherefore [etc.]. A. B. and C. D., Petitioners. FORM No. 642 — By surviving partner of law firm, to recover conditional and reasonable fee for legal services. (Pleading, also, stated account.) (In Keegin v. Joyce, 9 Cal. App. 207; 98 Pac. 396.) [Title of court.] W. C. Keegin, as surviving part-' ner of the firm of Holcomb & Keegin, plaintiff, v. Thomas F. Joyce, defendant. Plaintiff complains of defendant, and for cause of action alleges: 1. That at all times mentioned in this complaint prior to the 31st day of March, 1903, Curtis W. Holcomb and plaintiff, William C. Keegin, were partners, doing business under the firm name of Hol- comb & Keegin, and engaged in the practice of law in the city of Washington, District of Columbia; that both members of said firm were duly admitted to practise in the United States land department and before the secretary of the interior, and in all the offices of the United States having jurisdiction of the disposition of the public lands of the United States ; that on the 31st day of March, 1903, the said Curtis W. Holcomb retired from practice, upon an agreement 1272 WORK AND SERVICES. [Tit. XH. between himself and plaintiff that plaintiff should complete all of the partnership cases and collect all fees therefor, and account to said Holcomb therefor; that said Holcomb died in the month of May, 1904, and plaintiff is the surviving partner of said partnership. 2. That on or about the 28th day of October, 1901, the defendant retained and employed the said firm of Holcomb & Keegin as his attorneys to prosecute an appeal to the commissioners of the general land office of the United States, from a decision of the register and receiver of the United States land office at Los Angeles, California, adverse to defendant, as to his ownership of the Chandler-Placer mining claim. [Here follows a description of said claim and a state- ment as to services rendered upon said appeal, and a final decision by the secretary of the interior vacating the decision adverse to the defendant, and reversing the decision of the commissioner of the general land office, etc., as to him, and final decision in said case in favor of this defendant.] 3. That at the time of said employment of said firm of Holcomb & Keegin defendant promised and agreed that he would pay to plaintiff a cash retainer fee of $250, which should be in full for its services if said case was decided against defendant ; and that if said case should be decided in favor of defendant by the secretary of the interior, he, defendant, would pay in addition thereto the reasonable value of said services. 4. That defendant has paid on account of said retainer the sum of $200, and no more, and has paid nothing upon account of the reason- able value of said services. 5. That the reasonable value of said services so rendered by the firm of Holcomb & Keegin to defendant, including said balance of the retainer fee aforesaid, is $2,000. [Pleading cause as a stated account.] And for another and second cause of action, plaintiff complains and alleges as follows : 1. Plaintiff hereby makes the first paragraph of the first cause of action herein a part hereof, as if the same was fully set forth herein. 2. That on the 6th day of May, 1904, an account was stated between the said firm of Holcomb & Keegin and the defendant, and upon such statement a balance of $2,000 was found due to said firm from the defendant, which amount defendant agreed to pay. 3. That defendant has not paid the same, nor any part thereof. Ch. LXXXVI.] COMPLAINTS [OR PETITIONS].— F0RM3. 1273 Wherefore, plaintiff demands judgment against defendant for the gum of $2,000, with interest thereon at the rate of seven per cent per annum from the 6th day of May, 1904, and for his costs of suit herein expended. J. W. McKinley, [Verification.] Attorney for plaintiff. FORM No. 643 — By parent, for services of minor child. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That the defendant is indebted to the plaintiff in the sum of $ , for work and labor performed for the defendant, at his request, by one M. N., as clerk, in defendant's office at , from the day of , 19 , to the day of , 19 . 2. That said M. N. is the son of the plaintiff, and was, during said period, and still is, under twenty-one years of age. 3. That such services were reasonably worth the sum of $ ; that said sum has not been paid, nor any part thereof. [Concluding part.] FORM No. 644 — Upon individual and assigned claims for services. (In Greve v. Echo Oil Co., 8 Cal. App. 275; 96 Pac. 904.) [Title of court and cause.] Plaintiff, by leave of the court first had and obtained, files this, his amended complaint, and, as a first cause of action against the defendant, alleges: 1. [Allegation as to incorporation of defendant company.] 2. That defendant became indebted to the plaintiff, on account of the balance due on work and services rendered, in the sum of $388, which said work and services were rendered by plaintiff to defend- ant, within two years last past, in the county of Fresno, state of Cali- fornia, and at the special instance and request of defendant, and upon its express promise to pay for the same. 3. That the said sum of $388 has not been paid, nor any part thereof, but the whole amount remains now due, owing, and unpaid from defendant to the plaintiff. That plaintiff, as and for a second cause of action against defend- ant, alleges: 1. [Allegation of incorporation of defendant company.] 2. That defendant became indebted to the plaintiff in the sum of 1274 WORK AND SERVICES. (Tit. XII. $60, the same being on account of an amount allowed and agreed to be paid to the plaintiff for the keeping of a team for the use of defendant for the period of three months, to wit, for and during the months of March, April, and May, 1905 ; that said team was kept and used by plaintiff for the defendant at the special instance and request of defendant, and upon its express promise to pay for the keeping of the same. 3. That said sum of $60 has not been paid, nor any part or portion thereof, but the whole of said amount remains now due, owing, and unpaid from defendant to the plaintiff. Wherefore, plaintiff prays judgment against defendant for the sum of [total of amounts claimed] , and for costs of suit, and for such other and further relief as may be proper in the premises. Everts & Ewing, [Verification.] Attorneys for plaintiff. §319. ANSWERS. FORM No. 645 — Defense where damages exceed alleged value of services. — Action upon assigned claim for reasonable services of a physician. (In Coyne v. Baker, 2 Cal. App. 640; 84 Pac. 269.) 1 [Title of court and cause.] [After denying specifically the averments of the complaint, that the physician who rendered the alleged services was regularly licensed, etc. ; that defendant became indebted to such physician in the sum of $400, on account of services rendered at the special instance and request of defendant within two years prior to the commencement of the action; that such services were reasonably worth the sum of $400 ; and, upon lack of information or belief suf- ficient to enable defendant to answer, that such claim was assigned to plaintiff, the answer proceeds :] 4. * * * Defendant alleges that the alleged cause of action arose out of an implied contract for the payment of witness fees in l The defense of this action, pleaded by way of answer, although the damages alleged to have been suffered by the defendant exceeded the amount claimed by the plaintiff in his complaint, the court held good; that It was error to strike it out, and that the defendant should have been allowed to prove it. The cross-com- plaint, setting up substantially the same facts, was also filed, but demurrer thereto was sustained. The court said that "as the defense could be made available by answer the ruling on the demurrer to the cross-complaint, if erroneous, was immaterial": Coyne r. Baker, 2 Cal. App. 640, 84 Pac. 269, 270. Cfa. LXXXVI.] ANSWERS.— FORMS. 1275 a matter wherein said H. G. Brainard, a physician, appeared as a witness before James H. Blanchard, commissioner, in the city and county of Los Angeles, state of California, on or about the 25th, 26th, and 27th days of June, 1901, wherein, by reason of gross negligence, ignorance, and carelessness in diagnosing the case, said Brainard testified that defendant was insane, or words to that effect, all of which was untrue, and thereby greatly injured and damaged defend- ant, in an amount greatly in excess of any amount that might other- wise have been due to said Brainard from this defendant, and that, by reason of such gross negligence, ignorance, and carelessness, the testimony of said H. G. Brainard was of no value, but, on the con- trary, was of great damage, to this defendant, to wit, more than the sum of $400 ; that at the time said purported assignment is alleged to have been made, and by reason of such gross negligence, ignorance, and carelessness, and the damages resulting to defendant as afore- said, the defendant was not then, or at any time, or at all, indebted to said Brainard or to the plaintiff in said sum, or in any sum whatever. 5. Denies that the sum claimed by plaintiff in his complaint herein, or any portion thereof, is now wholly or at all due or payable from defendant to plaintiff, or to any person, or at all. Answering the second and further cause of action set forth in plaintiff's complaint, defendant denies as follows, to wit: [Here fol- low substantially the same allegations as in paragraph 1, to the effect that the said H. G. Brainard is a party in interest in the demand of the plaintiff, and the defendant therefore asks that the said H. G. Brainard be made a party to the suit.] Wherefore, defendant prays : That said H. G. Brainard be made a party to this suit ; that the plaintiff take nothing by this action ; that defendant have judgment against plaintiff for his costs of suit; and for such further relief as may be proper. Will D. Gould, [Verification.] Attorney for defendant. FORM o. 646 — Defense of performance. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition] : Alleges that he performed all the work and labor he was to per- form in and by virtue of the said contract, and denies that he left unperformed the work, as in the complaint [or petition] alleged, or otherwise, or at all. [Etc.] 1276 WORK AND SERVICES. [Tit. XII. FORM No. 647 — Denial of offer to serve. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition] : Denies that he ever at any time offered himself to the defendant to enter into his employment or service. [Etc.] FORM No. 648 — Defense of special denial, and accounting and payment. [Title of court and cause.] The defendant answers the plaintiff's complaint [or petition] : 1. The defendant admits that the plaintiff did, at the request of the defendant, enter into the service of the defendant as stated in the complaint [or petition], but alleges that he did account with said plaintiff on the day of , 19 , at , and that on the said accounting there was found due the plaintiff only the sum of $ 2. Defendant alleges that after said accounting, to wit, on the day of , 19 , he paid to the plaintiff the said sum of $ , so found due upon said accounting, and the plaintiff received and accepted the same in full satisfaction of said claim. [Concluding part.] Form of petition and reply, in an action for salary as president and general manager of a railroad company: St. Louis etc. R. Co. v. Tiernan, 37 Kan. 606, 608, 15 Pac. 544, 545. For a complaint, in an action to recover for injuries received while in the employ of a lumber and logging company, deemed sufficient in charging negligence govern- ing the conduct of the work, see Lindsay v. Grande Ronde Lumber Co., 48 Ore. 430, 87 Pac. 145, 146. A petition alleging that work is done under a contract made with the duly authorized agent of the defendant, and, further, in the alternative, that the work was done at the solicitation of the said agent and with his knowledge and consent, although obscure, is sufficient to sustain a recovery on a quantum meruit: Sunder- man-Dolson Co. v. Hope (Tex. Civ. App ), 118 S. W. 216, 217. Ch. LXXXVII.] COMPLAINTS [OR PETITIONS].— FORMS. 1277 CHAPTER LXXXVII. Actions for Debt. — Goods Sold and Delivered. pa ^ e S 320. Complaints [or petitions] 1277 Form No. 649. Action for debt. (Common form.) 1277 Form No. 650. By partnership, for goods sold and delivered.. 1278 Form No. 651. For the reasonable value of goods sold 1279 Form No. 652. To recover for goods delivered to third person at defendant's request 1279 Form No. 653. To recover where credit was given 1279 Form No. 654. For balance on goods sold and delivered at an agreed price 1280 Form No. 655. To recover interest on a balance due on an ac- count stated 1280 Form No. 656. Against foreign corporation, on an account stated for debt 1281 Form No. 657. Against husband and wife, for goods sold to wife for her separate estate 1281 Form No. 658. By an assignee, for the price of stock and fix- tures of a store, payable in instalments 1282 Form No. 659. On an assigned debt due to a partnership 1282 Form No. 660. For goods sold and delivered to a partnership, and to partner as individual 1283 5 321. Answers 1284 Form No. 661. Denial of plaintiff's title 1284 Form No. 662. Defense that credit is unexpired 1284 Form No. 663. Defense reducing value [or amount promised], and pleading payment [or offer to pay] 1284 Form No. 664. Averments in defense as to agreement to take note in part payment 1285 Form No. 665. Defenses— (1) general denial, (2) former judg- ment 1285 Form No. 666. Defenses— (1) denial of account stated, (2) de- nial of indebtedness 1286 f 322. Annotations 1286 §320. COMPLAINTS [OR PETITIONS]. FORM No. 649— Action for debt. (Common count.) (In Abadie v. Carrillo, 32 Cal. 172.) [Title of court and cause.] The plaintiffs complain of the defendant, and for cause of action aver: That on the 11th day of August, 1863, the defendant was indebted to the plaintiffs in the sum of $1,004.20 on an account for goods sold 1278 DEBT— GOODS SOLD AND DELIVERED.' [Tit. XII. and delivered by the plaintiffs to the defendant, at his request, in the city of Santa Barbara ; that no part thereof has been paid ; and that there is now due them thereon, from the defendant, the sum of $1,004.20, with interest thereon from the 11th day of August, 1863. Wherefore, the plaintiffs pray judgment against the defendant in the sum of $1,004.20, with interest from the 11th day of August, 1863, and costs. A. B., Attorney for plaintiff. [Verification.] The court in sustaining the pleading in form No. 649, which follows the form of the complaint in Allen v. Patterson, 3 Seld. (N. Y.) 476, holds, that inasmuch as this would be a good count in debt at common law, upon authority of cases holding that the ordinary forms of counts in indebitatus assumpsit, for goods sold and delivered, etc., are sufficient, the same is good under the code: Abadie v. Car- rillo, 32 Cal. 172, 175, citing Freeborn v. Glazier, 10 Cal. 337, 338; De Witt v. Porter, 13 Cal. 171; Higgins v. Wortell, 18 Cal. 330, 333; Wilkins v. Stidger, 22 Cal. 231, 235, 83 Am. Dec. 64. FORM No. 650 — By partnership, for goods sold and delivered. (Magee v. Kast, 49 Cal. 141.) [Title of court and cause.] The plaintiffs, complaining of the defendant, allege: That plaintiffs are partners in business, under the firm name and 6tyle of Magee, Moore & Co. ; that on the 17th day of November, 1871, the defendant was, and still is, indebted to the plaintiffs in the sum of $1,247.50, gold coin, on an account for goods, wares, and mer- chandise, consisting of leather and shoe manufacturers' goods, sold and delivered by the plaintiffs to the defendant, at his special instance and request, at the city and county of San Francisco ; that no part of said sum has been paid ; that there is now due to the plaint- iffs thereon from the defendant the sum of $1,247.50, gold coin, with interest thereon from the 17th day of November, 1871, at the rate of per cent per annum. Wherefore, the plaintiffs pray judgment against the defendant for the sum of $1,247.50, gold coin, together with interest thereon from the date last aforesaid, and costs of suit. Holladay & Weeks, [Verification.] Attorneys for plaintiff. Ch. LXXXVII.] COMPLAINTS [OR PETITIONS].— FORMS. 1279 FORM No. 651 — For reasonable value of goods sold. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That on the day of , 19 , at , the plaintiff sold and delivered to the defendant, at his request, certain goods and merchandise, to wit: [Briefly describe the same.] 2. That said goods and merchandise were reasonably worth the sum of $ 3. That the said sum has not been paid, nor any part thereof [ex- cept, etc., stating payments, if any]. [Concluding part.] FORM No. 652 — To recover for goods delivered to third person at defend- ant's request. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , he bargained and sold to the defendant [describe the goods], and at the defend- ant's request delivered the same to one L. M. 2. That the defendant promised to pay to the plaintiff therefor the sum of $ 3. [As in paragraph 3, form No. 651.] [Concluding part.] FORM No. 653 — To recover where credit was given. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , the plaintiff sold and delivered to the defendant [describe the property], for the sum of $ 2. That the defendant promised to pay therefor to the plaintiff the said sum of $ , on or before the da t of , 19 . 3. [As in paragraph 3, form No. 651.] [Concluding part.] 1280 DEBT.— GOODS SOLD AND DELIVERED. [Tit. XII. FORM No. 654 — For balance on goods sold and delivered at an agreed price. (In Standard L. Co. v. Miller & V. L. Co., 21 Okla. 617; 96 Pac. 761.) [Title of court and cause.] Plaintiff complains of defendant, and for cause of action alleges : 1. [Allegation of incorporation of plaintiff and defendant corpora- tions.] 2. That during the months of February and March, 1905, plaintiff, at the special instance and request of the defendant, sold and deliv- ered to defendant certain goods, wares, and merchandise at an agreed price of $900.25, which price was the reasonable market value there- of ; that no part of said account has been paid, except the sum of $698.97 ; that there now remains due and unpaid on said account the sum of $296.28, with seven per cent interest thereon from June 7, 1905. Wherefore [etc.]. FORM No. 655 — To recover interest on a balance due on an account stated. (In Tootle v. Wells, 39 Kan. 452; 18 Pac. 692.) [Title of court and cause.] 1. [Introductory part and averment as to plaintiffs as partners.] 2. That defendant, J. W., at various times between the 1st day of July, 1883, and the 1st day of April, 1884, bought various bills of goods, wares, and merchandise from plaintiffs, and between the 1st day of November, 1883, and the 15th day of September, 1885, made various payments on the same, a full and detailed statement of said purchases and payments being hereto annexed, marked "Exhibit A," and made a part hereof. 3. That it was agreed and understood between plaintiffs and defendant at the time of the receipt by defendant of the invoices of each of said bills of goods and the bills rendered therefor by plaint- iffs before the maturity of each of said bills of goods that, the amount of each of said bills remaining due and unpaid at the maturity thereof would draw interest from that date at the rate of ten per cent per annum. 4. That the total amount of said interest as above specified from the maturity of each of said bills of goods to the 14th day of Septem- ber, 1885, upon the balance remaining unpaid at the various times set out in said exhibit A, is $129.20. 5. That defendant is indebted to plaintiff in the sum of $129.20 for Ch. LXXXVII.] COMPLAINTS [OR PETITIONS].— FORMS. 1281 interest, as aforesaid, which defendant has refused, and still refuses, to pay, though often requested so to do. Wherefore, plaintiffs ask judgment against defendant for the sum of $129.20, with interest thereon from September 14, 1885, and costs of suit. A. B., Attorney for plaintiff. FORM No. 656 — Against foreign corporation, on an account stated for debt. (In O'Brien v. Big Casino G. M. Co., 9 Cal. App. 283; 99 Pac. 209.) [Title of court and cause.] Plaintiff complains, and alleges: 1. That at all times herein mentioned the above-named defendant, the Big Casino Gold Mining Company, was, and now is, a corporation duly organized and existing under the laws of the state of Washing- ton, and transacting and carrying on business in the county of Tuolumne, state of California. 2. That within the two years immediately preceding the commence- ment of this action, at the said county of Tuolumne, the defendant became indebted to the plaintiff in the sum of $500, on an account stated, for services rendered to defendant by plaintiff at the special instance and request of defendant ; that no part of said sum of $500 has ever been paid, and the whole thereof is now owing and unpaid from defendant to plaintiff. Wherefore, plaintiff prays judgment against defendant for the sum of $500, and costs of suit. E. W. Holland, [Verification.] Attorney for plaintiff. FORM No. 657 — Against husband and wife, for goods sold to wife for her separate estate. [Title of court and cause.] The plaintiff complains of the defendants, and alleges: 1. That between the clay of , 19 , and the day of , 19 , at , the plaintiff sold and delivered to the defend- ant W. X., who then was and still is the wife of Y. X., at her request, materials used for the building of a house upon and for the benefit of her separate lands and property. 2. That said materials were of the agreed price and value [or were reasonably worth the sum] of $ 3. [As in paragraph 3, form No. 651.] [Concluding part.] 1282 DEBT.— GOODS SOLD AND DELIVERED. [Tit. XH. FORM No. 658 — By an assignee, for the price of stock and fixtures of a store, payable in instalments. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , one L. M. sold and delivered to the defendant the stock and fixtures of the grocery- store at No. Street, in , the property of said L. M., and bargained, sold, and relinquished to the defendant the good-will of the business theretofore carried on by said L. M. there. 2. That the defendant agreed to pay to the said L. M. the sum of $ therefor in half-yearly payments, on the days of the months of thereafter. 3. [As in paragraph 3, form No. 651.] 4. That thereafter and before the commencement of this action, the said L. M. assigned to this plaintiff the indebtedness of the defendant therefor, of which the defendant was duly notified. [Concluding part.] FORM No. 659 — On an assigned debt due to a partnership. (In Suddarth v. Empire Lime Co., 79 Mo. App. 585.) [Title of court and cause.] For his cause of action against defendant, plaintiff alleges: That on the day of January, 1895, the defendant was in- debted to plaintiff in the sum of $456 in this, that in the year 1894, and while the defendant was engaged in the manufacture of lime in the county of Lincoln, state of Missouri, the plaintiff and one P. J. Blair were engaged as partners, under the firm name and style of Suddarth & Blair, in dealing in cordwood in said county of Lincoln ; that at said time said firm and the said defendant entered into an agreement whereby said firm agreed to furnish the defendant a large amount of cordwood in said county of Lincoln, for which the defend- ant agreed to pay said firm the sum of $1.70 per cord for the amount of wood said firm should furnish; that in pursuance of said agree- ment said firm did furnish to defendaut 108% cords of wood on the day of October, 1894, and 159^ cords of wood on the day of November, 1894, all of which wood the defendant received at its works in Lincoln County, Missouri, and promised to pay for at the price per cord aforesaid, in all the sum of $456 ; that on the 2d day of January, 1895, said firm demanded payment of said debt, but defend- Ch. LXXXVIL] COMPLAINTS [OR PETITIONS].— FORMS. 1283 ant failed and refused to pay the same or any part thereof, and the same still remains due and unpaid; that afterwards said firm duly assigned its said claim against defendant to plaintiff for value received, and plaintiff is now the owner thereof and entitled to pay- ment. Wherefore, plaintiff prays judgment for said sum of $456, with interest thereon from January 2, 1895, and costs of suit. Wm. A. Dudley, and Martin & Woolfolk, [Verification.] Attorneys for plaintiff. FORM No. 660 — Fop goods sold and delivered by a corporation to a partner ship, and to a partner as an individual. (In Redwood City S. Co. v. Whitney, 153 Cal. 421 ; 95 Pac. 885.) [Title of court.] Redwood City S. Co., a corpora- tion, plaintiff, v. Albert H. Whitney and Arthur L. Whitney, copartners, doing bus- iness under the name and style of C. E. Whitney & Co., and Ar- thur L. Whitney, defendants. Plaintiff complains of the defendants, and for cause of action alleges : 1. [Averment as to incorporation of plaintiff company.] 2. [Averment as to defendants, copartners, etc.] 3. That within two years last past the plaintiff, at the special instance and request of defendants, sold and delivered to defend- ants goods, wares, and merchandise; that the reasonable value of said goods, wares, and merchandise so sold and delivered was the sum of $2,410. 4. That the defendants have not paid for said goods, wares, and merchandise, nor any part thereof, nor have they or any of them paid said sum of $2,410, or any part thereof, though often requested so to do. 1284 DEBT.— GOODS SOLD AND DELIVERED. [Tit. Xn. Wherefore, plaintiff prays judgment against defendants for the sum of $2,410, with interest from the date of the commencement of this action at the rate of seven per cent per annum, and for costs of suit. George C. Ross, Attorney for plaintiff. §321. ANSWERS. FORM No. 661— Denial of plaintiff's title. [Title of court and cause.] The defendant answering the plaintiff's complaint [or petition] : Denies that the goods, wares, or merchandise mentioned therein, or any thereof, were the property of the plaintiff when sold to this defendant; but alleges that the same were then the property of one L. M., who alone, and not the plaintiff, sold the same to this defend- ant. FORM No. 662 — Defense that credit is unexpired. [Title of court and cause.] The defendant alleges that said sale was made upon a credit agreement, whereby the defendant was given the term of months from the day of , 19 , in which to pay for said goods; that said time or credit period had not expired at the com- mencement of this action. [Etc.] FORM No. 663 — Defense reducing value [or amount promised], and pleading payment [or offer to pay]. [Title of court and cause.] [After introductory part:] Denies that he, defendant, promised to pay the plaintiff the sum of $ [stating the amount alleged in the complaint], or any greater sum than $ . [Or, Denies that the goods furnished were of the value alleged in the complaint, or of any greater value than $ .] Defendant alleges that on the day of , 19 , he paid to plaintiff said last-named sum. [Or, That on said date (stating when), and at (stating where), tender of said last-named sum was made to the plaintiff, who then, and ever since has, refused to accept.] [Concluding part.] Ch. LXXXVII.] ANSWERS.— FORMS. 1285 FORM No. 664 — Averments in defense as to agreement to take note in part payment. [Title of court and cause.] [Introductory part.] 1. That the said goods were sold and delivered to the defendant by the plaintiff upon an agreement, by and between them, that the plaintiff should accept in part payment therefor, to the extent of $ , a promissory note for that sum drawn by this defendant, and dated on the day of , 19 , and payable on the day of , 19 , [with an approved endorser, — if such be a part of the agreement,] and the residue, of $ , to be in cash; that said cash residue was [here allege payment, and the time thereof, or allege offer to pay at a stated time and place, as the case may be] . 2. That on the day of , 19 , and before this action was commenced, the defendant tendered to the plaintiff such a note as above described [endorsed by , who was then, and still is, a person of good credit and ability, and a sufficient endorser] ; that defendant is still ready and willing to deliver said note and to pay said residue in cash as agreed. 3. That the defendant refused to receive said note, and has re- fused, and still refuses, to abide by the agreement aforesaid. [Etc.] FORM No. 665 — Defenses — (1) general denial, (2) former judgment. (In Reidy v. Scott, 53 Cal. 69.) [Title of court and cause.] Now comes the defendant, and answers the complaint of the plaint- iffs herein, as follows: 1. Denies every allegation in said complaint as if said allegations were separately set forth herein and specifically and at length denied. 2. For a further and separate defense to this action, defendant alleges that on the 26th day of September, 1876, an action was com- menced in the above-entitled court by the above-named plaintiffs against defendant, to recover the amount sued for in this action; that the cause of action set forth in the complaint in said suit is the same as that alleged in the complaint in this action; that thereafter, and before the commencement of this action, to wit, on the 30th day of December, 1876, judgment was duly rendered in said action Jury's PI.— 82. 1286 DEBT.— GOODS SOLD AND DELIVERED. [Tit. XII. against plaintiffs, and in favor of defendant, for the costs thereof; that said judgment has never been appealed from or set aside, or in any manner disturbed. Wherefore, defendant asks judgment against plaintiffs for his costs. Bodley & Campbell, Attorneys for defendant. FORM No. 666 — Defenses — (1) denial of account stated, (2) denial of indebt- edness. (In Stimson M. Co. v. Hughes M. Co., 8 Cal. App. 559; 97 Pac. 322.) [Title of court and cause.] [After introductory part and denials conformably to this defense, the answer proceeds :] Defendant denies that plaintiff at any time rendered to defendant an itemized or any bill of the material then delivered, or that on the first or any day of each or any month thereafter, or at all, plaintiff rendered to defendant a full or complete or any account, or referred to the itemized bills previously or at all rendered to defendant, or that said accounts or either of them, or any account alleged to have been rendered, ever became a stated account, or that defendant ever agreed or assented thereto; denies that there is, or ever has been, any stated account between plaintiff and defendant for said ma- terial, or that he is indebted to plaintiff in any amount whatsoever; [etc.]. [Concluding part.] Form of complaint in an action to recover for material and machinery furnished in, about, and for rebuilding a certain flouring-mill: Gove v. Island City Merc. etc. Co., 19 Ore. 363, 24 Pac. 521. Form of demurrer in an action to recover money alleged to be owing by defend- ants on an account for goods, wares, and merchandise, sold by plaintiff to defend- ants: Howes v. Lynde, 7 Mont. 545, 548, 19 Pac. 249. §322. ANNOTATIONS. — Actions for debt.— Goods sold and delivered. 1. Action In assumpsit. — Pleading at common law. 2, 3. Sufficiency of pleading under the code. 4. Assumpsit lies after part performance. E. Partner may maintain assumpsit against copartner. 6. Rescission for refusal or neglect to perform. 7. Purchase and sale. — Renunciation of contract. 8. Action by partners on quantum meruit. 9. Variance as to dates of sales, when immaterial. 10. Account stated. — Nature of. 11. Account not mutual. 12. Mistake in account stated, how put in issue. 18, 14. Action for balance of account. — Daily balances. 15. Defense of non-delivery. — Under general denial. 16. Reply to counterclaim. Ch. LXXXVII.] ANNOTATIONS. 1287 1. ACTION IN ASSUMPSIT.— Pleading at common law. — Under the system of pleading at common law it was requisite that the declaration in action of as- sumpsit upon executed consideration should show that consideration for promise by defendant was sufficient to support his promise, and it was suffi- cient to aver that consideration was executed at his request, but this aver- ment was unnecessary when considera- tion as well as promise was implied from the nature of transaction set forth in the declaration — as in an action for goods sold and delivered to defendant or for money loaned to him by plaintiff: McFarland v. Holcomb, 123 Cal. 84, 86, 55 Pac. 761. See Fisher v. Pyne, 1 Man. & G. 265, 39 Eng. C. L. 437. 2. Sufficiency of pleading under the code. — It is sufficient under the code to state facts in an action in assumpsit from which a promise to pay will be implied: National Bank v. Landis, 34 Mo. App. 433, 440, cited in Bick v. Clark, 134 Mo. App. 544, 114 S. W. 1144. 3. Indebitatus assumpsit. — A count in indebitatus assumpsit, framed substan- tially as required at common law, is now held to be a sufficient compliance with the code mandate as to allegations of fact: Henry Inv. Co. v. Semonian, 40 Colo. 269, 90 Pac. 682, citing Campbell v. Shiland, 14 Colo. 491, 23 Pac. 324; Wilcox v. Jamieson, 20 Colo. 158, 36 Pac. 902. 4. Assumpsit lies after part perform- ance where the entire performance of a special contract has been prevented by one of the parties, or where its terms have been afterwards varied by agree- ment of both parties: Reynolds v. Jour- dan, 6 Cal. 108, 111; Cox v. Western Pac. R. Co., 47 Cal. 87, 90; Cox v. Mc- Laughlin, 76 Cal. 60, 63, 64, 18 Pac. 100, 9 Am. St. Rep. 164; Joyce v. White, 95 Cal. 236, 238, 30 Pac. 524; Porter v. Ar- rowhead R. Co., 100 Cal. 500, 503, 35 Pac. 146. 5. Partner may maintain assumpsit against copartner for contribution where he pays partnership debt existing after dissolution of partnership; and this is true although he gives his individual note for debt due from the firm: Sears v. Starbird, 78 Cal. 225, 231; 20 Pac. 547. 6. Rescission for refusal or neglect to perform. — A refusal or neglect by one party to perform his part of a contract justifies the other in treating the same as rescinded, and authorizes him to sue generally as in indebitatus assumpsit: Miller v. Thompson, 22 Ark. 258, cited in South Texas Tel. Co. v. Huntington (Tex. Civ. App.), 121 S. W. 242, 248. 7. PURCHASE AND SALE.— Renun- ciation of contract. — Mere failure to pay, not evincing a purpose to renounce a contract, is insufficient to justify the seller in treating the contract as aban- doned; but if, from all the circum- stances, it appears that the buyer in- tended to renounce and abandon the contract, the seller may then repudiate the same because of its breach by the buyer: Quarton v. American Law Book Co. (Iowa), 121 N. W. 1009, 1014; Mon- arch Co. v. Wheel Co., 105 Fed. 324, 44 C. C. A. 523; West v. Betchel, 125 Mich. 144, 84 N. W. 69, 51 L. R. A. 791. (For a review of the cases touching the ques- tion of contracts of sale, rights of the seller upon abandonment of the contract by the buyer or upon conditions, and limitation of right of specific perform- ance in reference thereto, see Quarton v. American Law Book Co. (Iowa), 121 N. W. 1009, 1016.) 8. Action by partners on quantum meruit. — In an action brought by part- ners, in their individual names, upon quantum meruit, it is not necessary to allege that the cause of action accrued to them as copartners: Wilson v. Te- gean Bros., 38 Mont. 504, 100 Pac. 613, 615. See Clark v. Wick, 25 Ore. 446, 36 Pac. 165; Boosalis v. Stevenson, 62 Minn. 193, 64 N. W. 3S0. 9. Variance as to dates of sales, when immaterial. — Where the gist of an action was the sale of material described in an exhibited account, variance as to the date of sales is not fatal where the defendants could not have been misled by the variance and did not claim to have been misled: C. H. Smith etc. Co. v. Weatherford (Ark.), 121 S. W. 943, 946. 10. ACCOUNT STATED.— Nature of. — An account stated alters the nature of the original indebtedness, and is in itself in the nature of a new prom- ise or undertaking: Naylor & Norlin v. Lewiston etc. R. Co., 14 Idaho 789, 96 Pac. 573, 578, (to foreclose lien under an account stated); Hendy v. March, 75 Cal. 566, 17 Pac. 702; Carey v. Philadel- phia etc. Petroleum Co., 33 Cal. 697; Holmes v. De Camp, 1 Johns (N. Y.) 36, 3 Am. Dec. 293. 1288 MONEY HAD AND RECEIVED. [Tit. XII. 11. An account, not mutual, but one- sided, has been likened to money had and received for one by another. In a sense, definite payments to one for an- other would constitute an account, each payment being an item; yet the action would essentially be for money had and received. If the payments be made on a transaction, and some of them are older then the period of limitations and others within the period, the aggregate constitutes a single demand. As each successive payment is made, the cause of action is merely enlarged, until the last one, within the period of limitation, would make the total of a single chain, the subject of a single action: Roberts v. Neale, 134 Mo. App. 612, 114 S. W. 1121, citing and approving these princi- ples as stated in Kearns v. Heitman, 104 N. C. 332, 10 S. E. 467. 12. Mistake in account stated, how put in issue. — An action upon an account stated is not founded upon the original items, but upon the balance ascertained by the mutual consent of the parties; so where such account stated is assailed upon the ground of mistake, the mistake must be put in issue by the pleadings: Naylor & Norlin v. Lewiston etc. R. Co., 14 Idaho 789, 96 Pac. 573, 578; Coffee v. Williams, 103 Cal. 550, 37 Pac. 504; Auzerais v. Naglee, 74 Cal. 60, 15 Pac. 371; Terry v. Sickles, 13 Cal. 427. 13. Action for balance of account. — The account must be alleged in an action for balance of account, in like manner as in ordinary actions, and the complaint should specify the nature of the items composing it: Knowles v. Sandercock, 107 Cal. 629, 641, 40 Pac. 1047. 14. Daily balances. — An action may be brought for daily balances, as shown by an account: Santa Rosa Nat. Bank v. Barnett, 125 Cal. 407, 410, 58 Pac. 85. 15. DEFENSE OF NON-DELIVERY. — Under general denial. — In an action to recover for goous alleged to have been sold and delivered to the defendants, a general denial puts in issue the deliv- ery, and it is not necessary to specif- ically allege the defense of non-delivery of the goods in order to admit evidence tending to show that the plaintiff had not performed the contract in this re- spect: Mette & K. D. Co. v. Lowrey, 39 Mont. 124, 101 Pac. 966, 969. 16. Reply to counterclaim. — Under a complaint for goods sold and delivered at an agreed price, and where the defend- ant, as a basis for its counterclaim, pleaded that said contract was such as to require further deliveries, which the plaintiff failed to make; held, that the reply of the plaintiff to this counter- claim should have pleaded a modifica- tion of this contract sufficient to excuse the plaintiff from further deliveries. The general denial of the plaintiff to the counterclaim puts in issue the existence of the contract as pleaded by the de- fendant: Brooklyn Creamery Co. v. Fri- day, 137 Wis. 461, 119 N. W. 126, 127. CHAPTER LXXXVII1. Money Had and Received. — Involuntary Trusts. Page § 323. Complaints [or petitions] 1289 Form No. 667. For money had and received. (Common form.) 1289 Form No. 668. On assigned claim for money had and received, etc. — Statement of cause in separate counts 1289 Form No. 669. For recovery back of a wager 1290 Form No. 670. To recover specific moneys lost by a servant in gambling 1290 § 324 Answers 1292 Form No. 671. Denial of receipt of moneys 1292 Form No. 672. Defense of accounting and payment 1292 S 325. Annotations 1292 Ch. LXXXVIIL] COMPLAINTS [OR PETITIONS].— FORMS. 1289 §323. COMPLAINTS [OR PETITIONS]. FORM No. 667 — For money had and received. (Common form.) [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That on the day of , 19 , at , the defendant received from one E. F. the sum of $ , to and for the use of the plaintiff. 2. That on the day of , 19 , and before the commence- ment of this action, the plaintiff demanded payment thereof from the defendant. 3. [As in paragraph 3, form No. 651.] [Concluding part.] FORM No. 668 — On assigned claim for money had and received, etc. — State- ment of cause in separate counts. (In Miller v. Abrahamson, 9 Cal. App. 396; 99 Pac. 534.) [Title of court and cause.] Plaintiff complains, and alleges : 1. That defendant is indebted to plaintiff in the sum of $622.10, for money had and received by defendant to and for the use of the plaintiff and L. P. Laursen within two years last past. 2. That no part of said sum has ever been paid, although demand therefor has often been made. 3. That prior to the bringing of this action the said L. P. Laursen assigned and transferred all his interest in said claim against defend- ant to plaintiff herein, and plaintiff is now the lawful owner and holder thereof. And for a further and second count against defendant, plaintiff alleges: 1. That plaintiff is now, and for more than one year last past has been, a contractor, engaged, together with L. P. Laursen, in the city of Los Angeles, in the business of building houses, and that during said time defendant has had various subcontracts from plaintiff and Laursen for doing certain brickwork for plaintiff and Laursen; that plaintiff was accustomed to and did pay the defendant from time to time various sums of money upon orders or requests therefor made by defendant upon plaintiff and Laursen ; and that the total amount paid by plaintiff to defendant on such orders and re- ]290 MONEY HAD AND RECEIVED. [Tit. XII. quests of defendant, as aforesaid, since the 2d day of July, 1906, has aggregated the sum of $17,625.10. 3. That the total amount due from plaintiff and Laursen to defend- ant for all of said subcontracts hereinbefore referred to, since and including the 2d day of July, 1906, has been and now is the. sum of $17,003, and no further or other sum whatsoever, and that the bal- ance now due from defendant to plaintiff, by reason of such over- payment, and by reason of the assignment hereinafter alleged, is the sum of $622.10. 5. [Averment of assignment as in paragraph 3, first count.] Wherefore, plaintiff prays judgment against defendant for said sum of $622, and costs of suit. Avery & French, [Verification.] Attorneys for plaintiff. FORM No. 669 — For recovery back of a wager. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , the plaintiff deposited in the hands of the defendant, as stakeholder, the sum of $ , which was to abide the event of a wager entered into between the plaintiff and one L. M., on the result of [a horse race, or game of chance, specifying] then about to take place. 2. That such wager was in violation of the statute entitled [set out title] . passed , and acts amending the same and supplementary thereto. 3. That the result of said [horse race, etc.] yet remains undeter- mined, and the defendant still retains said money as stakeholder. 4. That on the day of , 19 , the plaintiff demanded the return of said money of the defendant; that said sum has not, nor has any part thereof, been returned or paid back. [Concluding part.] FORM No. 670 — To recover specific moneys lost by a servant in gambling. (In Ramirez v. Main, 11 Ariz. 43; 89 Pac. 508.) x [Title of court and cause.] Plaintiff complains of defendant, and alleges : That on the 20th day of July, 1903, in the said county of Santa Cruz, one Jesus Mendoza, being then and there the servant of and in i The complaint, substantially as given above, was sustained as against a gen- eral demurrer: Ramirez v. Main, 11 Ariz. 43, 89 Pac. 508, 509. Ch. LXXXVIII.] COMPLAINTS [OR PETITIONS].— FORMS. 1291 the employ of this plaintiff, had in his possession, and instrusted to him by this plaintiff, as such servant and agent, a certain sum of money, to wit, the sum of $6,000, in money of the republic of Mexico, the same being the property of this plaintiff, and being intrusted to the said Jesus Mendoza, as aforesaid, for the specific purpose of safely carrying and conveying the same from the bank of Sonora to the office or place of business of this plaintiff, and to be delivered to this plaintiff for his use and benefit; that the said Jesus Mendoza, without the knowledge or consent of the plaintiff, and in violation of his trust as such servant or employee, did, at the date and in the county aforesaid, engage in a gambling game with one Frank M. Main, the defendant herein, and thereupon did lose and cast to the possession of the said Frank M. Main, the sum of $5,950, money of the republic of Mexico, as aforesaid, the same being of the said money of the said C. Ramirez the plaintiff herein, intrusted to the said Jesus Mendoza, as aforesaid; that the said Frank M. Main has and holds the said sum of $5,950, money of the republic of Mexico, as aforesaid, the property of this plaintiff, without consideration, and without legal or equitable title ; that the said defendant is indebted to this plaintiff in the said sum of $5,950, money of the republic of Mexico, as aforesaid, all and every part of which is due from the said defend- ant to this plaintiff; that on said 20th day of July, 1903, one dollar of the money of the republic of Mexico was of the value of forty-three cents of the money of the United States of America, and that the said sum of $5,950, of money of the republic of Mexico, was on the said 20th day of July, 1903, of the value of $2,558.50, in lawful money of the United States of America ; that plaintiff has demanded the said sum of money so due, but that defendant has not paid the same, nor any part thereof. Wherefore, the plaintiff prays judgment against the defendant for the sum of $5,950, money of the republic of Mexico, or its value, at the date of its loss, in lawful money of the United States, to wit, the sum of $2,558.50, in lawful money of the United States ; and for such other and further relief as may be brought in the premises, and for •costs of this action. A. B., Attorney for plaintiff. [Verification.] 1292 MONEY HAD AND RECEIVED. [Tit. XII. §324. ANSWERS. FORM No. 671 — Denial of receipt of moneys. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition] : Denies that he ever received the money mentioned in the complaint [or petition], or any part thereof. [Etc.] FORM No. 672 — Defense of accounting and payment. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition] : Alleges that on the day of , 19 , at , he accounted with and paid over to the plaintiff all moneys received by him, defendant, up to that day. [Etc.] §325. ANNOTATIONS.— Money had and received. — Involuntary trusts. 1, 2. Allegation that moneys were received "to or for the use of plaintiff'" essential. 3. When action for money had will lie. 4. Privity of contract not necessary. 5. Common-law count for money had and received not sufficient averment for cause of action for fraud. 6. Moneys held by an agent. 7-10. Moneys paid by mistake. — Promise not necessary to allege. 11. Pleading in action for usury. 12. Common-law remedy of offset or counterclaim. 1. Allegation that moneys were re- plaintiff in a certain sum "for money had ceived "to or for the use of plaintiff" and received by the defendant to and essential.— A count in a complaint al- for the use of the plaintiff": Fox v. leging, "that within the two years next Monahan, 8 Cal. App. 707, 97 Pac. 765. last past, and at the city and county of 3. When action for money had will lie. San Francisco, state of California, the — The action for money had and received defendants became indebted to Fox-Bal- will lie wherever it appears that defend- lantyne Co., in the sum of $55, money ant has received money which in equity had and received by defendants from and good conscience he should pay to said Fox-Ballantyne Co., at the special the plaintiff. Under this principle, a instance and request of defendants," is complaint which alleges that the money an insufficient statement of a cause of was plaintiff's assignor's, as his corn- action, there being no allegation, either mission from the sale of certain real directly or by implication, that the property, and was collected by defend- money was had or received for the use ants and appropriated to their own use,, of plaintiff or his assignors. A general is good as against a general demurrer: demurrer thereto is properly sustained: Fox v. Monahan, 8 Cal. App. 707, 97 Pac. Fox v. Monahan, 8 Cal. App. 707, 97 765. Pac. 765. 4. No privity of contract Is necessary 2. The approved and usual form for to sustain the action for money had and the count of money had and received is received; for the law, under circum- very simple, consisting merely in stating stances where money is held by a per- that the defendant is indebted to the son which in equity and good conscience- Ch. LXXXVIII.] ANNOTATIONS. 1293 belongs and should be paid to another, Implies a promise to pay. It is of no Importance how the money came into the holder's hands if the other party is legally entitled to it: Stoakes v. Larson, 108 Minn. 234, 121 N. W. 1112, 1114. 5. Common-law count for money had and received not sufficient averment for cause of action for fraud. — Where the complaint in an action alleges that on the 24th day of April, 1907, the defend- ants received the sum of $3,000 from the plaintiffs "to and for the use of the plaintiffs," which sum, after demand, the defendants have refused to repay, and where the answer is a general denial, it has been held, in a recently well-con- sidered case in Montana, that testimony designed to show fraud is not admis- sible under the pleadings, for the rea- son that the facts relied upon to show fraud were not set forth in the com- plaint. The court says that "a complaint fashioned after a common-law count, may or may not state facts sufficient to constitute a cause of action under the code. In this state there is no action for money had and received as such; and there is no common law in any case where the law is not declared by the code (§ 860, Rev. Codes). The common counts have been superseded by our system of code pleading. A complaint, under this latter system, must contain a statement of the facts constituting a cause of action in ordinary and concise language (§ 6532, Rev. Codes). If the phraseology of any common count is adequate, in any particular case, to bring the pleader within the code rule, then his pleading is sufficient; otherwise, it is not. When a pleader elects to em- ploy the language of a common count, he subjects himself to the rules govern- ing the construction and sufficiency of complaints under the codes; that is to say, if a common count will in fact state his cause of action in ordinary and concise language, it is good. If it will not, it is bad": Truro v. Passmore, 38 Mont. 544, 100 Pac. 966, 968. 6. Moneys held by an agent. — Under circumstances where an agent becomes possessed of moneys, a portion of which belongs to him and a portion to his prin- cipal, an action for money had and re- ceived will lie, on the principle that one man shall not withhold that which right- fully belongs to another: Jenkins v. Clopton (Mo. App.), 121 S. W. 759, 765; Crlgler v. Duncan, 121 Mo. App. 381, 392, 99 S. W. 61; Winningham v. Fancher, 52 Mo. App. 458; Mansur v. Botts, 80 Mo. 651; Cary v. Curtis, 3 How. (44 U. S.) 236, 11 L. ed. 576; Chesapeake etc. Canal Co. v. Knapp, 9 Pet. (34 U. S.) 541, 564, 565, 9 L. ed. 222. 7. The right to recover money paid by mistake is in no manner dependent upon an express admission by the party re- ceiving it, or on his agreement to refund: Fidelity Savings Bank v. Reeder, 142 Iowa 373, 120 N. W. 1029, 1030, citing Boyer v. Pack, 2 Denio (N. Y.) 107; Bal- timore etc. R. Co. v. Faunce, 6 Gill. (Md.) 68, 46 Am. Dec. 655; Worley v. Moore, 97 Ind. 15; Clark v. Sylvester (Me.) 13 Atl. 404; Johnson v. Saum, 123 Iowa 145, 98 N. W. 599; Holmes v. Lucas Co., 53 Iowa 211, 4 N. W. 918; Hoffmann v. Cockrell, 112 Iowa 141, 83 N. W. 898; Iowa State Bank v. Cereal etc. Broker- age Co., 132 Iowa 248, 109 N. W. 719. 8. Promise, when not necessary to al- lege. — An allegation of an express admis- sion by the party receiving money paid by mistake, made after the discovery of the mistake, and accompanied by a promise to correct it, is not necessary; nor is it necessary to allege such prom- ise in a complaint in an action to recover the money so paid: Fidelity Savings Bank v. Reeder, 142 Iowa 373, 120 N. W. 1029, 1030, (construing Iowa code § 3639). 9. Money paid through a mistake of fact may be recovered in an action for that purpose: American Brewing Co. v. St. Louis, 187 Mo. 367, 86 S. W. 129, 2" Am. & Eng. Ann. Cas. 821. 10. The rule that moneys paid through a mistake of fact may be recovered is subject to the qualification that the party paying must make the payment under a bona fide belief that the money is due: American Brewing Co. v. St. Louis, 1S7 Mo. 367, 86 S. W. 129, 2 Am. & Eng. Ann. Cas. 821. 11. Pleading In action for usury. — A complaint in an action for the recov- ery of money paid as usury is not required to allege expressly that the usury was knowingly paid and ac- cepted, where the objection is not raised by demurrer, but upon objection to the admission of evidence thereunder. In. such case the authorities favor a lib- eral construction of the pleadings: Waldner V. Bowden State Bank, 13 N. Dak. 604, 102 N. W. 169, 3 Am. & Eng. 1294 MONEY LENT. [Tit. XII. Ann. Cas. 847. See Stutsman County (S. Dak.), 121 N. W. 853, 855, (constru- v. Mansfield, 5 Dak. 78, 37 N. W. 304; ing U. S. Rev. Stats. § 5197.) citing Commonwealth etc. Co. v. Dokko, 71 Schuyler Nat. Bank v. Gadsden, 191 U. S. Minn. 533, 74 N. W. 891; Peterson v. 451, 24 Sup. Ct. 129, 48 L. ed. 258; Has- Hopewell, 55 Neb. 670, 76 N. W. 451; eltine v. Central Nat. Bank, 183 U. S. Whitbeck v. Sees, 10 S. Dak. 417, 73 132, 22 Sup. Ct. 50, 46 L. ed. 118; Dries- N. W. 915. bach v. Wilkesbarre Nat. Bank, 104 U. 12. The common-law remedy of offset s. 52, 26 L. ed. 658; Barnet v. Nat. or counterclaim for money had and re- Bank, 98 U. S. 555, 25 L. ed. 212; Farm- ceived will not lie to recover usurious ers etc. Bank v. Dering, 91 U. S. 29, interest where the right to recover is 23 L. ed. 196; Walsh v. Mayer, 111 U. S. given by statute which defines the nature 31, 4 Sup. Ct. 260, 28 L. ed. 338; of the action and provides for a pen- Stephens v. Monongahela Bank 111 alty: McCarty v. First National Bank U. S. 197, 4 Sup. Ct. 336, 28 L. ed. 399. CHAPTER LXXXIX. Money Lent. Page § 326. Complaints [or petitions] 1294 Form No. 673. For money lent. (Common form.) 1294 Form No. 674. By assignee of lender against borrower 1294 § 327. Answers 1295 Form No. 675. Denial of loan 1295 Form No. 676. Defense that money was paid in settlement of an antecedent debt 1295 §326. COMPLAINTS [OR PETITIONS]. FORM No. 673 — For money lent. (Common form.) [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , the plaintiff lent to the defendant, at his request, $ , which the defendant prom- ised to repay, with interest, on demand [or on a day named]. 2. That on the day of , 19 , the plaintiff duly demanded payment of the same from the defendant, but said sum has not been paid, nor any part thereof. [Concluding part.] FORM No. 674 — By assignee of lender against borrower. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , the defendant was indebted to one L. M. in the sum of $ , on an account for money lent by said L. M. to the defendant. €h. LXXXIX.] ANSWERS.— FORMS. 1295 2. That on the day of , 19 , at , the said L. M. assigned said indebtedness to the plaintiff, of which assignment the defendant had due notice. 3. That said sum has not been paid, nor any part thereof. [Concluding part.] §327. ANSWERS. FORM No. 675— Denial of loan. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition] : Denies that the plaintiff lent him the money mentioned in the complaint [or petition], or any part thereof. [Etc.] FORM No. 676 — Defense that money was paid in settlement of an antecedent debt. [Title of court and cause.] [After introductory part:] Defendant alleges that said sum of $ , alleged in the com plaint [or petition] to have been loaned to defendant by the plaintiff, was paid by plaintiff to defendant in the settlement of a debt at the time of said payment owing to defendant from the plaintiff upon an account [or other obligation, specifying]. [Concluding part.] Action to recover moneys loaned, consisting of trust funds and other amounts: For substance of the petition upon -which judgment was affirmed for the plaintiff, see Pullis v. Somerville, 218 Mo. 624, 117 S. W. 736, 737. In an action at law to recover moneys alleged to have been collected by the defendant for the account of the plaintiff, it is not necessary to allege that the money loaned was in fact the money of the defendant, or that the cashier of the defendant was merely a nominal party whose name was made use of as a means or excuse for an attempt to exact a so-called commission. These questions are matters of evidence which the pleader is neither required nor permitted to plead: Leasure v. Boie, 142 Iowa 284, 120 N. W. 643, 644. 1296 IMPLIED CONTRACTS, ETC. [Tit. XII. CHAPTER XC. Money Paid for the Benefit of Another, and on Implied Contracts. Page { 328. Complaints [or petitions] 1296 Form No. 677. Money paid to third person upon defendant's promise to repay 1296 Form No. 678. To recover money overpaid by mistake 1296 Form No. 679. By bank, to recover attorney's fees and ex- penses incurred against a party who fraudu- lently obtained a draft 1297 Form No. 680. By landlord against tenant, for repayment of tax 1298 Form No. 681. By endorser who has paid part of note 1298 Form No. 682. By maker of accommodation note who has paid the same 1299 Fovm No. 683. For repayment of money after judgment re- versed 1299 §328. COMPLAINTS [OR PETITIONS]. FORM No. 677 — Money paid to third person upon defendant's promise to repay. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , the plaintiff, at the defendant's request, paid to one L. M. $ 2. That in consideration thereof the defendant promised to repay the same to the plaintiff. 3. That on the day of , 19 , the plaintiff demanded payment of the same from the defendant, but said amount has not been repaid, nor any part thereof. [Concluding part.] FORM No. 678 — To recover money overpaid by mistake. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , the defendant rendered to the plaintiff an account of mutual dealings theretofore had between them, in which said account an indebtedness of the plaintiff to the defendant in the sum of $ was set forth. 2. That the plaintiff, believing said account to be correctly stated and free from errors, then paid the said amount to the defendant. Ch.XC] COMPLAINTS [OR PETITIONS.]— FORMS. 1297 3. That in fact said account was not correctly stated, but, on the contrary, it overcharged the plaintiff with the sum of $ , by [setting out the error]. 4. [Same as paragraph 3, form No. 677.] [Concluding part.] FORM No. 679 — By bank, to recover attorney's fees and expenses incurred against a party who fraudulently obtained a draft (In Bank v. Williams, 62 Kan. 431; 63 Pac. 744.) [Title of court and cause.] [After introductory part:] 1. That defendant, for the purpose of wronging, cheating, and defrauding said bank, made and delivered to it a check drawn on the Citizens' Bank of , in the amount of $ , and bought of and received from plaintiff a draft on New York for said sum, pay- able to his own order; that, to carry out his fraudulent purpose, defendant represented that he had on deposit in the Citizens' Bank a sum equal to the amount of the check. 2. That said check was worthless; that on discovering this fact plaintiff, by telegraph, stopped payment on the New York draft ; that defendant immediately left the state, and thereafter procured said draft to be cashed at , by M. & Sons, at that place ; that M. & Sons were innocent purchasers of said draft, and that plaintiff was liable thereon to M. & Sons for the amount of said draft; that in order to protect itself against loss it became necessary for plaintiff to counsel and advise with attorneys, and employ a lawyer to go to and procure a settlement of said draft by defendant with M. & Sons, by returning to them, said M. & Sons, said money paid to him, said , by M. & Sons, on said draft, which was finally done ; that in procuring the settlement of said draft to the extent aforesaid, and repayment of the money to M. & Sons, plaintiff was put to large expense, to wit, for telegraphing, attorney's fees, and other expenses, in all the sum of $ ; that all of said costs and expenses were caused by and through the wrongful, fraudulent, and felonious acts of the defendant in giving said worthless check and representing the same to be valid and good, and said amount is the fair and reasonable value thereof; that defendant has now in his possession said original draft drawn on the National Bank of North America, and refuses to deliver the same to plaintiff. 1298 IMPLIED CONTRACTS, ETC. [Tit. XII. Wherefore, plaintiff prays that said draft be canceled and sur- rendered to plaintiff, and for $ damages [etc.]. FORM No. 680 — By landlord against tenant, for repayment of tax. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , the plaintiff and the defendant entered into an agreement, by which the defendant hired of the plaintiff a house in the village of , and further agreed [etc., reciting stipulation to pay tax]. 2. That there was duly levied and assessed upon the said premises for the year 19 , and while the covenants of the aforesaid agree- ment were in full force, and the defendant was in possession of the premises by virtue thereof, a tax of $ , which the defendant neglected to pay. 3. That by reason thereof the plaintiff was, on the day of , 19 , compelled to pay the said sum of $ , with $ arrearages of interest, at per cent, amounting in the whole to* the sum of $ 4. That said sum has not been repaid, nor any part thereof. [Concluding part.] FORM No. 681 — By endorser who has paid part of note. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , the defendant,, for value received, made and delivered to the plaintiff his promissory note for $ , payable to the plaintiff's order in days after said date. 2. That before the maturity of said note the plaintiff endorsed and negotiated the same for value. 3. That at maturity the said note was duly presented to the defend- ant for payment [or allege excuse for non-presentment], but was not paid, of all of which the plaintiff had due notice, and was on the day of , 19 , compelled to pay, and did pay, to one 0. P., the holder of said note, the sum of $ , being the amount due thereon from the defendant. 4. That said sum has not been repaid nor any part thereof. [Concluding part.] Cb.XC] COMPLAINTS [OR PETITIONS.]— FORMS. 1299 FORM No. 682 — By maker of accommodation note who has paid the 6ame. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , the plaintiff made and delivered to the defendant his promissory note, in the sum of $ , payable to the defendant's order in days after said date. 2. That the plaintiff never received any consideration for said note, but the same was an accommodation note, given to the defendant at his request, and on his promise to pay the same at maturity. 3. That as the plaintiff is informed and believes, and therefore alleges, the defendant thereafter, and before its maturity, negotiated said note for value. 4. That the defendant did not pay said note at maturity, in conse- quence whereof the plaintiff was compelled to and did, on the day of , 19 , pay the sum of $ in satisfaction thereof. 5. That said sum has not been repaid, nor any part thereof. [Concluding part.] FORM No. 683 — For repayment of money after judgment reversed. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , judgment was duly given, made, and rendered against this plaintiff in the court of the county of , in an action wherein the defendant was plaintiff, and this plaintiff was defendant, for the sum of $ 2. That on the day of , 19 , the plaintiff was compelled to pay, and did pay, to the defendant $ , in satisfaction of the said judgment. 3. That afterwards, on the day of , 19 , by the judg- ment of said court [or other appellate court], duly given and made, the said first-mentioned judgment was duly reversed. 4. [Same as paragraph 3, form No. 677.] [Concluding part.] 1300 HIRING OF PERSONAL PROPERTY. [Tit. XII. CHAPTER XCI. Hiring of Personal Property. Page § 329. Complaints [or petitions] 1300 Form No. 684. For hire of personal property 1300 Form No. 685. For hire of furniture, with damages for ill-usage 1300 Form No. 686. For hire of piano-forte 1301 §329. COMPLAINTS [OR PETITIONS]. FORM No. 684 — For hire of personal property. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That between the day of , 19 , and the day of , 19 , the defendant hired from the plaintiff [horses, carriages, etc.], for which he promised to pay the plaintiff, on account thereof, the sum of $ , on the day of , 19 . 2. That said sum has not been paid, nor any part thereof. [Concluding part.] FORM No. 685 — Hire of furniture, with damages for ill-usage. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: For a first cause of action : 1. That on the day of , 19 , at , the defendant hired from the plaintiff [state what], the property of the plaintiff, for months then next ensuing, for the use of which he prom- ised to pay at the rate of $ per month, and agreed to return the same in good condition to the plaintiff at the expiration of said time, reasonable wear and tear excepted. 2. That said amount has not been paid, nor any part thereof. For a second cause of action : 1. That the value of the property so hired by the defendant as aforesaid was $ 2. That the defendant did not use said property in a reasonable manner, nor take due care of the same; that by his negligence and ill-use the same has become defaced and injured beyond the reason- able wear and tear thereof, and was returned to the plaintiff in said damaged condition, to the plaintiff's further damage in the sum of $ 3. [Same as paragraph 2, preceding form.] [Concluding part.] Chs. XCI, XCIL] COMPLAINTS.— CODE PROVISIONS. 1301 FORM No. 686 — For hire of piano-forte. [Title of court and cause.] The plaintiff complains of the defendant, and for cause of action alleges : 1. That on the day of , 19 , at , the defendant hired from the plaintiff one piano-forte, the property of the plaintiff, for the term of months then next ensuing, to be returned to this plaintiff at the expiration of said time in good condition, reason- able wear excepted ; that for the use of the same, defendant promised to pay plaintiff a reasonable sum [or state an amount agreed upon]. 2. That $ is a reasonable sum for the hire of the same, which sum, on the day of , 19 , became due from the defendant to the plaintiff. 3. [Same as paragraph 2, form No. 681.] [Concluding part.] CHAPTER XCII. Hotelkeepers or Innkeepers. Page % 330. Code provisions 1301 •§ 331. Complaints [or petitions] 1308 Form No. 687. Against an innkeeper, for loss of baggage 1308 Form No. 688. To recover for loss of pocket-book containing money 1309 Form No. 689. Against innkeeper, for refusal to receive and lodge guest 1309 Form No. 690. By innkeeper, for board and lodging 1310 •S 332. Answers 1310 Form No. 691. Defense that plaintiff was not a guest 1310 Form No. 692. Defense where moneys [or other valuables] lost were not deposited with th,e innkeeper for safe-keeping 1310 §330. CODE PROVISIONS. Innkeeper's liability. California, § 1859. The liability of an innkeeper, hotelkeeper, boarding-house and lodging-house keeper, for losses of or injuries to personal property, other than money, placed by his guests, board- ers, or lodgers under his care, is that of a depositary for hire ; pro- vided, however, that in no case shall such liability exceed the sum Jury's PL— 83. 1302 INNKEEPERS. [Tit. XII. of one hundred dollars for each trunk and its contents, fifty dollars for each valise or traveling-bag and contents, and ten dollars for each box, bundle, or package and contents, so placed under his care, unless he shall have consented in writing with the owner thereof to assume a greater liability. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the- provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Arizona, Rev. Stats. 1901, fl 2919. 3014. c lowa, Ann. Codes 1897, § 3138 e Montana, Rev. Codes 1907, § 5164. §3766; Ann. Stats. (Cobbey), §6390 b Colorado, Rev. Stats. 1908, §§3011, a Missouri, Ann. Stats. 1906, §7579. f Nebraska, Comp. Stats. Ann. 1909,. g North Dakota, Rev. Codes 1905, § 5476. b Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), § 2853; Comp. Laws. 1909 (Snyder), §3014. i South Dakota, Rev. Codes 1903, C. C. §1381. i Wis- consin, Stats. 1898 (San. & Ber. Ann.), § 1726. tices, stating that such places for safe- deposit are provided for the use and ac- commodation of the inmates thereof, shall not be liable for the loss of any a Arizona, fl 2919. An innkeeper is liable for all losses of, or injuries to, personal property placed or left by his guests under his care; unless occasioned by an irresistible, superhuman cause, by a public enemy, by the negligence of the owner, or by the act of some one whom he brought into the inn. bi Colorado, § 3011. The landlord or keeper of any hotel or public inn shall not be liable for the loss of any article or articles left by any guest or patron in any room or rooms assigned to or occu- pied by such guest or patron, in any event, greater than the sum of two hun- dred (200) dollars for all articles which may be lost by said guest or patron, ex- cept by an agreement in writing made by the landlord or keeper of such hotel or public inn, or person in charge of the office, assuming a greater liability. b2 Colorado, § 3014. None of the pro- visions of this act shall be construed so as in any event to render the landlord or keeper of a hotel or public inn in this state liable in a greater sum than the actual loss or damage sustained. c lowa, § 3138. Keepers of hotels, inns and eating-houses and steamboat own- ers, who shall provide and keep therein a good and sufficient vault or safe for the deposit of money, jewels and other valuables, and shall provide a safe and commodious place for the baggage, clothing and other property belonging to their guests and patrons, and keep posted up in a conspicuous place in the office or other public room, and in the guests' apartments therein, printed no- money, jewels, valuables, baggage or other property not deposited with them, unless such loss shall occur through the- fault or negligence of such landlord or keeper, or steamboat owner, his agent, servant or employee, but nothing herein, contained shall apply to such reasonable amount of money, nor to such jewels, baggage, valuables or other property as is usual, fit and proper for any such guests to have and retain in their apart- ments or about their persons. Hotel, inn, rooming-house or eating-house keepers shall have a lien upon, and may take and retain possession of, all bag- gage and other property belonging to or under the control of their guests or patrons, which may be in such hotel, inn, rooming-house or eating-house, for the value of their accommodations and keep, and for all money paid for or ad- vanced to, and for such extras and other things as shall be furnished, such guest or patron, and such property so retained shall not be exempt from attachment or execution to the amount of the reason- able charges of such hotel, inn, rooming- house or eating-house keeper, against such guest or patron, and the costs of enforcing the lien thereon. (Sup. 1907 as amended Mch. 12, 1909, Laws 1909, p. 185.) d Missouri, § 7579. No innkeeper in this state shall be liable for the loss of any baggage or other property of a. Ch. XCII.J CODE PROVISIONS. 1308 guest, caused by fire not intentionally produced by the innkeeper or his serv- ants, nor shall he be liable for the loss of any merchandise for sale or sample belonging to a guest, unless the guest shall have given written notice of hav- ing such merchandise for sale or sample in his possession after entering the inn, nor shall the innkeeper be compelled to receive such guest with merchandise for sale or sample; but innkeepers shall be liable for the losses of their guests, caused by the theft of such innkeeper or his servants, anything herein to the contrary notwithstanding. e Montana, § 5164, substantially same as Arizona fl 2919, except in line 3, after "placed" omit "or left" before "by his guests." f Nebraska, § 3766. The liability of the keeper of any inn or hotel, whether in- dividual, partnership, or corporation, for loss of or injury to personal property placed by his guests under his care, other than that described in the preced- ing section, shall be that of a depositary for hire; provided, however, that in no case shall such liability exceed the sum of one hundred and fifty dollars for each trunk and its contents, fifty dollars for each valise and its contents, and ten dol- lars for each box, bundle, or package, and contents, so placed under his care, all other miscellaneous effects including wearing apparel and personal belong- ings, fifty dollars, unless he shall have consented in writing with such guest to assume a greater liability. And pro- vided further whenever any person shall suffer his baggage or property to remain in any inn or hotel, after leaving the same as a guest, and after the relation of innkeeper and guest between such guest and the proprietor of such inn or hotel has ceased, or shall forward the same to such inn or hotel before be- coming a guest thereof and the same shall be received into such inn or hotel such innkeeper may at his option hold such baggage or property at the risk of such owner. g North Dakota, § 5476, substantially same as Montana § 5164, except, at the opening after "innkeeper" insert "or keeper of a boarding house" before "is liable"; also in line 2 after "guests" in- sert "or boarders"; also at the end after "inn" add "or boarding-house." h Oklahoma, § 2S53. Any innkeeper or keeper of a boarding-house is liable for all losses of, or injuries to, personal property placed by his guests or board- ers under his care, unless occasioned by an irresistible superhuman cause, by a public enemy, by the negligence of the owner, or by the act of some one whom he brought into the inn or boarding- house, and upon such property the inn- keeper or keeper of a boarding-house has a lien and a right of detention for the payment of such amount as may be due him for lodging, fare, boarding, or other necessaries by such guest or boarder; and the said lien may be en- forced by a sale of the property in the manner prescribed for the sale of pledged property. i South Dakota, C. C. § 13S1, substan- tially same as Oklahoma § 2853, except at the end after "property" add "or by the Code of Civil Procedure." J Wisconsin, § 1726. No innkeeper shall be liable for the loss of any baggage or other property of his guest caused by fire, not intentional, produced by the innkeeper or any of his servants; but every innkeeper shall be liable for any loss of any guest in his inn caused by theft or gross negligence of such inn- keeper or any of his servants. Limiting of liability. California, § 1860. If an innkeeper, hotelkeeper, boarding-house or lodging-house keeper, keeps a fire-proof safe, and gives notice to a guest, boarder, or lodger, either personally or by putting up a printed notice in a prominent place in the office or the room occu- pied by the guest, boarder, or lodger, that he keeps such a safe and will not be liable for money, jewelry, documents, or other articles of unusual value and small compass, unless placed therein, he is not 1304 INNKEEPERS. [Tit. XII. liable, except so far as his own acts shall contribute thereto, for any loss of or injury to such articles, if not deposited with him to be placed therein, nor in any case more than the sum of two hundred and fifty dollars for any or all such property of any individual guest, boarder, or lodger, unless he shall have given a receipt in writing therefor to such guest, boarder, or lodger. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: * Arizona, Rev. Stats. 1901, ff 2920. b Colorado, Rev. Stats. 1908, C. C. P. §3007. clowa, Ann. Code 1897, §3138. a Minnesota, Rev. Laws 1905, §2810. e Missouri, Ann. Stats. 1906, §7578. * Montana, Rev. Codes 1907, §5165. s Nebraska, Comp. Stats. Ann. 1909, §§3764, 3765; Ann. Stats. (Cobbey), §§6388, 6389. n North Dakota, Rev. Codes 1905, §5477. I Okla- homa, Rev. and Ann. Stats. 1903 (Wilson), §2854; Comp. Laws 1909 (Sny- der), §3015. i South Dakota, Rev. Codes 1903, C. C. §1383. k Washington, Code 1910 (Rem. & Bal.), §1203. i Wisconsin, Stats. 1898 (San. & Ber. Ann.), §1725. m Wyoming, Rev. Stats. 1899, §2514. a Arizona, f 2920. If an innkeeper keeps a fire-proof safe, and gives no- tice to a guest, either personally or by putting up a printed notice in a prom- inent place in the room occupied by the guest, that he keeps such a safe and will not be liable for money, jewelry, docu- ments or other articles of unusual value and of small compass, unless placed therein, he is not liable, except so far as his own acts contribute thereto, for any loss of or any injury to such arti- cles if not deposited with him and not required by the guest for present use. b Colorado, § 3007. Hereafter every landlord or keeper of a hotel or public inn in this state, who shall provide in the office of his hotel or inn, or other convenient place, a safe, vault, or other suitable receptacle, for the secure cus- tody of money, jewelry, ornaments or other valuable articles, other than neces- sary baggage, belonging to the guests or patrons of such hotel or public inn, and shall keep posted in a public and con- spicuous place in the office, public room and public parlors of such hotel or pub- lic inn, and upon the inside entrance door of every public sleeping-room in such hotel or public inn, a notice printed In English, stating such fact, shall not be liable for the loss of any money, jew- elry, ornaments or other valuable arti- cles, other than necessary baggage, sus- tained by such guest or patron by theft or otherwise, unless such guest or patron shall deliver such money, jewelry, orna- ments or other valuable articles, other than necessary baggage, to the landlord or keeper of such hotel or public inn, or person in charge of the office of such hotel or public inn, for deposit in such safe, vault or other receptacle; pro- vided, that such liability shall not be greater than the amount at the time of deposit declared by the guest or patron to be the value of the article deposited. c Iowa, § 3138, see note c to Cal. Civ. Code § 1859. d Minnesota, § 2810. Whenever the keeper of a hotel shall provide therein an iron safe suitable for the keeping of valuables, and shall keep posted con- spicuously in the office and on the inside of the entrance door to every bedroom, and to every parlor and other public room in the building, a notice to the guests that they may leave their money and other valuables with the proprietor for deposit therein, such keeper shall not be liable for the loss, by theft or other- wise, of valuables not so left for deposit, unless the loss occurs through the negli- gence of such keeper, or of some agent or servant employed by him. Every such proprietor or manager shall provide locks and bolts for all room doors. • Missouri, i 7578. No innkeeper in Ch. XCII.] CODE PROVISIONS. 1305 this state, who shall constantly have in his inn an Iron safe, in good order, and suitable for the safe custody of money, jewelry and articles of gold and silver • manufacture, and of the like, and who shall keep a copy of sections 7578 and 7579 printed by itself, in large plain Eng- lish type, and framed, constantly and conspicuously suspended in the office, barroom, saloon, reading, sitting and parlor room of his inn and also a copy printed by itself, in ordinary-sized plain English type, posted upon the inside of the entrance door of every public sleep- ing-room of his inn, shall be liable for the loss of any such articles aforesaid, suffered by any guest, unless such guest shall have first offered to deliver such property lost by him to such innkeeper, for custody in such iron safe, and such innkeeper shall have refused or omitted to take it and deposit it in such safe for its custody and to give such guest a re- ceipt therefor. f Montana, § 5165, same as Arizona 1 2920. gi Nebraska, § 3764. No innkeeper, or hotelkeeper, whether individual, part- nership or corporation, who constantly has in his inn or hotel a metal safe or suitable vault in good order, and fit for the custody of money, bank notes, jewelry, articles of gold and silver man- ufacture, precious stones, personal orna- ments, railroad mileage books or tickets, negotiable or valuable papers, and bul- lion, and who keeps on the doors of the sleeping-rooms used by guests suitable locks or bolts, and on the transoms and windows of said rooms suitable fasten- ings, and who keeps a copy of this sec- tion printed in distinct type constantly and conspicuously posted in not less than ten conspicuous places in all in said inn or hotel, shall be liable for the loss or injury suffered by any guest, un- less such guest has offered to deliver the same to such innkeeper or hotelkeeper for custody, in such metal safe or vault, and such innkeeper or hotelkeeper has omitted or refused to take it and deposit it in such safe or vault for custody and to give such guest a receipt therefor. Provided, however, that the keeper of any inn or hotel shall not be obliged to receive from any one guest for deposit in such safe or vault any property here- inbefore described exceeding a total value of three hundred dollars, atul shall not be liable for any excess of such property whether received or not. g2 Nebraska, § 3765. But such inn- keeper or hotelkeeper may by special arrangement with a guest receive for deposit in such safe or vault any prop- erty upon such terms as they may agree to in writing, but every innkeeper or hotelkeeper shall be liable for any loss of the above enumerated articles of a guest in his inn or hotel after said arti- cles have been accepted for deposit if caused by the theft or negligence of the innkeeper, hotelkeeper, or any of his servants. h North Dakota, § 5477, substantially same as Arizona fl 2920, except in line 2, after "innkeeper," insert "or board- ing-house keeper" before "keeps"; also in lines 3 and 6 and in the last line, after "guest," insert "or boarder." i Oklahoma, § 2S54, substantially same as North Dakota § 5477. i South Dakota, C. C. § 1383, same as North Dakota § 5477. k Washington, § 1203. No innkeeper who constantly has in his inn an iron safe or suitable vault in good order, and fit for the safe custody of money, bank notes, jewelry, articles of gold and silver man- ufacture, precious stones and bullion, and who keeps a copy of this section, printed by itself in large, plain Roman type, and framed, constantly and con- spicuously suspended in the office, bar- room, saloon, reading, sitting, and par- lor room of his inn, and also a copy printed by itself in ordinary-sized plain Roman type, posted upon the inside of the entrance door of every public sleep- ing room of his inn, shall be liable for the loss of any such article suffered by any guest, unless such guest has first offered to deliver such property lost by him to such innkeeper for custody in such iron safe or vault, and such inn- keeper has refused or neglected to re- ceive and deposit such property in his safe or vault, and to give such guest a receipt therefor: Provided, that all doors to rooms furnished to guests shall be provided with slide-bolts inside of such rooms on all doors; otherwise he shall be liable; but every innkeeper shall be liable for any loss of the above enumerated articles by a guest in his inn, when caused by the theft or negli- gence of the innkeeper or any of hia servants. 1306 INNKEEPERS. [Tit. XII. 1 Wisconsin, § 1725, substantially same be liable for the loss of any money, jew- as Missouri § 7578. elry or other valuables belonging to his m Wyoming, § 2514. Every landlord or guests or customers, unless such loss keeper of a public inn or hotel in this shall occur by the hand or through the state, who shall keep in his place of negligence of such landlord, or by a business an iron safe, in good order and clerk or servant employed by him in suitable for the purpose hereinafter such hotel or inn; provided, that noth- named, and who shall post or cause to ing herein contained shall apply to such be posted in some conspicuous place in amount of money or other valuables as his office, and on the inside of every en- is usually common and prudent for any trance door to every bedchamber, the such guest to retain in his room or about notice hereinafter mentioned, shall not his person. Lien for charges on baggage. California, § 1861. Hotel, inn, boarding-house and lodging-house keepers shall have a lien upon the baggage and other property of value of their guests, or boarders, or lodgers, brought into such hotel, inn, or boarding or lodging-house, by such guests, or boarders, or lodgers, for the proper charges due from such guests, or board- ers, or lodgers, for their accommodation, board and lodging, and room rent, [and] such extras as are furnished at their own request, with the right to the possession of such baggage or other property of value, until all such charges are paid. (Kerr's Cyc. Civ Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: Arizona, Rev. Stats. 1901, If 2916. a Arkansas, Dig. of Stats. 1904 (Kirby), §5054. b Colorado, Rev. Stats. 1908, §4013. c Hawaii, Laws 1907, p. 192, § 1. Arkansas, Dig. of Stats. 1904 (Kirby), § 4423. c Montana, Laws 1909, p. 159, ch. 110, § 1. a Nebraska, Comp. Stats. Ann. 1909, § 747x; Ann. Stats. (Cobbey), §3792. e Oregon, Gen. Laws 1907, p. 262, § 19. a Arizona, U 2126. Where two or savings bank, banking institution, or more persons hold an estate, real, per- trust company, transacting business in sonal or mixed, jointly, and one joint this state, in the name of two persons, owner dies before severance, his inter- payable to either, or payable to either or est in said joint estate shall not survive the survivor, such deposit, or any part to the remaining joint owners, but shall thereof, or any interest or dividend descend to and be vested in the heirs thereon, may be paid to either of said and legal representatives of such de- persons whether the other be living or ceased joint owner, in the same manner not; and the receipt or acquittance of as if his interest had been severed and the person so paid shall be a valid and ascertained. sufficient release and discharge to the b Arkansas, § 4423. All survivorships bank for any payment so made. (En- of real and personal estate are forever acted March 8, 1909.) abolished. d Nebraska, § 747x. When a deposit in c Montana, Laws 1909, p. 159, chap. 110, any bank in this state is made in the S 1. When a deposit has been made, or name of two or more persons, deliver- shall hereafter be made, in any bank, able or payable to either or to their sur- 1314 BAILMENT OR DEPOSIT. [Tit. XII. vivor or survivors, such deposit or any or interest or dividends thereon, may be part thereof, or increase thereof, may be paid to either of the said persons delivered or paid to either of said persons whether the other be living or not, and or to the survivor or survivors in due the receipt or acquittance of the person course of business. so paid shall be valid and sufficient re- e Oregon, Gen. Laws 1907, pp. 262, 267, lease and discharge to the bank for any § 19. * * * When a deposit has been payment so made. This section shall ap- made or shall hereafter be made in ply to all banking institutions, including the name of two persons, payable to national banks, within this state. (En- either, or payable to either or the sur- acted February 25, 1907.) vivor, such deposit, or any part thereof, Depositor must indemnify depositary. California, § 1833. A depositor must indemnify the depositary : 1. For all damage caused to him by the defects or vices of the thing deposited; and, 2. For all expenses necessarily incurred by him about the thing, other than such as are involved in the nature of the undertaking. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 5145. North Dakota, Rev. Codes 1905, § 5459. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2836; Comp. Laws 1909 (Snyder), § 2997. South Dakota, Rev. Codes 1903, C. C. § 13G4. Depositary's liability for negligence. California, § 1840. The liability of a depositary for negligence cannot exceed the amount which he is informed by the depositor, or has reason to suppose, the thing deposited to be worth. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 5152. North Dakota, Rev. Codes 1905, § 5466. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2843; Comp. Laws 1909 (Snyder), § 3004. South Dakota, Rev. Codes 1903, C. C. § 1371. Lien of depositary for hire, California, § 1856. A depositary for hire has a lien for storage charges and for advances and insurance incurred at the request of the bailor, and for money necessarily expended in and about the care, preservation and keeping of the property stored, and he also has a lien for money advanced at the request of the bailor, to dis- charge a prior lien, and for the expenses of a sale where default has been made in satisfying a valid lien. The rights of the depositary for hire to such lien are regulated by the title on liens. (Kerr's Cyc. Civ. Code.) Ch. XCIII.J CODE PROVISIONS. 1315 The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made In a lettered note succeeding and the difference there shown: • Alaska, Ann. Codes 1907, C. C. (Carter), §277. t> Arizona, Laws 1907, p. 59, ch. 47, §3. o Colorado, Rev. Stats. 1908, §4014. d Hawaii, Laws 1909, p. 177, § 2. e Idaho, Rev. Codes 1909, § 1546. t Iowa, Ann. Code 1897, Sup. 1907, § 3138a-27. s Kansas, Laws 1909, p. 629, §27. h Minnesota, Laws 1907, p. 123, § 1. ' Nebraska, Comp. Stats. Ann. 1909, § 6329; Ann. Stats. (Cobbey), §12176. i New Mexico, Laws 1909, p. 86, §27. * Oregon, Ann. Codes and Stats. 1902 (Bel. & Cot), §5704. i Utah, Comp. Laws 1907, §1403. m Wis- consin, Laws 1909, § 1684m-29. n Wyoming, Rev. Stats. 1899, § 2846. a Alaska, C. C. § 277. Any person who is a common carrier, or who shall, at the request of the owner or lawful pos- sessor of any personal property, carry, convey, or transport the same from one place to another, and any person who shall safely keep or store any grain, wares, merchandise, and i ersonal prop- erty at the request of the owner or law- ful possessor thereof, and any person who shall pasture or feed any horses, cattle, hogs, sheep, or other livestock, or bestow any labor, care, or attention upon the same at the request of the owner or lawful possessor thereof, shall have a lien upon such property for hia just and reasonable charges for the la- bor, care, and attention he has be- stowed and the food he has furnished, and he may retain possession of such property until such charges be paid. b Arizona, Laws 1907, pp. 59, 60. § 3. Any railroad company, express company or common carrier, having any undeliv- ered baggage or freight in its possession, may, after first giving five days' notice in writing by mail, to the consignee or owner thereof, if known, of its intention so to do, deliver such baggage, or freight, to a warehouseman for storage, upon such warehouseman's paying to the rail- road company, express company or com- mon carrier, the amount of freight or charges due thereon. The warehouse- man shall have a lien thereon for the amount of freight and charges so paid, with interest at the legal rate, as well as for storage. If said amounts are not paid to the warehouseman within six months after such freight or baggage is so received by him, he may sell the same, in the manner and subject to the same provisions as heretofore pre- scribed for the sale of other property on which charges are unpaid for a period of six months. (Enacted March ISth, 1907.) c Colorado, § 4014. Every common car- rier of goods or passengers who shall, at the request of the owner of any per- sonal goods, carry, convey or transport the same from one place to another; and any warehouseman or other person who shall safely keep or store any personal property at the request of the owner or person lawfully in possession thereof, shall in like manner have a lien upon all such personal property for his reason- able charges for the transportation, storage or keeping thereof, and for all reasonable and proper advances made thereon by him, in accordance with the usage and custom of common carriers and warehousemen. a Hawaii, Laws 1909, p. 177, § 2. A warehouseman shall have a lien upon any property stored with him until all reasonable charges thereon, are paid. Such lien shall have priority over other liens of any nature and over all attach- ments. (Enacted April 28, 1909.) e Idaho, § 1546. When any goods, mer- chandise or other property has been received by any railroad or express company, or other common carrier, com- mission merchant, innkeeper or ware- houseman for transportation or safe keeping, and is not delivered to the owner, consignee or other authorized person, the carrier, commission mer- chant, innkeeper or warehouseman may hold or store the same with some re- sponsible person, until the freight and all just and reasonable charges are paid. f Iowa, § 3138a-27. Subject to the pro- visions of section thirty (30), a ware- houseman shall have a lien on goods de- posited or on the proceeds thereof in his hands, for all lawful charges for storage and preservation of the goods; also for 1316 BAILMENT OR DEPOSIT. [Tit. XII. all lawful claims for money advanced, in- surrender of possession shall extinguish terest, insurance, transportation, labor, the lien herein given. (Amended April 5, weighing, coopering and other charges 1907.) and expenses in relation to such goods; j Nebraska, § 6329, same as Iowa also for all reasonable charges and ex- j 3l3Sa-27. penses for notice, and advertisements of . Ngw Mexic0) La ws 1909, pp. 86, 94, sale, and for sale of the goods where 2? game as Jowa § 3138a _ 27 . default has been made in satisfying the warehouseman's lien. (Sup. 1907.) g Kansas, Laws 1909, pp. 629, 635, § 27, k Oregon, § 5674, same as Alaska Civ. Code § 277. same as Iowa § 3138a-27. ] Utah > § 1403 - Every warehouseman or h Minnesota, Laws 1907, p. 123, §1. other P erson who sna11 safely keep or Whoever at the request of the owner or store any personal property at the re- legal possessor of any personal property Quest of the owner or person lawfully in shall store or care for or contribute in Possession thereof shall in like manner any of the modes mentioned in the next have a lien u P on a11 sucn Property for section to its preservation, care, or to ™* reasonable charges for the storage or the enhancement of its value, shall have keeping thereof, and for all reasonable a lien upon such property for the price and proper advances made thereon by or value of such storage, care or contri- him in accordance with the usage and bution, and for any legal charges against custom of warehousemen, the same paid by such person to any m Wisconsin, Laws 1909, § 1684m-29. other person, and the right to retain the same as Iowa § 3138a-27. property in his possession until such lien n Wyoming, § 2846, same as Colorado is lawfully discharged; but a voluntary § 4014. Endorsement on negotiable receipt of property delivered. California, § 1858c. If a negotiable receipt is issued for any property, neither the person issuing it nor any other person into whose care or control the property comes must deliver any part thereof without endorsing on the back of the receipt in ink, the amount and date of the delivery; nor can he be allowed to make any offset, claim, or demand other than is expressed on the face of the receipt, when called upon to deliver any property for which it was issued. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Arkansas, Dig. of Stats. 1904 (Kirby), §530. i> Iowa, Ann. Code 1897, Sup. 1907, § 3138a-12. c Kansas, Laws 1909, p. 629, §12. a Missouri, Ann. Stats. 1906, §7638. e Nebraska, Comp. Stats. Ann. 1909, §6314; Ann. Stats. (Cobbey), §12161. (New Mexico, Laws 1909, p. 86, §12. s Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §6759; Comp. Laws 1909 (Snyder), §8838. h South Dakota, Rev. Codes 1903, Pol. Code § 497. i Wisconsin, Laws 1909, § 1684m-13. a Arkansas, § 530. Warehouse receipts transportation receipts of every kind given by any warehouseman, wharfinger given by any carrier, boat, vessel, or other person or firm for any goods, railroad, transportation or transfer wares, merchandise, cotton, grain, flour company, may be transferred by en- or other produce or commodity, stored dorsement in writing thereon, and the or deposited, and all bills of lading and delivery thereof so endorsed, and any and Ch. XCIII.] CODE PROVISIONS. 1317 all persons to whom the same may be transferred shall be deemed and held to be the owner of such goods, wares, merchandise, cotton, grain, flour or other produce or commodity, so far as to give validity to any pledge, lien or transfer given, made or created thereby, as on the faith thereof, and no prop- erty so stored or deposited, as speci- fied in such bills of lading or receipts, shall be delivered except on surrender and cancelation of such receipts and bills of lading; provided, that all such receipts and bills of lading which shall have the words, "Not negotiable," plainly written or stamped on the face thereof, shall be exempt from the pro- visions of this act. b Iowa, § 3138a-12. Except as provided in section thirty-six (36), where a ware- houseman delivers part of the goods for which he had issued a negotiable re- ceipt and fails either to take up and cancel such receipt, or to place plainly upon it a statement of what goods or packages have been delivered he shall be liable, to any one who purchases for value in good faith such receipt, for failure to deliver all the goods speci- fied in the receipt, whether such pur- chaser acquired title to the receipt be- fore or after the delivery of any portion of the goods by the warehouseman. (En- acted April 1, 1907, Sup. 1907.) c Kansas, Laws 1909, pp. 629, 631, § 12, same as Iowa, Laws 1907, p. 157, § 12. d Missouri, § 7638. No public ware- house or public elevator receipt shall be issued except upon actual delivery of grain into such warehouse or elevator from which it purports to be issued, and which is to be represented by the re- ceipt; nor shall any receipt be issued for a greater quantity of grain than was contained in the lot stated to have been received, nor shall more than one receipt be issued for the same lot of grain except in cases where receipts for a part of a lot are desired, and then the aggregate receipts for a particular lot shall cover that lot and no more. In cases where a part of the grain represented by the re- ceipt is delivered out of such warehouse or elevator, and the remainder is left, a Jury's PI.— 84. new receipt may be issued for such re- mainder; but such new receipt shall bear the same date as the original, and shall state on its face that it is the balance of receipt of the original number, and the receipt upon which a part has been delivered shall be canceled in the same manner as if the grain it called for had all been delivered. In case it be desir- able to divide one receipt into two or more, or in case it be desirable to con- solidate two or more receipts into one, and the warehouseman or elevatorman consents thereto, the original receipt shall be canceled the same as if the grain had been delivered from such ware- house or elevator; and the new receipts shall state on their face that they are parts of other receipts or a consolidation of other receipts, as the case may be; and the numbers of the original receipts shall also appear upon the new ones is- sued explaining the change, and all new receipts issued for old ones canceled as herein provided, shall bear the same dates as those originally issued, as near as may be. (Amended Apr. 12, 1907, Laws 1907, pp. 285, 290.) e Nebraska, | 6314, same as Iowa § 3138a-12. f New Mexico, Laws 1909, p. 86, § 12, same as Iowa § 313da-12. g Oklahoma, § 6759, substantially same as Missouri § 7638, except omit "or pub- lic elevator" in line 2; also "or elevator" wherever the words occur throughout; also in line 5 from the end after "change" insert "; but no consolidation of receipts of dates differing more than ten days shall be permitted," before "and all new." h South Dakota, Pol. C. S 497. Upon the delivery of grain from store upon any receipt, such receipt shall be plainly marked across its face the word "can- celed", and shall thereafter be void and shall not again be put in circulation, nor shall grain be delivered twice upon the same receipt. * * * (Remainder the same as Oklahoma § 6759.) 1 Wisconsin, Laws 1909, § 1684m-13, substantially same as Iowa i 3138a-12. 1318 BAILMENT OR DEPOSIT. [Tit. XII. §334. COMPLAINT [OR PETITION]. FORM No. 693 — For damages against a bailee of goods. [Title of court and cause.] Plaintiff complains of defendant, and for cause of action alleges: 1. That on the day of , 19 , and at , plaintiff delivered to the defendant, and defendant received from plaintiff, the following-described goods and chattels, to wit: [Here describe], then and ever since the property of plaintiff; that said goods and chattels were at said time and thereafter of the value of $ ; that said goods and chattels were, upon said delivery, to be by the defendant safely and securely kept for the plaintiff, and returned and delivered to plaintiff on demand, for the compensation for such keeping of $ , to be paid to the defendant by plaintiff upon return and delivery thereof. [Or state when the said sum was to have been paid.] 2. That plaintiff duly performed all the conditions of said contract on his part, and on the day of , 19 , he offered to pay, and tendered to defendant, said sum of $ , for said keeping, and demanded of him the return of said goods and chattels; that plaintiff w r as then, and has ever since been, ready, able, and willing to pay said compensation for safe-keeping of said goods and chattels, but the defendant neglected and refused, and ever since has neglected and refused, to return said goods and chattels, or any part thereof, to plaintiff. [If any loss or damage has resulted to said goods, allege as fol- lows:] That the defendant so negligently and carelessly kept said goods, and took so little care thereof, that by and through the care- lessness and negligence of defendant and his servants said goods were lost to plaintiff [or were damaged in this, here state], all to the damage of plaintiff in the sum of $ Wherefore, plaintiff prays judgment against defendant for $ and plaintiff's costs of this action. A. B., Attorney for plaintiff. [Verification.] §335. ANSWERS. FORM No. 694— Denial of bailment. [Title of court and cause.] Defendant, answering plaintiff's complaint [or petition], denies: That he ever received the plaintiff's goods, or any thereof, de- Ch XCIV.] ANSWERS, ETC. 1319 scribed in the complaint [or petition] as bailee, as alleged therein, or otherwise, or at all. FORM No. 695 — Defense that thing deposited is held as a pledge. [Title of court and cause.] [After introductory part:] The defendant alleges that on or about the day of , 19 , the defendant loaned to the plaintiff the sum of $ , which loan is still due and unpaid ; that the said property bailed was delivered by the plaintiff to the defendant as security for said loan, and not as a bailment as alleged in said complaint. [Concluding part.] Form of findings in an action by an assignee, to compel defendant, a bank, to account for certain deposits made by assignor, and for the interest and profits accruing thereon, and to set aside certain alleged fraudulent transfers of property by defendant: Cross v. Sacramento Sav. Bank, 66 Cal. 462, 6 Pac. 94, 95. Form of answer in an action to recover money which had been deposited in a bank by a decedent in his lifetime, which, it was alleged, belonged to his estate, and therefore to the possession of the plaintiff, by virtue of his appointment as administrator: Wichita Nat. Bank v. Maltby, 53 Kan. 567, 36 Pac. 1000, 1001. Form of petition in an action to recover money deposited with a bank: Bank of LeRoy v. Harding, 1 Kan. App. 389, 391, 41 Pac. 680, 681. For special defenses interposed in an action to recover a bank deposit, see White- eett v. People's National Bank, 138 Mo. App. 81, 119 S. W. 999, et seq. Defense based upon ratification of transfer of a bank deposit, interposed in an action to recover such deposit; held, proper and sufficiently pleaded in Whitesett v. People's National Bank, 13S Mo. 81, 199 S. W. 999, 1000, 1002. Defense of adverse claim.— A bailee can not set up title of a third person In an action brought against him by bailor, except by authorization of that person: Dodge v. Meyer, 61 Cal. 405. See Bull v. Houghton, 65 Cal. 422, 425, 4 Pac. 529; Weatherly v. Straus, 93 Cal. 283, 287, 28 Pac. 1045. CHAPTER XCIV. Partnership and Accounting. Page § 336. Complaints [or petitions] 1 320 Form No. 696. For the dissolution of a partnership, and for an accounting and receivership 1320 Form No. 697. For an accounting after dissolution 1321 Form No. 698. To restrain late partner from continuing busi- ness 1322 Form No. 699. By one partner against another, for breach of agreement to pay firm debts 1322 f 3S7 Annotations 2323 1320 PARTNERSHIP AND A( COUNTING. [Tit. XII. §336. COMPLAINTS [OR PETITIONS]. FORM No. 696— For the dissolution of a partnership, and for an accounting and receivership. [Title of court and cause.] Plaintiff complains of defendant, and for cause of action alleges : 1. That on the day of , 19 , plaintiff and defendant formed and entered into a partnership under articles of copartner- ship, of which the following is a copy: [Here insert copy; or, if preferred, plead and set forth the same as an exhibit.] 2. That on the day of , 19 , the plaintiff and defendant commenced to carry on at [here state location], and have ever since continued to carry on said partnership business under said partner- ship contract at said place. 3. That since the commencement of said partnership business the defendant has from time to time used for his individual use and benefit large sums of money from the receipts and profits of said partnership business, exceeding the proportion thereof to which he was entitled, and has refused, and still refuses, to account with or to the plaintiff for the same, although plaintiff has often requested and demanded of the defendant that such accounting be had. 4. Plaintiff is informed and believes, and upon such information and belief alleges, that the defendant has received about the sum of $ , over and above his just proportion of the copartnership profits; plaintiff further alleges, that the defendant continues to collect the debts due the copartnership, and that he continues to appropriate the money so collected to his individual use. Wherefore, plaintiff prays judgment against defendant: That said partnership be dissolved ; that an accounting be taken of the affairs thereof, and that plaintiff have and recover of the defendant the amount due the plaintiff from the defendant as the same shall be by said accounting determined; that a receiver be appointed to take possession of the property and assets of said partnership, and that said receiver be authorized to sell the property of said partner- ship, and collect the debts due the same, and out of the money so realized that he pay the expenses of said receivership and the debts of said partnership, and that the residue, if any, be divided between plaintiff and defendant, according to their respective interests, under the agreement aforesaid; and for such other and further relief as to Ch. XCIV.] COMPLAINTS [OR PETITIONS].— FORMS. 1321 the court may seem just and equitable, and for plaintiff's costs of suit herein. A. B., Attorney for plaintiff. [Verification.] FORM No. 697 — For an accounting after dissolution. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on or about the day of , 19 , the plaintiff entered into partnership with the defendant for the purpose of carry- ing on the business of , at , for the term of years next thereafter. 2. That the plaintiff paid in, as capital to the said business, the sum of $ , and the defendant paid in, as capital, the sum of $ , and on the day of , 19 , the plaintiff and defendant com- menced said business as partners, under the firm name of , and continued in the same until the day of , 19 . 3. That at the time last mentioned, by the mutual consent of said partners, the said firm was dissolved. 4. That at such time the defendant agreed with the plaintiff to take the stock on hand at a valuation of $ , and also to collect the debts due said firm, and pay the debts due by the same, and render from time to time to the plaintiff, on demand, full statements of the debts due to and owing by said firm, and the payments made on account thereof, and on a final adjustment to pay over to the plaintiff his full share of the assets of said firm. 5. That the defendant, accordingly, proceeded to take possession of all the assets of said firm, and has collected the debts due to said firm and applied the proceeds to his own use, instead of paying the debts thereof, and distributing any balance coming to the plaintiff. 6. That the plaintiff has frequently requested the defendant to give him a statement of the assets of said firm which came to his hands, and of his proceedings in the premises, but the defendant has neg- lected and refused to render any such account, or to pay over to the plaintiff any portion of said assets. Wherefore, the plaintiff prays judgment, that the defendant be compelled to account with him for said assets, and that he be ordered to pay over to the plaintiff any balance found in his hands coming to him, and for such other relief as may be just, together with the costs of this suit. A. B., Attorney for plaintiff. [Verification.] 1322 PARTNERSHIP AND ACCOUNTING. [Tit. Xli. FORM No. 698 — To restrain late partner from continuing business [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That on the day of , 19 , the plaintiff and defendant executed under their hands and seals articles of copartnership for the regulation of their business as [state what business], at 2. That on the day of , 19 , said partnership was dis- solved by mutual consent, the plaintiff buying the defendant's inter- est in said business and all the stock in trade and good-will thereof, and the defendant in consideration of said purchase agreeing with the plaintiff not to carry on the same business in the same city in competition with the plaintiff. 3. That this plaintiff has duly performed all the conditions of said agreement on his part to be performed, and is engaged in continuing said business at the same place. 4. That the defendant in violation of said agreement has opened a store [or office], and is carrying on the business of therein, on Street, in said city, within blocks of the plaintiff's store [or office], and in competition therewith, and threatens to and will, unless restrained by this court, continue to carry on the same. i 5. That the said acts of the defendant in violation of said agree- ment are a continuing injury to and interference with the plaintiff's business, and prevent its establishment and greatly reduce the plaint- iff's profits, and can not be fully compensated in damages. Wherefore, the plaintiff prays, that the defendant be restrained by injunction from carrying on or in any wise engaging in said busi- ness in said city, and that the plaintiff have his costs of this suit. A. B., Attorney for plaintiff. [Verification.] FORM No. 699 — By one partner against another, for breach of agreement to pay firm debts. (In Gillen v. Peters, 39 Kan. 489 ; 18 Pac. 613.) [Title of court and cause.] Now comes J. C. Gillen, plaintiff, and alleges the following facts constituting his cause of action against F. J. Peters ; that is to say : 1. Said F. J. Peters and J. C. Gillen, the plaintiff herein, on or about the 1st day of August, 1886, purchased a herd of horses, to wit, 67 head, together, each owning an undivided one-half interest, and Ch. XCIV.J COMPLAINTS [OR PETITIONS]. —FORMS. 132;} on or about the 3d day of November, 1886, plaintiff and defendant purchased of the Chicago Lumber Company a bill of lumber, amount- ing in the aggregate to $338.15, for which lumber, purchased as aforesaid, plaintiff and defendant obligated themselves to pay said lumber company upon demand. Plaintiff further alleges, that on the 20th day of November, 1886, he sold to defendant his undivided one- half interest in the herd of horses, and at the same time, for a valua- ble consideration, defendant assumed the payment of said lumber bill, and did thereby obligate himself to pay said lumber company all of said indebtedness, which plaintiff and defendant were jointly and severally bound to pay as aforesaid. A copy of said agreement is hereto attached, marked "Exhibit A," and made part of this petition. 1 2. Plaintiff further alleges that defendant has wholly neglected and omitted to pay said indebtedness, or any part thereof, and by reason of such neglect and refusal to pay as agreed upon, said plaint- iff has been sued by the Chicago Lumber Company; that said claim is now due and unpaid. Wherefore, plaintiff asks judgment against the defendant in the sum of $342.85, with interest at seven per cent from the 20th day of November, 1S86, and costs of this suit. A. B., Attorney for plaintiff. [Verification.] Form of petition in an action on a contract to pay the debts of a partnership: Gillen v. Peters, 39 Kan. 489, 18 Pac. 613. Form of complaint in an action for an accounting and winding up of a partner- ship: Tarabino v. Nicoli, 5 Colo. App. 545, 546, 39 Pac. 362. Form of complaint in an action at law for the breach of an executory contract to form a future copartnership: Hill v. Palmer, 56 Wis. 123, 124, 14 N. W. 20, 43 Am. Rep. 703. §337. ANNOTATIONS. — Partnership and accounting. 1. Non-joinder of parties plaintiff. 2. Interest of single partner. — To what extends. 3. Joint action at law, when not maintainable. 4. General allegations showing purpose to refund. 5, 6. Nominal parties. — Set-off. 1. Non-joinder of parties plaintiff. — v. Earle Fruit Co., 112 Cal. 679, 682, 45 Where the evidence shows that the Pac. 7; Dewey v. Parcells, 137 Cal. 305, plaintiff had a partner who was inter- 306, 70 Pac. 174. See Williams v. South- ested with him in the demands sued upon, ern Pacific R. Co., 110 Cal. 457, 42 Pac. and who is not joined as a party to an 974. action, objection is deemed to be waived 2. Interest of a single partner extends unless raised in the pleading: Ah Tong to entire demand in actions upon con- i A copy of the agreement is annexed to the complaint, the same being merely a contract upon the part of the defendant to pay certain of the firm's debts, includ- ing the debt mentioned in the complaint. 1324 AGENCY. [Tit. XII. tract as well as In tort, and one partner may recover the whole amount due the firm unless the defendant pleads non- joinder: Williams v. Southern Pacific R. Co., 110 Cal. 457, 460, 42 Pac. 974. 3. A joint action at law can not be maintained against partners after a dis- solution of the copartnership: Ross v. Cornell, 45 Cal. 133, 136. 4. General allegations showing the purpose to refund or put the other party in statu quo are sufficient as a prelim- inary condition. The rule which re- quires a party to do equity before he is entitled to equity finds its application not in questions of pleading, nor bj r what the plaintiff offers to do therein, but in the form and frame and the or- ders and decrees both interlocutory and final, whereby equitable terms are inter- posed as a condition precedent to equitable relief granted: Dalpine v. Lume (Mo. App.), 122 S. W. 776, 778, (holding that the plaintiff was not re- quired to allege tender of moneys, which beyond dispute were paid to him. as an element in his action for disso- lution of partnership and an account- ing). See, also, as to the rule, Whelan v. Reilly, 61 Mo. 565; Paquin v. Mini- ken, 163 Mo. 79, 104, 106, 63 S. W. 417, 1092; Haydon v. St. Louis etc. R. Co., 117 Mo. App. 76, 106, 107, 93 S. W. 833. 5. Nominal parties as parties plaintiff need not be joined in an action by the firm: Phillips v. Penny wit, 1 Ark. 59; Wetherill v. McCloskey, 28 W. Va. 195. A nominal party, although not a neces- sary party, may be a proper party plaintiff: Phoenix Ins. Co. v. Hamilton, 14 Wall. (U. S.) 504. 6. A set-off against a nominal party is not available unless the same is against all the plaintiffs: Jones v. How- ard, 53 Miss. 707; cited in 8 Am. & Eng. Ann. Cases, 367, 370, note to Lasher v. Colton, 225 111. 234, 80 N. E. 122. CHAPTER XCV. Agency. Page 338. Complaints [or petitions] 1325 Form No. 700. By a foreign corporation against its agent and manager, for an accounting 1325 Form No. 701. By real estate agent, for commission 1328 Form No. 702. By real estate agent, for commissions for sale executed 1329 Form No. 703. Upon special contract to protect agent in his right to commissions 1329 339. Answers 1331 Form No. 704. Defense denying agency 1331 Form No. 705. Defense based upon special contract as to com- missions 1331 Form No. 706. Defense including counterclaim for damages for disobeying principal's orders in regard to stock transactions 1331 j 340. Annotations 13-33 Ch. XCV.] COMPLAINTS [OR PETITIONS].— FORMS. 1325 §338. COMPLAINTS [OR PETITIONS]. FORM No. 700 — By a foreign corporation against Its agent and manager, for an accounting. (In Great Western G. Co. v. Chambers, 153 Cal. 307; 95 Pae. 151.) x [Title of court and cause.] The plaintiff complains of the defendant, and for cause of action alleges : 1. That at all times mentioned herein the plaintiff was a corpora- tion duly incorporated and existing under and by virtue of the laws of the territory of Arizona, and had in all respects complied with the laws of the state of California authorizing the plaintiff to do business therein. 2. That heretofore, to wit, on or about the month of January, 1902, the defendant was employed by the plaintiff as its agent and general manager of its business in Shasta County, California, arid was placed in charge of plaintiff's office at Redding, in said county; that the duties of the defendant were to develop and promote certain mines owned by the plaintiff, to employ laborers and others for that pur- pose, receive and disburse the money of plaintiff in connection with its business, to keep accurate accounts and vouchers pertaining thereto, also from time to time to purchase for the plaintiff mining properties in the state of California; that defendant accepted said employment and undertook to carry on the business of the plaintiff as its agent and trustee, as aforesaid. That the defendant during the period of said employment, extend- ing from the aforesaid date up to about the 1st day of September, 1902, received from the plaintiff, as such agent and trustee, large sums of money from time to time, and was also intrusted with the duty of purchasing certain mining properties ; and that, for the pur- pose of making such purchases, a large amount of money was placed in his hands for the purpose of being paid thereon. Plaintiff avers that the defendant, unmindful of his duties in the premises, and l The sufficiency of this complaint (form No. 700), although not passed upon on appeal, was tested by demurrer in the trial court upon general grounds, and upon, the special grounds that the same was uncertain, ambiguous, and unintelligible, and that it improperly united several causes of action, upon all of which grounds the court overruled the demurrer: From the record in Great Western G. Co. v. Chambers, 153 Cal. 307, 95 Pac. 151. In a later appeal it was held that the facts alleged In this complaint are suffi- cient as declaring upon a cause of action arising upon the purchase by defendant as agent for and on behalf of the plaintiff: Great Western Gold Co. v. Chambers, 155 Cal. 364, 101 Pac. 6, 7. 1326 AGENCY. [Tit. XII. with the intention and purpose of defrauding plaintiff, failed and neglected to keep accurate and proper books of account showing the amount of moneys received by him and the disbursements made, and failed and neglected to take proper vouchers and receipts for money expended, and alleges that defendant converted a large portion of said money to his own use. That the plaintiff has made repeated demands upon defendant for the original books, papers, and vouchers pertaining to the business transactions by him for the plaintiff, but the defendant has wrong- fully refused and neglected, and still refuses and neglects, to render proper accounts of his doings in the premises; that the accounts between plaintiff and defendant are complicated in their nature, and that, owing to the fact that all of the books and papers kept by the defendant are in his possession and under his control, the plaintiff is unable at this time to set out more particularly the matters and things hereinbefore referred to, but expects to show the same by the books and papers in the possession and under the control of said defendant, and make discovery thereof by said books and papers and the testimony of said defendant. 3. That heretofore, to wit, on or about the 1st day of September, 1902, the defendant was duly elected and qualified as vice-president and director of the plaintiff company ; and also on or about the said date was duly appointed and constituted general manager of the business of plaintiff in the state of California, and that the plaintiff's property in said state was placed in his possession as agent and trustee for the plaintiff; [here follow averments to the same effect as the averments in the preceding paragraph relating to the duties of defendant as such director, receipts of money by him, misapplica- tion of funds, and conversion of the same to his own use, etc.;] that on or about the 20th day of September, 1902, defendant, while acting as agent and trustee for the plaintiff as aforesaid, was directed to proceed to Salt Lake City, and there purchase for the plaintiff, or procure a contract therefor, a certain mine known as the After- thought, in Shasta County, California, and procure the same as cheaply as possible, not paying more therefor than the sum of $150,000; that the defendant, acting upon said instructions, and as the agent and trustee for the plaintiff, proceeded to Salt Lake City, and while there, for the purpose of cheating and defrauding the plaintiff in connection with the purchase of said mining claims, Ch.XCV.] COMPLAINTS [OR PETITIONS].— FORMS. ];}27 entered into an agreement and conspiracy with one W. F. Snyder and one Mitchell, whereby the said Snyder was to take the title to said mines from one Tarbet for the sum of $90,000, and that there- upon said Snyder was to get an approval contract for the purchase of said mines of the said tenor and effect to the plaintiff herein for the sum of $150,000; that the plaintiff herein, without knowledge of said agreement and conspiracy, accepted the contract from said Snyder at the suggestion and direction of defendant, and paid thereon to said Snyder the sum of $20,000 as the first payment, the balance of said $150,000 to be paid as follows : $90,000 on the 20th day of September, 1903; $40,000 on the 20th day of March, 1904; that said Snyder, having received said money, paid $10,000 upon the contract which he had previously made regarding the said property with said Tarbet, and that the remaining $10,000 was divided be- tween said Snyder, said Mitchell, and the defendant herein, and plaintiff is informed and believes, and so charges the facts to be, that defendant received a large portion thereof, the exact amount plaintiff is at this time unable to state, but expects to show the same and make discovery thereof by the books and papers in possession and under the control of said parties, and by the testimony of said parties; that owing to the aforesaid facts plaintiff is unable at this time to set forth more specifically said transactions ; that thereafter this plaintiff paid upon said contract to the said Snyder the sum of $110,000 in full payment and discharge of the same, making in all the sum of $130,000 paid thereon ; that thereby there was lost to this plaintiff, and plaintiff was damaged, by reason of said fraudulent agreement of conspiracy and acts upon the part of said defendant, in the full sum of $40,000. [Here follow averments as to other pur- chases made by defendant in his capacity as said trustee, and of secret profits derived therefrom, and the fraudulent conversion of moneys representing said secret profits to defendant's own use, etc.] That the plaintiff is informed and believes, and so charges the facts to be, that the defendant, during the period aforesaid, and while acting as the agent and trustee, director, vice-president, and general manager of the plaintiff company aforesaid, received and converted to his own use, in his capacities aforesaid, the sum of at least $40,000. Wherefore, plaintiff prays : That an accounting be ordered herein of all the matters and things hereinbefore set forth, and that the cor- 1328 AGENCY. [Tit. XII. rect amount due from the defendant to the plaintiff upon said account- ing be ascertained and settled, and a judgment be entered for plaintiff for the amount so ascertained to be due from the defendant to the plaintiff; and that the defendant be ordered and decreed to convey to the plaintiff and to assign to it any real estate in his pos- session and under his control belonging to the plaintiff, or to which the plaintiff may be entitled upon a hearing hereof, and also all con- tracts for the purchase of real estate entered into by the defendant in his own name for or on behalf of the plaintiff ; and that all matters and things connected with the agency and trusteeship of the defend- ant while acting in that capacity for the plaintiff be settled, ascer- tained, and determined, and a decree entered therefor; and that plaintiff have judgment for costs herein, and for such other and further relief as to this court may seem just and equitable in the premises. Bush & Perry, [Verification.] Attorneys for plaintiff. FORM No. 701 — By real estate agent, for commissions. (In Greenwood v. Burton, 27 Neb. 808; 44 N. W. 28.) [Title of court and cause.] 1. That on or about the 1st day of September, 1888, the plaintiff entered into the service of the defendant, G., at his request, as agent, to trade, exchange, and dispose of certain land described as follows : [Here described] ; that plaintiff negotiated the sale of said land belonging to the defendant, G., upon the terms and conditions and at the time agreed upon and suggested by defendant. 2. That the purchaser procured by the plaintiff for the defendant's aforesaid land was then and there willing, ready, and able to complete the purchase of the defendant's real estate upon the terms and condi- tions fixed and agreed upon by the defendant with the plaintiff. 3. That the plaintiff has duly performed all the conditions of said contract on his part to be performed. 4. That defendant has not paid the plaintiff the said sum, or any part thereof, for the aforesaid services, and there is now due the plaintiff from the defendant therefor the sum of $50, with interest on the same from September 1, 1888. [Prayer, etc.] A. B., Attorney for plaintiff. Ch.XCV.] COMPLAINTS [OR PETITIONS].— FORMS. 1329 FORM No. 702 — By real estate agent, for commissions for sale executed. (In Griffith v. Woolworth, 28 Neb. 715; 44 N. W. 1137.) [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on or about the day of , 19 , the defendant employed the plaintiff to find a purchaser for and to sell for the defendant certain real property, described as follows: [Here de- scribed], at a price and upon the terms stated and fixed by defendant, and defendant thereupon agreed to pay the plaintiff for his services, and as his compensation for finding such purchaser and making such sale, the sum of $600. 2. That about the day of , 19 , this plaintiff found a purchaser, and sold to him for the defendant the said premises at the price and upon the terms stated and fixed by the defendant, and thereupon the defendant became indebted to the plaintiff in the sum of $600 for said services of plaintiff in finding such purchaser and making said sale, and there is now due from the defendant to the plaintiff for said services, as his said compensation therefor, the sum of $600, with interest from the day of , 19 . [Concluding part.] FORM No. 703 — Upon special contract to protect agent in his right to com- missions. (In Myers v. Holton, 9 Cal. App. 114; 98 Pac. 197.) [Title of court and cause.] Comes now the plaintiff in the above-entitled cause, and complain- ing of the defendant, alleges : 1. That the plaintiff resides, and is engaged in the real estate busi- ness, in the city of Los Angeles, Los Angeles County, California. 2. That on the 27th day of July, 1905, D. Hutton, for a valuable consideration, executed and delivered to the plaintiff herein an option to purchase the land hereinafter referred to, together with certain other property, which said option is in the words and figures fol- lowing, to wit: "Searchlight, Nev., July 27, 1905. I, D. Hutton, in consideration of $1.00 do hereby give Lee R. Myers, or his assigns, an option to buy my Colorado River ranch, consisting of 160 acres desert claim, and 160 acres homestead claim, and one store and a business lot in Searchlight, Nevada, free and clear of encumbrance, 1330 AGENCY. • [Tit. XII. for a consideration of $8,000 net to me. This option to be good for sixty days from this date. D. Hutton." 3. That thereafter, to wit, on the 1st day of August, 1905, the defendant, G. L. Holton, executed and delivered to the plaintiff, in the said city of Los Angeles, for a valuable consideration, the follow- ing agreement, to wit: "Los Angeles, Cal., August 1, 1905. This certifies that L. R. Myers, real estate agent, introduced us by letter to D. Hutton of Searchlight, Nevada, and that we, B. W. Gerhart and G. L. Holton, are to see Mr. D. Hutton and look at his Colorado River ranches with a view of buying the property. We agree to protect the said L. R. Myers in the matter of his commission, if we, or our assigns, purchase the said property. G. L. Holton." 4. That thereafter, to wit, on or about the 1st day of September, 1905, the defendant and the said D. Hutton entered into an agree- ment of sale wherein the said Hutton agreed to sell to the defendant the property referred to in the foregoing instruments, and the defend- ant is now in the possession of the said property under said agree- ment, and is now, with the said Gerhart, the owner of the said prop- erty. 5. That the agreed purchase price of the said property was the sum of $12,000, of which the sum of $8,000 was to be paid to the said D. Hutton and the remaining $4,000 was to be paid to the plaintiff. 6. That plaintiff is informed and believes, and upon such informa- tion and belief alleges, that the said sum of $8,000, to be paid as aforesaid to said D. Hutton, has been paid. 7. That the said sum of $4,000, to be paid to plaintiff as hereinbe- fore alleged, has not been paid, nor any part thereof, except the sum of $500 ; and that the sum of $3,500, to be paid by the defendant to the plaintiff, remains wholly due, owing, and unpaid. Wherefore, plaintiff prays judgment against the defendant for the sum of $3,500, and for costs of suit. Andrew G. Park, and Theodore Park, [Verification.] Attorneys for plaintiff. Ch. XCV.] ANSWERS— FORMS. 1331 §339. ANSWERS. FORM No. 704 — Defense denying agency. [Title of court and cause.] [After introductory part:] For a separate defense against the complaint of plaintiff herein, defendant denies that , the party alleged in said complaint to have executed said deed [or other instrument], was defendant's agent for any purpose, or that said had authority to make or exe- cute or deliver any deed [or other instrument] conveying any right, title, or interest in or to the property described in the complaint herein. [Prayer, etc.] C. D., Attorney for defendant. [Verification.] FORM No. 705 — Defense based upon special contract as to commissions. (In Beatty v. Russell, 41 Neb. 321; 59 N. W. 919.) [Title of court and cause.] [After introductory part :] Defendant denies that he employed the plaintiff to sell the land referred to in said petition, but avers the fact to be that the firm of G. & B., composed of G. H. G. and the plaintiff, as partners, were employed to sell said farm upon the terms that the defendant was to receive $4,800 clear of all commissions for the land, and the said G. & B. were to have all over said $4,800 as their commission ; and if they sold the land for only $4,800 they were to have no commission from the defendant. Defendant further avers that said land was sold for $4,800, and no more, and therefore no commission whatever is due the plaintiff. [Prayer, etc.] C. D., Attorney for defendant. FORM No. 706 — Defense including counterclaim for damages for disobeying principal's orders in regard to stock transactions. (In Galigher v. Jones, 129 U. S. 193; 9 Sup. Ct. 335; 32 L. ed. 658.) [Title of court and cause.] [After introductory part:] 1. That plaintiff is a banker at Salt Lake City, and that the defendant has had for two years last past an account with him as such ; that the plaintiff, at the defendant 's request, and as his agent, bought, or caused to be bought, at the Mining Stock Exchange Board 1332 AGENCY. [Tit. XII. of San Francisco, California, certain mining stocks for and on account of this defendant, and at various times thereafter in 1877 and 1878, on the order and at the direction of this defendant, and as his agent aforesaid, bought and sold mining and other stocks up to about the date of the filing of said complaint; that at divers times during and between the dates above specified this defendant paid into plaintiff's bank sums of money on account of said purchases, and to the credit thereof, and which were so applied by plaintiff on defendant's order. 2. Defendant denies that at the date of the filing of the complaint the sum of five thousand dollars, or any sum, was due to the plaintiff on said account, or on any account, for loans or advances from plaintiff to defendant. Defendant alleges that it was agreed between the plaintiff and this defendant, in the transaction of the business of purchases of said stock by the plaintiff, that the same were made on defendant's credit, and that said stock was bought, and was to be held, subject to defendant's order at all times, this defendant agree- ing to pay said plaintiff commissions for his services as agent and an agreed rate of interest on any advances he might make; that at no time had the plaintiff any authority to either buy or sell stock on defendant's account except by his order. And by way of counterclaim the defendant alleges : 1. That on the 13th day of November, 1878, being at Virginia City, he ordered the plaintiff, who was then at Salt Lake City, by tele- graphic dispatch, to sell certain mining stocks then in his hands as defendant's agent, to wit, 320 shares of Justice stock, worth $9 per share ; 50 shares of Alta stock, worth $8 per share ; 200 shares of Tip Top stock, worth $1.60 per share; and to invest the proceeds in North Bonanza stock, another mining stock on the same board, and which the defendant had been investigating ; that the plaintiff received this dispatch in ample time to make the transaction as directed on that day, but refused and neglected to do so ; that the defendant relied on its being done, and agreed with another party to sell the stock he had ordered purchased; that the plaintiff did not give notice to the defendant of his refusal to comply with said order until several days afterwards, and then by letter; that afterwards, and without any order or orders so to do, the plaintiff sold said Alta stock at $7.75 per share, said Justice stock at $4.40 per share, and said Tip Top stock at $1.25 per share, making a net loss to defendant of $1,200; that the said North Bonanza stock was worth more than $2 per share Ch. XCV.] ANSWERS.— ANNOTATIONS. I333 on the said date, and that within five days thereafter it advanced to $5.60 per share, which latter amount per share the defendant would have realized if plaintiff had complied with said order, whereby the defendant, through said disobedience of orders in regard to said last-named stock, lost the sum of $6,125. Defendant further alleges, that in the month of November, 1878, the plaintiff, as defendant's agent, held for defendant 600 shares of the mining stock known as Challenge stock, and, without his consent, on the 27th and 29th of said month of November, sold the same for his, the plaintiff's, own use, to the damage of defendant in the sum of $2,850. 3. That on the 22d day of November, 1877, the plaintiff held for the defendant, as his agent as aforesaid, 50 shares of mining stock known as Ophir stock, worth at that date $37.50 per share, and on that day represented to defendant that he had sold said stock for defendant, and so reported to him, when in fact he had not sold said stock, but continued to hold the same, and afterwards sold it for $100 per share, the advance amounting to $3,125, which is justly due from the plaintiff to the defendant. [Prayer, etc.] C. D., Attorney for defendant and counterclaimant. [Verification.] Form of complaint in an action by a broker for commissions: Rogers v. Duff, 97 Cal. 66, 67, 31 Pac. 836. Form of findings of fact and of law in an action to recover commission for the sale of land, by the plaintiff, who procured a purchaser in compliance with the terms of a contract made with the defendant: Robinson v. Kindley, 36 Kan. 157, 12 Pac. 587. §340. ANNOTATIONS.— Agency. 1. Distinction between contract to find purchaser and contract to sell. 2. Parol contract to find purchaser. 3. Oral offer to buy. 4. Formal tender of purchase price. — When unnecessary. 5. Action to recover commission. — Complaint held sufficient. 6. Agency. — When admitted by the pleadings. 7. Departure by agent from his authority. 8, 9. Ratification by municipal corporation of unauthorized agent's acts. Plead- ing ratification. 10. Agent suing alone. 1. Distinction between contract to the following cases the right of the ■find purchaser and contract to sell. — A agent to his commissions on finding a distinction is made between the cases purchaser ready, willing, and able to where the plaintiff's employment was purchase was upheld: Finnerty v. Fritz merely to find a purchaser and cases 5 Colo. 174; Smith v. Fairchild, 7 Colo, where the employment was to sell. In 510, 4 Pac. 757; Buckingham v. Harris Jury's PL— 85. 1334 AGENCY. [Tit. XII. 10 Colo. 455, 15 Pac. 817, 818; Neilson v. Lee, 60 Cal. 555; Betz v. Williams & White L. & L. Co., 46 Kan. 45, 26 Pac. 456, 457; Neiderlander v. Starr, 50 Kan. 772, 33 Pac. 592, (reversing in effect Stewart v. Fowler, 37 Kan. 677, 15 Pac. 918); Stewart v. Fowler, 53 Kan. 537, 36 Pac. 1002, (modifying former decision in 37 Kan. 677, 15 Pac. 918, holding that the language in the original decision should be modified and limited, and that where, at the time of the sale, the pur- chaser was willing and able to carry out the contract, the subsequent default in the payment of a portion of the pur- chase price would not deprive the agent of the right to his commissions) ; Bell v. Kaiser, 50 Mo. 150; Hart v. Hoffman, 44 How. Pr. 168; Moses v. Bierling, 31 N. Y. 462; Lloyd v. Matthews, 51 N. Y. 124; Mooney v. Elder, 56 N. Y. 238; Doty v. Miller, 43 Barb. N. Y. 529; Fisk v. Henarie, 13 Ore. 156, 9 Pac. 322; Dela- plain v. Turnley, 44 Wis. 31. In the following, the right of the agent to the commissions depended upon a consum- mated sale under agreement with the owner: Helling v. Darby, 71 Kan. 107, 79 Pac. 1073, 1074, (where buyer and seller were not brought together by the agent). 2. Parol contract to find purchaser. — A parol contract is sufficient for the employment of a real estate agent to find a purchaser ready, able, and will- ing to purchase, and such contract is not within the statute of frauds: Long v. Thompson, 73 Kan. 76, 84 Pac. 552, (to recover commissions for finding pro- posed purchaser). 3. Oral offer to buy. — When an agent under an authority to sell finds and brings to the owner a party ready, able, willing, and anxious to buy, and who orally offers in good faith to buy at the owner's price, named in the written contract, the agent is entitled to his commission as agreed: Carlin v. Lifur, 2 Cal. App. 590, 592, 84 Pac. Rep. 292, (to recover commission on sale of real property). 4. A formal tender of the price Is un- necessary until the owner should evince some disposition to accept it: Carlin v. Lifur, 2 Cal. App. 590, 592, 84 Pac. 292, (to recover commission on sale of real property). 5. Action to recover .commission. — Complaint held sufficient. — The follow- ing averments In the pleading in an. action by an agent to recover commis- sion from the owner of property for finding a purchaser ready, willing, and able to purchase have been held suffi- cient as stating a cause of action. After preliminai-y averments, the peti- tion reads : "(2) That on or about the day of Jaily, 1902, defendant employed plaint- iffs to procure a purchaser for cer- tain tracts of land owned by him and situate in the counties of Elk and Cow- ley, in the state of Kansas, for the sum of $7,300, and defendant then and there- promised and agreed to pay to the plaintiffs the sum of $300 for procuring a purchaser at the sum aforesaid, said sum to be paid upon such terms and in such manner as could be mutually agreed upon by the purchaser so pro- cured by the plaintiffs and the defend- ant. "(3) That in pursuance of the said agreement, verbally had between the plaintiffs and the defendant, the plaintiffs procured a purchaser for the defend- ant's lands and took such purchaser to the defendant, and such purchaser so as aforesaid procured by the plaintiffs for the defendant's said lands and the de- fendant then and there agreed upon the sale of the said lands for the aforesaid sum of $7,300, and agreed upon the times and terms of the payment thereof, and that said purchaser was ready, able, and willing to pay the said price for the said lands. Said agreement of sale between the purchaser so as aforesaid procured and said defendant, as to the price of the said lands and the terms of pay- ment for the same, being verbal," etc.: Long v. Thompson, 73 Kan. 76, 84 Pac. 552, (to recover commissions for finding proposed purchaser). 6. Agency. — When admitted by the pleadings. — A direct averment in the complaint, not denied by the answer, in effect that at the time of the execution of a chattel mortgage the party making the certificate was duly authorized to act in regard thereto as an agent of the mortgagee, is sufficient to show agency: San Francisco Breweries v. Schurtz, 104 Cal. 420, 428, 38 Pac. 92. 7. Departure by agent from his author- ity. — A departure by a real estate broker from the terms of his authority in ef- fecting a sale, becomes, on ratification by the principal, a part of the original Ch. XCVI.] ANNOTATIONS, ETC. 1335 contract, and the compensation fixed therein governs, and the broker is en- titled to recover in accordance there- with: Levy v. Wolf, 2 Cal. App. 491, 494, 84 Pac. 313. For a case in which the issue of authority of an agent was raised by the pleadings, see Wales v. Mower, 44 Colo. 146, 96 Pac. 971. 8. Ratification by municipal corpora- tion of unauthorized agent's acts. — A municipal corporation's act done through an unauthorized agent must be ratified in the manner in which original author- ity could have been conferred: See Mc- Cracken v. San Francisco, 16 Cal. 591; Grogan v. San Francisco, 18 Cal. 590; People v. Swift, 31 Cal. 26, 28. 9. Pleading the ratification is, however, unnecessary. It is sufficient to allege the execution by the defendant of the instrument upon which suit is brought, and which he has ratified: Porter v. Lassen Co. L. & C. Co., 127 Cal. 261, 271, 59 Pac. 563. 10. Agent suing alone. — An agent con- tracting in his own name for the benefit of his principal, the agency being known, may sue in his own name with- out joining his principal as a party plaintiff: Salmon v. Hoffman, 2 Cal. 138, 56 Am. Dec. 322; Ord v. McKee, 5 Cal. 515; Winters v. Rush, 34 Cal. 136. See Weaver v. Trustee & W. E. Canal, 28 Ind. 112; Rice v. Savery, 22 Iowa 470; Wright v. Tinsley, 30 Mo. 389; Chelten- ham Fire Brick Co. v. Cook, 44 Mo. 29; Considerant v. Brisbane, 22 N. Y. 389; Noe v. Christy, 51 N. Y. 270; Hubbell v. Medbury, 53 N. Y. 98. CHAPTER XCVI. Insurance. Page $ 341. Complaints [or petitions] 1336 Form No. 707. Upon fire insurance policy. (Common form.) . . 1336 Form No. 708. By mortgagee as assignee of the policy 1337 Form No. 709. Upon fire insurance policy. — Total loss 1337 Form No. 710. Upon fire insurance policy. — With averments as to waiver of written statement 1339 Form No. 711. On agreement to insure and give policy 1342 Form No. 712. By executor, on life policy 1343 Form No. 713. By assignee, in trust for wife of insured 1344 Form No. 714. By wife, partner, or creditor of insured 1344 Form No. 715. Interpleader to determine beneficial interest in life insurance policy 1345 Form No. 716. On a valued marine policy 1347 Form No. 717. On open marine policy 1348 Form No. 718. On vessel lost by perils of the sea 1349 Form No. 719. For partial loss and contribution. — Marine policy 1350 Form No. 720. Allegation of renewal 1350 Form No. 721. Averment where plaintiff purchased the prop- erty after insurance 1351 Form No. 722. Averment of waiver of condition 1351 § 342. Answers 1351 Form No. 723. Denial of policy 1351 Form No. 724. Denial of plaintiff's interest 1351 Form No. 725. Defense based upon denial of loss 1351 Form No. 726. Defense of misrepresentation and concealment 1352 1336 INSURANCE. [Tit. XII. Form No. 727. Defense setting forth "fallen building" clause in action upon fire insurance policy 1352 Form No. 728. Defense of overinsurance without consent of insurer 1352 Form No. 729. Defenses — (1) denial o.f furnishing proofs of death, (2) denial of indebtedness, (3) denial of waiver of conditions. — In general defense of forfeiture of policy for non-payment of premium 1353 Form No. 730. Transfer without insurer's consent 1354 Form No. 731. Defense that a fraudulent account of loss was given 1354 Form No. 732. Defense that risk was extra-hazardous 1354 Form No. 733. Denial of loss from peril or risk insured against 1355 Form No. 734. Defense that vessel was unseaworthy 1355 S 343. Annotations 1356 §341. COMPLAINTS [OR PETITIONS]. FORM No. 707 — Upon fire insurance policy. (Common form.) [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That the defendant is a corporation duly created by and under the laws of the state of , organized pursuant to an act of the legislature of said state, entitled [give title of act], passed [give date of passage], and the acts amendatory thereof. 2. That on the day of , 19 , the plaintiff being the owner of a dwelling-house and furniture therein in Street, in the city of , in consideration of the premium of $ , the defendant, by its policy of insurance in writing, a copy of which is hereto annexed, marked "Exhibit A," and made a part hereof, insured the plaintiff against loss or damage by fire to the amount of $ on said property, from the day of , 19 , at 12 o'clock noon, until the day of , 19 , at 12 o'clock noon. 3. That the plaintiff has duly performed all the conditions on his part to be performed; that on the day of , 19 , said dwelling-house and furniture were totally destroyed [or greatly dam- aged, stating the extent thereof] by fire, which did not happen by [any of the causes excepted in the policy]. 4. That the plaintiff's loss thereby was $ 5. That the plaintiff immediately thereafter, on the day of , 19 , notified the defendant of said loss, and on the day Ch. XCVI.J COMPLAINTS [OR PETITIONS].— FORMS. 1337 of , 19 , and more than days prior to this action, furnished the defendant with due proof of said loss. 6. That no part of said loss has been paid, and the whole of said sum is now due thereon from the defendant to the plaintiff. [Concluding part.] FORM No. 708 — By mortgagee as assignee of the policy. [Title of court and cause.] [As in preceding form to fifth paragraph, substituting the original insured's name for the word "plaintiff."] 5. That on the day of , 19 , the said insured executed and delivered to the plaintiff his mortgage on said premises, to secure the sum of $ , and assigned said policy to the plaintiff as further security, and thereupon the defendant, at the request of the plaintiff and of the insured, endorsed on said policy, "Loss, if any, payable to [plaintiff] as his interest may appear." 6. That said mortgage and the debt secured thereby is wholly unpaid and unsatisfied. [Continue as in preceding form, averring performance of condi- tions, giving of notice, and proofs of loss by the original insured.] [Concluding part.] FORM No. 709 — Upon fire insurance policy. — Total loss. (In Clayburg v. Agricultural Ins. Co., 155 Cal. 708; 102 Pac. 812.) [Title of court and cause.] Plaintiff complains of defendant, and alleges : 1. That defendant now is, and at and during all the times herein- after stated was, a body corporate, duly created, formed, and organ- ized under the laws of the state of New York. 2. That on, to wit, the 8th day of March, 1905, at the city and county of San Francisco, state of California, defendant, in considera- tion of the payment to it by plaintiff of the sum of $60.60, did then and there execute and deliver to plaintiff, its certain policy of insur- ance in writing, a copy whereof is annexed hereto, marked "Exhibit A," 1 and made a part of this complaint, and in and by which said l Exhibit A to the foregoing form No. 709 (action upon an insurance policy) is a copy of said policy. The policy contains the following clause, which was the subject of much litigation over the losses from the great San Francisco fire, April 18 to April 21, 190G, and upon which the defenses to the actions instituted upon policies were generally based. The clause referred to is as follows: "If a building or any part thereof fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease." 1338 INSURANCE. [Tit. Xll. defendant did insure plaintiff for the term of one year from the 23d day of April, 1905, at noon, to the 23d day of April, 1906, at noon, against all loss or damage by fire except as in said policy provided, to an amount not exceeding $6,000, on the property described in the slip attached to said policy, which slip was then and there attached to said policy, and is in words and figures as follows, to wit : [Here follows copy of said slip set out in haec verba, describing the property insured, its location, and granting permission to make alterations, repairs, to use electric power, and to effect other insurance.] 3. That on said 8th day of March, 1906, and at the time of the exe- cution and delivery of said policy of insurance, and continuously thereafter, up to and including the time of the fire hereinafter men- tioned, plaintiff was the owner in fee-simple of the ground on which the building described in said slip was erected, and plaintiff at and during all said times was the sole owner of said brick building and of all the property described in and insured by said policy of insurance. 4. That at and during all said times, said building was occupied as an art store, and was known and designated as No. 113 Geary Street, in said city and county. 5. That on the 19th day of April, 1906, all the property described in and insured by said policy of insurance was totally destroyed by fire ; that the destruction of said property was by fire direct, and was not caused directly or indirectly by invasion, insurrection, riot, civil war, or commotion, or military or usurped power, or by order of any civil authority, or by theft, or by neglect of the insured to use all reasonable means to save and preserve the property at and after the fire, or by explosion of any kind, or by lightning, or by any cause or causes which by the terms of said policy of insurance are excepted therefrom. 6. That the building described in said policy and every part thereof fell as the result of said fire, and that the fall of said building and every part thereof was caused solely by said fire. 7. That the loss of plaintiff by said last-mentioned fire to said insured property was $55,159; that at the time of said fire the aggre- gate amount of insurance upon the property insured by said policy was $30,000 and no more. 8. That on the 4th day of June, 1906, at the city and county of San Francisco, state of California, plaintiff delivered to defendant a veri- Ch. XCVI.] COMPLAINTS [OR PETITIONS].— FORMS. 1339 fied proof of loss in writing of his said loss and interest in said prop- erty so destroyed as aforesaid, and did in all matters and things fully and completely perform all the conditions of said policy on the part of the insured to be kept and performed. 9. That more than sixty days have elapsed since delivery to defend- ant of said verified proof of loss ; that said defendant has not notified plaintiff of any objections to said proof of loss, and no disagreement has arisen between plaintiff and defendant as to the amount of plaintiff's loss; but defendant has failed and refused to adjust plaint- iff's loss unless plaintiff would agree in advance to accept from defendant, in full of plaintiff's said claim, a sum materially less than the proportion of said loss for which defendant is liable under said policy ; that the proportion of the loss of said insured property pay- able by defendant under its said policy of insurance is the sum of $6,000 ; that defendant has refused to pay its proportion of said loss to plaintiff, although demand therefor has been made ; that the amount owing by defendant to plaintiff for the loss as aforesaid sus- tained by plaintiff to the property insured by defendant under its said policy of insurance is the sum of $6,000, all of which is due and unpaid. Wherefore, plaintiff prays judgment against defendant for the sum of $6,000, with interest at the rate of seven per cent per annum from the 4th day of August, 1906, and for costs of suit. Naphtaly & Freidenrich, [Verification.] Attorneys for plaintiff. FORM No. 710 — Upon fire insurance policy. — With averments as to waiver of written statement. (In McCollough v. Home Ins. Co. of N. Y., 155 Cal. 659 ; 102 Pac. 814.) [Title of court and cause.] Comes now C. M. McCollough, the plaintiff herein, and by leave of court first had and obtained, files this, his amended complaint, and for cause of action against the defendant herein alleges: 1. That the defendant is a corporation, organized and existing under the laws of the state of New York, and licensed and empow- ered to transact business in its special line in the state of California. 2. That heretofore, to wit, on the 31st day of July, 1905, the plaint- iff was the owner of, and used and occupied as a dwelling-house only, that certain building located on the southwest corner of Villa and 13 40 INSURANCE. [Tit. XII. Diller streets, in the town of Watts, county of Los Angeles, state of California, together with certain household furniture, wearing ap- parel, family stores, books, pictures, silver and plated ware, musical instruments, and other personal effects, therein contained and located, and was the owner thereof during all the time since said 31st day of July, 1905, and up to and at the time of the destruction of all said property by fire, as hereinafter mentioned, and during all of said time continuously used and occupied said building only as a dwelling- house. That before said contract and policy of insurance was entered into between this plaintiff and defendant, and before said policy was issued by the defendant, this plaintiff fairly stated and disclosed to the defendant and to its agent the nature and character of the interest of plaintiff to and in the lot and parcel of land upon which said building was located, and then and there stated and disclosed to the defendant and its agent that plaintiff had purchased said real estate under a contract of sale from the Golden State Realty Company, a corporation, with its principal place of business in the city and county of Los Angeles, and was then paying the purchase price therefor in instalments, and that there was then due on said purchase price the sum of about $200, and that he, the plaintiff, did not at that time have a deed to said property ; that thereupon said defendant and its agents issued and delivered to this plaintiff its said policy of insur- ance covering the said property therein described, the same being the property herein set forth; that before said fire, and before said loss occurred, this plaintiff fully paid the balance due on the said purchase price of said real estate to said Golden State Realty Com- pany, and obtained a deed to said property ; that plaintiff has at no time since said policy was issued, as aforesaid, parted with any of his right, title, or interest to or in said property, but has at all times been the sole and exclusive owner thereof, except as aforesaid. 3. That on the 31st day of July, 1905, at the city of Los Angeles, state of California, in consideration of the payment by the plaintiff to the defendant of the premium of $46, which was received and accepted by defendant as aforesaid, made and delivered to plaintiff its policy of insurance in writing, covering all of the foregoing and above-mentioned and described property, a copy of which said policy is annexed to plaintiff's first amended complaint in this action, as "Exhibit A," and said exhibit A is made a part hereof by stipu- lation of the parties hereto. Ch. XCVI.] COMPLAINTS [OR PETITIONS].— FORMS. 1341 4. That on or about the 1st day of June, 1906, said dwelling-house and said furniture, stores, wearing apparel, family stores, books, pic- tures, silver and plated ware, musical instruments, and other personal effects therein contained, all of which were included in, and com- prehended and covered by, said policy, were totally destroyed by fire. That the plaintiff's loss on account of the destruction by fire of said dwelling-house, the said furniture, stores, wearing apparel, books, wares, pictures, musical instruments, and other personal effects, included in and covered by said policy, was the sum of $5,564.50, the same being the actual and reasonable cash value of said property at the time of its destruction by fire, as aforesaid. 6. That on or about the 4th day of June, 1906, this plaintiff gave to the defendant full and complete oral items and proof of his said loss on said property, and at said time rendered an oral statement to said company, stating the knowledge and belief of plaintiff, the said insured, as to the time and origin of said fire, and the interest of said insured and all others in said property, the cash value of each item thereof, and the amount of loss thereon, stating that there was no other insurance on said property, and giving all changes in the title, use, occupation, location, possession, and exposure of said property since the issuance of said policy, and by whom and for what purposes the said building and parts thereof were occupied at the time of said fire ; that defendant did not require said notice and said statement to be in writing, but then and there expressly waived said requirement, and then and there expressly waived written notice of loss, and then and there expressly waived a written, signed, and sworn statement, of the character aforesaid, in the manner and as follows, to wit : That defendant represented to, informed, and told plaintiff that defendant would not ask, require, or expect plaintiff to furnish said notice and said statement in writing, signed, and under oath, but that defendant was satisfied with the notice and statement then given and rendered by plaintiff as aforesaid; and defendant further represented and said to plaintiff that a written, signed, and sworn statement made no difference to defendant, as it intended to settle plaintiff's said loss with him in any event; that more than sixty days elapsed after giving said notice, and after rendering said statement aforesaid, and after ascertaining, estimat- ing, and giving satisfactory proof as aforesaid of said loss, before the commencement of this action ; that plaintiff has otherwise performed all the conditions of said policy to be performed by him. 1342 INSURANCE. [Tit. XII. 7. That on the 28th day of August, 1906, plaintiff furnished to said defendant, at its special instance and request, additional and supple- mental proof of plaintiff's said loss and interest of and in said prop- erty, in writing. 8. That after said fire, and before the commencement of this action, the plaintiff at divers times made demand on said defendant for pay- ment of his said loss, according to the terms of said policy, in the sum of $3,000, but the defendant refused, and still refuses, to pay the same. 9. That the defendant has not paid said loss, or any part thereof, and the same is now due, owing, and unpaid. Wherefore, plaintiff prays judgment against the defendant for the sum of $3,000, as provided for in said policy, and that plaintiff be given judgment for his costs, and for all other proper relief in the premises to which he may be entitled. C. W. Pendleton, [Verification.] Attorney for plaintiff. FORM No. 711 — On agreement to insure and give policy. [Title of court and cause.] [After introductory part :] 1. [Allege incorporation of defendants.] 2. That on the day of , 19 , the plaintiff applied to L. M., who was then and there the duly authorized agent of the de- fendants, for insurance against loss or damage by fire upon [describe what], the property of said plaintiff, and the defendants, by their said agent, in consideration of a premium of $ , to be paid them by the plaintiff, agreed to insure the plaintiff on the said [state what] from 12 o'clock noon of said day for the space of months, and to execute and deliver to the plaintiff within a reasonable and conven- ient time their policy of insurance therefor in the usual form of policy issued by them. 3. That the usual form of policy issued by the defendants agrees, among other things, to [set out legal effect of contemplated policy]. 4. That afterward, to wit, on the day of , 19 , the said property was damaged [totally destroyed] by fire, whereby the plaintiff sustained a loss to the amount of $ 5. That the defendants neglected and refused, and still refuse, to execute and deliver their said policy of insurance in writing to the plaintiff in pursuance of said agreement. Ch. XCVI.] COMPLAINTS [OR PETITIONS].— FORMS. 1343 6. That the plaintiff has duly performed all the conditions of said agreement and insurance on his part to be performed, and on the day of , 19 , notified the defendants of said loss, and on the day of , 19 , duly furnished the defendants with proofs of loss. 7. That although more than days have elapsed since said proofs were furnished, no part of said loss has been paid, and the whole thereof remains due and payable to the plaintiff. [Concluding part.] FORM No. 712 — Action by executor on life policy. [Title of court and cause.] The plaintiff complains of the defendants, and alleges : 1. [Allegation of incorporation.] 2. That on the day of , 19 , at , in considera- tion of the payment of the premium of $ annually [or other- wise] during life, the defendants, by their agents duly authorized thereto, executed their policy of insurance in writing to one L. M. on his life, in the sum of $ , a copy of which policy is hereto annexed, marked "Exhibit A," and made a part of this complaint [or petition]. 3. That on the day of , 19 , at , said L. M. died [but not by his own hands, or at the hands of justice, etc., — if such causes be excepted], having previously, and on the day of , 19 , made his last will and testament in due form, thereby appointing the plaintiff sole executor thereof. 4. That said last will and testament was duly proved and admitted to probate in the probate court of the county of , and letters testamentary thereupon, by an order of said court therein duly given and made in said proceeding, were issued to this plaintiff on the day of , 19 , and the plaintiff thereupon duly quali- fied as such executor, and entered upon the discharge of the duties of his said office. 5. That on the day of , 19 , the plaintiff furnished the defendant with proofs of the death of the said L. M., and that the said L. M. and the plaintiff each duly performed all the condi- tions of said policy of insurance on his part. 6. That no part of the said sum has been paid, and tfrat the whole thereof is now due thereon from the defendants to the plaintiff, as such executor. [Concluding part.] 1344 INSURANCE. [Tit. XII. FORM No. 713 — Action by assignee in trust for wife of insured. [Title of court and cause.] The plaintiff complains of the defendants, and alleges : 1. [Allegation of incorporation.] 2. That on the day of , 19 , at , in consideration of the payment of the premium of $ annually [or otherwise] during life, the defendants, by their agents duly authorized thereto, executed their policy of insurance in writing to one L. M. on his- life, in the sum of $ , a copy of which policy is hereto annexed, marked "Exhibit A," and made a part of this complaint [or peti- tion]. 3. That on the day of , 19 , the said L. M. [with the written consent of the defendants] duly assigned said policy of insurance to this plaintiff, in trust for E. M., his wife. 4. That up to the time of the death of said L. M. all premiums accrued upon said policy were fully paid. 5. That on the day of , 19 , at , said L. M. departed this life [but not by his own hands, or at the hands of jus- tice, etc., — if such be excepted causes of death]. 6. That said L. M. and the plaintiff each performed all the condi- tions of said insurance on his part, and the plaintiff, more than days before the commencement of this action, to wit, on the day of , 19 , gave to the defendants notice and proofs of the death of said L. M. as aforesaid, and demanded pay- ment of the said sum of $ 7. That said sum has not been paid, nor any part thereof, and the same is now due thereon from the defendants to the plaintiff. [Concluding part.] FORM No. 714 — Action by wife, partner, or creditor of insured. [Title of court and cause.] The plaintiff complains of the defendants, and alleges : 1. [Allegation of incorporation.] 2. That on the day of , 19 , at , in consideration of the payment by the plaintiff to the defendants of the [annual] premium of $ , the defendants executed to the plaintiff their policy of insurance upon the life of [her husband] L. M., of which a copy, marked "Exhibit A," is hereto annexed as a part of this complaint [or petition], and thereby insured the life of said L. M. in the sum of $ , payable to the plaintiff. €h. XCVI.] COMPLAINTS [OR PETITIONS].— FORMS. 1345 3. That the plaintiff had a valuable interest in the life of the said L. M. at the time of his death, and at the time of effecting the said insurance. [State nature of the interest.] 4. That on the day of , 19 , at , the said L. M. died [but not by his own hands, or at the hands of justice, etc.], and on the day of , 19 , the plaintiff furnished the defend- ants with proofs of the death of said L. M., and otherwise performed all the conditions of the said policy on [her] part. 5. That no part of the same has been paid, and the said sum is now due thereon from the defendants to this plaintiff. [Concluding part.] FORM No. 715 — Interpleader to determine beneficial interest in life insur- ance policy. (In Grand Lodge A. 0. U. W. v. Miller, 8 Cal. App. 25; 96 Pac. 22.) [Title of court.] The Grand Lodge Ancient Order of United Workmen of Wash- ington, a corporation, plaintiff, v. Ida Miller, and Mark A. Miller, her husband, and Ada Baptist, and Joseph Baptist, her hus- band, and Ada Baptist, execu- trix of the last will of Matilda F. Peacock, deceased, defend- ants. Comes now the plaintiff, and for cause of action complains and alleges : 1. That the plaintiff, Grand Lodge Ancient Order of United Work- men of Washington, is a fraternal beneficiary order, organized and incorporated under the laws of the state of Washington, and author- wed to do business in the said state. 2. That the defendants John Doe Miller, whose true Christian name is to the plaintiff unknown, and Ida Miller are husband and wife ; that the defendants Richard Roe Baptist, whose true Christian name is to the plaintiff unknown, and Ada Baptist are husband and wife; and that said marital relations existed at all the times herein- after mentioned ; that Ada Baptist is the administratrix of the estate of Matilda Peacock, deceased. 1346 INSURANCE. [Tit XII. 3. That on the 23d day of July, 1892, one William Peacock, being then a resident of the state of Washington, became a member of one of the subordinate lodges of plaintiff and the holder of a beneficiary certificate, by the terms of which the plaintiff agreed to pay to the beneficiary of said William Peacock, upon proof of the latter 's death, the sum of $2,000. 4. That the said William Peacock designated as his beneficiary under said beneficiary certificate Matilda Peacock, bearing the rela- tion to him of wife. 5. That the said William Peacock paid all dues and assessments levied against him by plaintiff until the 18th day of April, 1906, when he and his wife, Matilda Peacock, were both instantly killed in the great earthquake disaster of that date, at Santa Rosa, Sonoma Gounty, California ; and that there immediately became due from this plaintiff to the beneficiaries of the deceased William Peacock, upon their filing proof of death, the sum of $2,000. 6. That the said William Peacock left surviving him his daughter, Ada Baptist, who was also the daughter of Matilda Peacock, de- ceased; and the defendant Ida Miller, who was a daughter of said William Peacock by a former wife; that said William Peacock left no other child or children, or issue of any or other child or children. 7. That section 15 of article V of the constitution of the plaintiff, reads as follows: "Sec. 15. — Order of payment to beneficiaries. If one or more of the beneficiaries shall die during the lifetime of a member, the surviving beneficiary or beneficiaries shall be entitled to the benefit equally, unless otherwise provided in the beneficiary cer- tificate, and if all the beneficiaries shall die during the lifetime of the member, and he shall have made no other direction, the benefit shall be to his widow, if living at the time of his death; if he leave no widow surviving him, then said benefit shall be paid share and share alike to his children, his grandchildren living at the time of his death to take the share to which the deceased parent would be entitled, if living; if there be no children or grandchildren of the deceased member living at the time of his death, then said benefit shall be paid to his mother, if living; and if she be dead at the time of his death, then to his father, if living ; and if he be dead at the time of his death, then to his sister or sisters, share and share alike; and if he has no sisters living at the time of his death, then to his brother or brothers, share and share alike; and should there be no one living Ch. XCVI.J COMPLAINTS [OR PETITIONS].— FORMS. 1347 at the death of the member entitled to said benefit under the pro- visions hereof, then the same shall revert to the beneficiary fund of the grand lodge." 8. That upon proof of the death being filed with the plaintiff, it caused to be issued and sent to be delivered to Ada Baptist and Ida Miller, each as beneficiary of William Peacock, deceased, a draft in the sum of $1,000, and one payable to Ada Baptist and one payable to Ida Miller; that Ada Baptist accepted the draft payable to her, and cashed the same; that the draft payable to Ida Miller was, through a mistake of plaintiff's agent, delivered to Ada Baptist, who claimed the same as the property of the estate of Matilda Peacock, deceased. 9. That the defendants Ida Miller and Ada Baptist claim, and each of them claims, the remaining $1,000, as does also Ada Baptist as administratrix of the estate of Matilda Peacock, deceased; and the plaintiff can not safely pay the same to either of said claimants with- out an adjudication of the rights of defendants, and plaintiff has been obliged to employ attorneys for that purpose. 10. That the plaintiff herein pays into the clerk of said court the said sum of $1,000. 11. Wherefore, plaintiff prays : That the rights of the defendants in and to the above-mentioned $1,000 be determined, and that the plaintiff be relieved from any and all liability on account of the beneficiary certificate issued to the said William Peacock, deceased ; that the plaintiff be absolved and adjudged free from all costs in this action ; and for such other and further relief as to the court may seem meet and proper, and for an allowance of attorneys' fees out of said $1,000. Louis F. Hart, and A. A. Sanderson, [Verification.] Attorneys for plaintiff. FORM No. 716— Action on a valued marine policy. [Title of court and cause.] Plaintiff complains of defendant, and for cause of action alleges : 1. That the defendant was at all the times hereinafter mentioned, and now is, a corporation created, organized, and existing under the laws of the state of 2. That on the day of , 19 , in consideration of the premium of $ , paid to the defendant by the plaintiff, the 1348 INSURANCE. [Tit. XII. defendant made to the plaintiff a policy of insurance in writing, upon the ship described in the said policy, which policy is in the words and figures following, to wit: [Insert copy, or annex, and refer to the same as an exhibit.] 3. That said ship was then lying at the port of , preparing for a voyage from said port to in 4. That on the day of , 19 , the said ship sailed from said port of on the voyage described in said policy, and while proceeding thereon was by the perils of the sea wrecked and totally lost. [Or state other cause of loss.] 5. That the plaintiff was, at the time of the risk, and thereafter, until said loss, the owner of said ship, and was interested therein to an amount exceeding $ , namely, in the sum of $ , which was the value of said ship. 6. That plaintiff duly performed all of the conditions of said policy on his part, and after said loss and destruction of said ship, he gave, on the day of , 19 , to the defendant notice and proof of said loss and destruction, and demanded of defendant said sum of $ , the amount of said insurance money; but the defendant has not paid said money nor any part thereof, and the whole thereof remains due and unpaid from the defendant to plaintiff. Wherefore, plaintiff prays judgment against defendant for said sum of $ , and interest thereon from the day of , 19 , and plaintiff's costs of suit. A. B., Attorney for plaintiff. [Verification.] FORM No. 717— Complaint on open marine policy. [Title of court and cause.] Plaintiff complains of defendant, and for cause of action alleges : 1. That at all the times hereinafter mentioned the defendant was, and now is, a corporation created, organized, and existing under the laws of 2. That on the day of , 19 , in consideration of the premium of $ paid to it by the plaintiff, the defendant made to plaintiff a policy of insurance in writing, in the words and figures following, to wit: [Insert copy, or, if preferred, annex, and refer to the same as an exhibit.] 3. That the ship on which said insured property was laden [or was oh. XCVI.] COMPLAINTS [OR PETITIOXSJ.— FORMS. l;J49 about to be laden] was then lying at the port of , preparing for a voyage from said port to in 4. That plaintiff was at the time of the commencement of the risk, and at the time of the loss hereinafter mentioned, the owner of the property described in said policy, insured as aforesaid [or the special interest therein insured], and that plaintiff's said interest in said property exceeded the sum of $ ; that the value of said insured property laden on said ship was, when laden, and until the losa thereof hereinafter alleged, $ 5. That on the day of , 19 , the said ship sailed from said on the voyage described in the policy, and while proceed- ing thereon all of said insured property so laden on said ship [or the special interest of plaintiff therein insured] was destroyed by the perils of the sea [or state any other cause of loss insured against], to the loss of plaintiff in the sum of $ 6. That plaintiff duly performed all of the conditions of said policy on his part, and on the day of , 19 , he gave to defendant notice and proof of said loss, and demanded of the defendant the sum of $ , the amount of said insurance money, but the defendant has not paid the same, nor any part thereof, and the whole thereof is due and unpaid from the defendant to the plaintiff. Wherefore, plaintiff prays judgment against defendant for the sum of $ , and interest thereon from the day of , and plaintiff's costs of suit. A. B., Attorney for plaintiff. [Verification.] FORM No. 718 — On vessel lost by perils of the sea. [Title of court and cause.] Plaintiff complains of defendant, and for cause of action alleges: 1. [Averment of incorporation of defendant.] 2. That he was the owner of [or had an interest in] the ship (naming the same] at the time of its insurance and loss, as herein- after mentioned. 3. That on the day of , 19 , at , the defendant, in consideration of $ to it paid [or which the plaintiff then promised to pay] , executed and delivered to the plaintiff a policy of insurance upon the said ship, a copy of which is hereto attached, marked "Exhibit A," and made a part of this complaint. [Or whereby it promised to pay to the plaintiff, within days after Jury's PI.— 86. 1350 INSURANCE. [Tit. XII. proof of loss and interest, all loss and damage accruing to him by- reason of the destruction or injury of the said ship during its next voyage from to , whether by perils of the sea, or by fire, or by other causes therein mentioned, not exceeding $ .] 4. That the said vessel, while proceeding on the voyage mentioned in said policy, was, on the day of , 19 , totally lost and destroyed by the perils of the sea. 5. That the plaintiff's loss thereby was $ 6. That on the day of , 19 , the plaintiff furnished the defendant with proof of his loss and interest, and otherwise duly performed all the conditions of the said policy on his part. 7. That the defendant has not paid the said loss, and the same is still wholly due and unpaid from defendant to plaintiff. [Concluding part.] FORM No. 719 — For partial loss and contribution. — Marine policy. [Title of court and cause.] The plaintiff complains of the defendants, and alleges : 1-3. [As in preceding form.] 4. That on the day of , 19 , said vessel sailed from on the said voyage, and while proceeding thereon was, by the perils of the sea, stranded and damaged in her hull, machinery, and appurtenances, whereby it became necessary for the preservation of the vessel and her cargo to throw overboard a part of said cargo, and the same was accordingly thrown over for that purpose. 5. That by reason thereof, the plaintiff was compelled to expend $ in repairing said vessel at , and also to pay $ as contribution for the loss caused by said throwing overboard of part of the cargo. 6. That on the day of , 19 , at , the plaintiff gave to the defendants due notice and proof of the loss as aforesaid, and otherwise duly performed all the conditions of said policy of insurance on his part. 7. [Same as paragraph 7, preceding form.] [Concluding part.] FORM No. 720 — Allegation of renewal. [Title of court and cause.] That on the day of , 19 , at , the defendants, by their agents duly authorized thereto, in consideration of $ to Cil XCVI.] ANSWERS— FORMS. 1351 them paid by the plaintiff, executed and delivered to this plaintiff their certificate of renewal of said policy, a copy of which is hereto annexed as a part of this complaint [or petition]. FORM No. 721— Averment where plaintiff purchased the property after insurance. [Title of court and cause.] That on the day of , 19 , at , with the consent of the defendants, in writing, on said policy, by their agents, the said [original insured] sold, assigned, and conveyed to the plaintiff his interest in the said [property] and in the said policy of insurance. FORM No. 722 — Averment of waiver of condition. [Title of court and cause.] On the day of , 19 , the defendants waived the condi- tion of the policy requiring [set out the condition], and released the plaintiff from the performance thereof by [state how condition was released], §342. ANSWERS. FORM No. 723— Denial of policy. [Title of court and cause.] The defendant answering to the plaintiff's complaint [or petition] : Denies that he ever made or delivered the policy of insurance therein alleged, or any policy of insurance whatsoever, upon the property described [or upon any property belonging to plaintiff] [Etc.] FORM No. 724— Denial of plaintiff's interest. [Title of court and cause.] [After introductory part:] Defendant denies that the plaintiff owned or had any insurable interest whatever in the goods or chattels [or premises] in the com- plaint [or petition] described at the time of the happening of the loss in said complaint [or petition] alleged. FORM No. 725 — Defense based upon denial of loss. [Title of court and cause.] [After introductory part:] Defendant avers that the loss therein described was not caused 1352 INSURANCE. [Tit. XII. during the term of said insurance by any of the perils insured against, but said loss was occasioned and caused wholly by [indicate the excepted peril]. FORM No. 726 — Defense of misrepresentation and concealment. [Title of court and cause.] [Introductory part:] That the defendants were induced to make and deliver the policy of insurance therein described by the fraudulent concealment and misrepresentations of the plaintiff made to the defendants of the following facts known to the plaintiff, the same being material to the risk and not known to the defendants, and which if known would have increased the premium, to wit: [Set out particular facts con- cealed or misrepresented.] FORM No. 727 — Defense setting forth "fallen building" clause in action upon fire insurance policy. [Title of court and cause.] Now comes the defendant, and for answer to plaintiff's complaint: Denies that no part of said building fell except as the result of said fire; but, on the contrary, alleges that before the loss or damage by fire, or any part thereof, in said complaint referred to occurred said building fell in whole or in part, other- wise than as the result of fire, by reason whereof all insurance by the said policy on said building did immediately cease, and the said policy was not in force or effect at the time the said property was damaged or destroyed by fire [etc.]. Wherefore, defendant prays to be hence dismissed with its costs. C. D., Attorney for defendant. [Verification.] [The defense set out in substance in form No. 727 was interposed to the com- plaint in form No. 709. The facts, however, did not sustain the averment of the defense, and judgment was therefore rendered the plaintiff and affirmed on appeal: Clayburgh v. Agricultural Ins. Co., 155 Cal. 708, 102 Pac. 812.] FORM No. 728 — Defense of overlnsurance without consent of insurer. [Title of court and cause.] [Introductory part:] 1. That by the terms of the said insurance policy the same shall become void in case the assured shall have, or shall thereafter pro- cure, other insurance, unless consent therefor was given by these defendants and endorsed on said policy. 2. That before [after; or, at the time of] granting the policy sued on, the plaintiff became insured on the same property in another company, to which the defendants never consented, nor was any consent endorsed on the policy. Ch. XCVI.] ANSWERS— FORMS. 1353 FORM No. 729— Defenses— (1) denial of furnishing proofs of death, (2) denial of indebtedness, (3) denial of waiver of conditions. —In general defense of forfeiture of policy for non-pay- ment of premium. (Blake v. National Life Insurance Co., 123 Cal. 470; 56 Pac. 101.) [Title of court and cause.] Now comes the defendant in the above-entitled action, and answer- ing the first cause of action set forth in plaintiff's complaint: [Denial of furnishing proofs of death.] Denies that on the 14th day of March, 1894, or at any other time, plaintiff furnished defendant with satisfactory proofs or any proofs of the death of said deceased, as required by the terms of said policy, and denies that said deceased in his lifetime, or that plaintiff as executrix, duly or at all performed all or any of the conditions and requirements, or conditions or requirements, of said contract of insurance on his or her part. [Denial of indebtedness under the policy.] Denies that there is now due and owing, or due or owing, from said defendant to said plaintiff, as such executrix or otherwise, upon or on account of said policy of insurance, the sum of $10,000, with interest thereon at the rate of seven per cent per annum from the 14th day of March, 1894, or that there ever was or is due or owing from defendant to plaintiff any sum of money whatever. 2. And answering the second cause of action set forth in plaintiff's complaint, defendant [here follows denial of furnishing proofs of death, and of performance of conditions, etc., as in first paragraph]. [Denial of averments as to waiver of conditions, etc.] Defendant admits that said deceased in his lifetime and said executrix did not perform the conditions in said policy of insurance, which provided that failure to pay any premium or any part thereof or any note given therefor when due should cancel the insurance and said contract, but denies that during the lifetime of said Charles E. Blake, or at any time, defendant for a valuable or any consideration, or at all, waived the said condition or any portion thereof. And in this behalf defendant avers, that it at no time made any agreement whatever with said Charles E. Blake, or with any other person, waiving the condition of payment of the premium payable on the 26th day of December, 1893, or extending the time of payment 1354 INSURANCE. [Tit. XII. of said premium, or any premiums, or giving him credit therefor, or that it at any time waived any of the conditions of said policy; on the contrary, defendant avers that it refused to extend the time of payment of said premium due on the 26th day of December, 1893, or to give said Charles E. Blake credit therefor. Wherefore, defendant prays to be hence dismissed with its costs. Dated this 15th day of November, 1894. Metcalf & Metcalf, [Verification.] Attorneys for defendant. FORM No. 730 — Transfer without insurer's consent. [Title of court and cause.] [Commencement.] 1. That the said insurance policy therein described provides, among other things, that in case of any transfer of the interest of the insured by sale or otherwise, without the consent of the insurer, the policy should from thenceforth be void. 2. That on the day of , 19 , and before the loss alleged, the interest of the insured in said property was transferred to , without the consent of the defendants, whereby the said policy became void. FORM No. 731 — Defense that a fraudulent account of loss was given. [Title of court and cause.] [After the introductory part:] That after the alleged loss and damage, and before the commence- ment of this action, the plaintiff made and delivered to the defend- ants a false and fraudulent account of the alleged loss and damage in this : [Here specify the particular acts of fraud.] [Concluding part.] FORM No. 732— Defense that risk was extra-hazardous. [Title of court and cause.] [After introductory part:] 1. [Allege provisions of policy exempting from liability for extra- hazardous risks.] 2. That after the making of said policy, and before the loss alleged, the plaintiff received into said store a large quantity of goods known and described as extra-hazardous, to wit, [here spec- Ch. XCVI.] ANSWERS.— FORMS. 1355 ify] ; and at the time of the said fire, the plaintiff had in said store a large quantity of such extra-hazardous goods. [Concluding part.] FORM No. 733 — Denial of loss from peril or risk insured against. [Title of court and cause.] Defendant denies that the said building was destroyed [or injured] during the term of said insurance by [here state risks or perils insured against], but, on the contrary, the defendant alleges that the loss was occasioned and caused wholly by [here state the excepted peril which caused the loss]. [Concluding part.] FORM No. 734 — Defense that vessel was unseaworthy. [Title of court and cause.] 1. [Allege provisions of policy, as to voiding the policy for unsea- worthiness.] 2. That at , and in the course of said voyage, and in refer- ence to the said voyage, and to any damage which the said ship sus- tained in the course thereof, a regular survey was made on the day of , 19 , and that upon such survey the said ship was declared unseaworthy, by reason of her being [state particulars, showing a ground of her condemnation as unseaworthy] . [Concluding part.] Form of answer in an action on an insurance policy, setting forth the defense based on a provision that in case of loss the insured should within sixty days render to the company an account of the loss, signed and sworn to: Western Home Ins. Co. v. Thorp, 48 Kan. 239, 240, 28 Pac. 991. Form of petition in an action to recover a sum alleged to be due on a matured endowment coupon issued by defendant to plaintiff: Hogan v. Pacific Endowment League, 99 ^-al. 248, 250, 33 Pac. 924. Form of petition in an action on a life insurance policy, containing a provision, relied upon by the defendant as not observed by decedent, that if the insured should become so intemperate as to impair his health or induce delirium tremens, the policy should become void: Pomeroy v. Rocky Mountain Ins. etc. Inst., 9 Colo. 295, 12 Pac. 153, 59 Am. Rep. 144. Form of petition in an action on an insurance policy, which did not properly describe the real estate on which the dwelling-house that was burned was situ- ated: Kansas Farmers' Fire Ins. Co. v. Saindon, 52 Kan. 486, 488, 35 Pac. 15, 16, 39 Am. St. Rep. 356. Form of complaint in an action on a fire insurance policy on growing crops: Denver Fire Ins. Co. v. McClelland, 9 Colo. 12, 9 Pac. 771, 59 Am. Rep. 134. For defenses in an action at law upon a policy of fire insurance held sufficient as against general demurrer, see Slafter v. Concordia Fire Ins. Co., 142 Iowa 116, 120 N. W. 706. 708. 1356 INSURANCE. [Tit. XII. For an agreed statement of the facts in an action to recover upon an Insurance policy, see Dodge v. Hamburg-Bremen Fire Ins. Co., 4 Kan. App. 415, 418, 46 Pac. 26, 26. §343. ANNOTATIONS.— Insurance. 1. Life insurance. — Essentials of a complaint in action to recover insurance moneys. 2. Insurable interest not required to be averred. 3. Defenses in action to recover insurance money. 4. Property insurance. — General rule as to pleading loss. 5. Averments as to ownership. 6. General averment as to performance of conditions. 7, 8. Defenses. — Any breach pleadable. 9, 10. Defense of fraudulent overvaluation. 1. LIFE INSURANCE.— Essentials of a complaint in action to recover insur- ance moneys. — A complaint in an action to recover insurance moneys, under the rule as established in the state of Colo- rado, is only required to allege primarily, first, the contract of insurance; secondly, the happening of the contingency where- by the insurer became liable to pay by reason of the contract; and thirdly, the amount of the indemnity to which the insurer or his successors, in the event of his death, is entitled: Grand Lodge A. O. U. W. v. Taylor, 44 Colo. 373, 99 Pac. 570, 571; Penn Mutual L. Ins. Co. v. Ornauer, 39 Colo. 49S, 90 Pac. 846; National Ins. Co. v. Sprague, 40 Colo. 344, 92 Pac. 227. 2. Insurable interest not required to be averred. — In an action to recover insur- ance upon the death of the insured, it is not necessary for the plaintiff to aver any interest in the life of the insured. If the insurer relies on the defense that the plaintiff had no insurable interest in the life of the insured, it devolves upon *it to plead and prove it. Where the question is not put in issue by the pleadings, the court rightfully refuses to submit it to the jury: Foresters of Amer- ica v. Hollis, 70 Kan. 71, 78 Pac. 160, 3 Am. & Eng. Ann. Cas. 535. 3. Defenses in action to recover insur- ance money. — In an action to recover insurance money instituted by the rep- resentative of the deceased, the follow- ing is given as a statement of affirma- tive defenses, which, although not sustained by the evidence in the case, is a fairly clear and concise example of pleading affirmative defenses in such actions, to wit: (1) That in his appli- cation for insurance the deceased falsely and fraudulently represented that he was in good health and free from disease; that he had had no sickness during the past five years; that he had no disease of the kidneys or urinary organs; that he had not consulted a physician for four years prior to the date of his ap- plication; that in truth and in fact, at the time of making such application, the deceased well knew that he was not in good health nor free from disease; that he had consulted a physician about three months prior to the date of his application, and was by him in- formed that he was afflicted with a dis- ease of the kidneys and urinary or- gans; that said representations were falsely and fraudulently made by the deceased for the purpose of obtaining said policies; and that the defendant relied on said false and fraudulent rep- resentations. (2) That in his application for insurance the deceased warranted the statements and answers therein made to be full, complete, and true, and that any untrue answers made therein or any concealment of the truth as to his health, physical condition, or per- sonal or family history should forfeit and cancel the policies issued pursuant to such application; that the applica- tion contained the warranties and rep- resentations set forth in the first affirm- ative defense; that the defendant relied on such warranties and representations, and issued the policies in consideration thereof; and that the warranties and representations were untrue. (3) That the application provides that the pol- icies should not take effect unless the first payment was made and the policies signed by the secretary and delivered during the continuance of the applicant in good health, and that at the time the first payment was made and the certificate signed and delivered the ap- plicant was not in good health: Fer- Ch. XCVI.] ANNOTATIONS. 1357 randini v. Bankers Life Assn., 51 Wash. 442, 99 Pac. 6, 7. 4. PROPERTY INSURANCE. — Gen- eral rule as to pleading loss. — A com- plaint in an action to recover upon a policy insuring against loss must allege facts bringing the destruction of the property within the protection of the policy; for example, where a policy in- sured plaintiff against loss arising from the death of his horses occurring from "disease or accident," a pleading is in- sufficient on demurrer where there is no averment that either disease or acci- dent was the cause of the death: Knut- zen v. National L. S. I. Co., 108 Minn. 163, 121 N. W. 632; Griggs v. St. Paul, 9 Minn. 246 (Gil. 231); Newman v. Ac- cident Assn., 15 Ind. App. 29, 42 N. B. 650; Weltin v. Ins. Co., 59 Hun 625, 13 N. Y. Supp. 700. 5. Averments as to ownership. — In an action to recover upon an insurance policy, an objection to the petition that it omitted to allege specifically that plaintiff owned the property insured at the time of the loss can not first be taken after judgment. Moreover, such an objection is without force where sufficient facts are alleged from which the ownership of the property at the time of the loss may be implied: Cox v. American Ins. Co., 137 Mo. App. 40, 119 S. W. 476, 478; Rodgers v. Insur- ance Co., 186 Mo. 248, 85 S. W. 369. 6. General averment of performance of conditions. — It is well settled under the Missouri authorities, that, under a general averment of performance of all conditions on his part to be performed, the plaintiff in an action on an insur- ance policy may prove any and all forms of waiver. It is said the proof of waiver is included in performance within the meaning of the allegation; but that the rule does not apply to other than insur- ance cases: Andrus v. Insurance Co., 168 Mo. 151, 67 S. W. 582; McCullough v. Insurance Co., 113 Mo. 607, 21 S. W. 207; Murphy v. Insurance Co., 70 Mo. App. 7S; Winn V. Insurance Co., 83 Mo. App. 123; Wicecarver v. Mercantile etc. I. Co., 137 Mo. App. 247, 117 S. W. 698, 7. Defenses. — Defense to action upon fire insurance policy based upon viola- tion of vacancy-permitting clause con- tained in the policy, considered: Na- tional M F. I. Co. v. Duncan, 44 Colo. 472, 98 Pac. 634, 638, 20 L. R. A. (N. S.) 240. 8. Any breach by the insured of a condition in the policy may be pleaded in defense in an action to recover thereon. It is a good defense to an action upon a policy of insurance to set out a breach of a condition under the contract imposing a duty upon the plaintiff to protect the property so far as practicable in case of fire, as where the defense alleges in this respect that the plaintiff permitted persons to enter the building after the fire, to handle and carry away some of the property covered by the policy, and to trespass upon the property: Slafter v. Concordia Fire Ins. Co., 142 Iowa 116, 120 N. W. 706, 70S; Thornton v. Security Co. (C. C), 117 Fed. 773; Oshkosh v. Manches- ter Co., 92 Wis. 510, 66 N. W. 525. 9. The defense of fraudulent overval- uation of property deemed sufficient: Slafter v. Concordia F. I. Co., 142 Iowa 116, 120 N. W. 706, 709; Behrens v. In- surance Co., 64 Iowa, 19, 19 N. W. 838; Bennett v. Insurance Co., 51 Conn. 504; American Ins. Co. v. Gilbert, 27 Mich. 429; Dunham v. Insurance Co., 34 Wash. 205, 75 Pac. 804; Hartford Co. v. Magee, 47 111. App. 367; Lycoming Co. v. Rubin„ 79 111. 402; Baker v. Insurance Co., 31 Ore. 41, 48 Pac. 699, 65 Am. St. Rep. 807; Phenix Co. v. Pickel, 119 Ind. 155, 21 N. E. 546, 12 Am. St. Rep. 393; Titus v. Insurance Co., 81 N. Y. 410. 10. Defense of overvaluation held good as against general demurrer, and that it was error to sustain such demurrer thereto. Defense is as follows: "(5) For a further and 5th defense, this de- fendant says: That the policy of insur- ance so issued to the plaintiff by the defendant, as in the plaintiff's complaint set forth, contained the following pro- vision: 'This policy is made and issued subject to the foregoing stipulations, conditions and by-laws of the National Mutual Fire Insurance Company.' That article thirty-two of the by-laws of the defendant company is as follows: 'The application, by-laws and policy constitute the entire contract be- . tween this company and the insured, and no officer, agent, or representative of the company is authorized, empow- ered, or permitted to make any other verbal or written agreement in refer- ence to any matter pertaining thereto.' That article fifteen of the by-laws of the defendant corporation is as follows: 'All applications for insurance must be 1358 NEGOTIABLE INSTRUMENTS. [Tit. XII. in writing, according to the printed forms prepared by the company. The description of the property and its loca- tion must be minute and particular, and the applicant must be responsible for the correctness of the application; and any mis>-epresentation in reference to said property shall void such policy, and no agreement or representation other than expressed in said application shall be binding upon the company.' That an application to the defendant by the plaintiff was made in writing for the issuance of the policy mentioned in complaint, which said application was duly signed by the plaintiff; that said application contained the following pro- visions: 'The above statements, notes, and by-laws, as printed, shall be the sole basis of this contract for insurance between said company and the insured, and are hereby made a part of this policy, if issued. Having read or heard read the foregoing application, and fully understanding its contents, I warrant it to contain a full and true description and statement of the condition, situa- tion as per diagram, value, occupation, and title of the property to be insured in the said company, and I warrant the answers to each of the foregoing to be true.' That said policy of insurance contained the following provision, to wit: 'This entire policy shall be void if the insurer has concealed, or mis- represented, in writing or otherwise, any material fact or circumstance con- cerning this insurance or the subject thereof.' And the defendant further says that in the plaintiff's application for said policy of insurance the plaintiff falsely stated and represented that the cash value of the insured building was $1,500; whereas, in truth and in fact, the cash value of said building at the time of said application, and at all times thereafter, did not exceed the sum of $200": National M. F. I. Co. v. Duncan, 44 Colo. 472, 98 Pac. 634, 20 L. R. A. (N. S.) 340. §344. CHAPTER XCVII. Negotiable Instruments. Page Complaints [or petitions] 1360 Form No. 735. By first endorsee against maker 1360 Form No. 736. By subsequent endorsee against maker 1361 Form No. 737. By first endorsee against first endorser 1361 Form No. 738. By subsequent endorsee against immediate endorser 1361 Form No. 739. By subsequent endorsee against first endorser 1361 Form No. 740. By subsequent endorsee against all prior parties 1362 Form No. 741. On note wrongly dated 1362 Form No. 742. On sight note 1362 Form No. 743. By domestic corporation, payee, against for- eign corporation 1363 Form No. 744. By payee as receiver against partners 1363 Form No. 745. By partners on note payable to firm 1363 Form No. 746. By payee against surviving partner 1364 Form No. 747. Averments as to partnership promissory note endorsed to plaintiffs 1364 Form No. 748. By partners on protested promissory note 1365 Form No. 749. On note signed by agent 1366 Form No. 750. Upon a promissory note executed by an agent of a, partnership 1366 Form No. 751. Upon a joint and several promissory note 1367 Form No. 752. On note executed in another state 1367 Ch. XCVIL] NEGOTIABLE INSTRUMENTS. 135'J Form No. 753. By payee of bill against acceptor for non-pay- ment 136 ^ Form No. 754. By payee of bill against drawer after non- acceptance 1368 Form No. 755. For non-payment of bill payable on specific date 1368 Form No. 756. By assignee of bill payable out of particular fund 1369 Form No. 757. By payee against drawee and acceptor 1369 Form No. 758. By payee, on bill accepted for bonor 1370 Form No. 759. By first endorsee of bill against acceptor 1370 Form No. 760. By endorsee of bill against first endorser 1371 Form No. 761. By remote endorsee against drawer and en- dorser for non-acceptance 1371 Form No. 762. By subsequent endorsee of bill against first endorser 1372 Form No. 763. By subsequent endorsee of bill against inter- mediate endorser 1372 Form No. 764. By subsequent endorsee of bill against last endorser 1372 Form No. 765. By first endorsee of bill against all prior parties 1373 Form No. 766. By subsequent endorsee against all prior parties 1373 Form No. 767. Against a bank upon acceptance, followed by refusal to pay cbeck 1374 Form No. 768. Upon an accepted and assigned draft 1374 Form No. 769. By payee of check against drawer 1375 Form No. 770. By endorsee or bearer of check against drawer 1375 Form No. 771. By endorsee or bearer of check against drawer and endorser 1376 Form No. 772. Omission to give notice excused 1376 ( 345. Answers 1376 Form No. 773. Defense of payment before endorsement 1376 Form No. 774. Defense of no consideration 1377 Form No. 775. Defenses of want of consideration and fraud.. 1377 Form No. 776. Defense of no consideration based upon false warranty of goods sold 1378 Form No. 777. Defense that note was executed for a pre-exist- ing indebtedness, and endorsed by an officer of a corporation without consideration 1379 Form No. 778. Defense of fraud in procuring note 1379 Form No. 779. Defense of mistake in amount of note 1380 Form No. 780. Defense that acceptance was for accommo- dation 1380 Form No. 781. Defense that defendant was a married woman, and signed the note as surety only for her husband 1380 Form No. 782. Defense of unauthorized and fraudulent accept- ance 1381 1360 NEGOTIABLE INSTRUMENTS. [Tit. XIL Form No. 783. Defense of alteration of instrument. (In gen- eral.) 1381 Form No. 784. Defense based upon material alteration in note by changing the name of the payor 1381 Form No. 785. Defense that note was given for losses sus- tained by sale of "options on 'change," a ficti- tious and gambling transaction 1382 Form No. 786. Defense of usury in making note 1382 Form No. 787. Defenses — (1) denials, (2) dishonoring of drafts due to acts of plaintiff, (3) that value of property was offset by value of drafts, (4) payment, (5) wrongful diversion of surplus money which should have been applied to payment, (6) non-observance of instructions and failure to enforce lien, (7) failure to de- liver agreed security. — Action upon guaranty of drafts with bills of lading attached 1383 Form No. 788. Action upon guaranty of drafts with bills of lading attached 1390 Form No. 789. Denial of endorsement 1393 Form No. 790. Denial of acceptance 1393 Form No. 791. Denial of acceptance, presentment, and protest 1393 Form No. 792. Denial of presentment 1394 Form No. 793. Denying excuse for non-presentment 1394 Form No. 794. Denial of notice 1394 Form No. 795. Counterclaim in action upon promissory note.. 1394 5 346. Annotations 1396 §344. COMPLAINTS [OR PETITIONS]. FORM No. 735 — By first endorsee against maker. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That on the day of , 19 , at , the defendant made his promissory note in writing, dated on that day, and thereby promised to pay to the order of one C. D. $ , months after said date. 2. That the said C. D. thereafter endorsed the said note to the plaintiff, and that the plaintiff is now the owner and holder thereof. 3. That the said sum has not been paid, nor any part thereof [except the sum of, etc.], and that the whole thereof [or state, if a portion] remains due and payable from the defendant to the plaintiff. [Concluding part] Ch.XCVII.] COMPLAINTS [OR PETITIONS].— FORMS. 1361 FORM No. 736 — By subsequent endorsee against maker. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. [Allegation of execution of note.] 2. That the same was thereafter endorsed by the said C. D. and one E. F. and one G. H., and thereby transferred to the plaintiff, who became, and now is, the owner thereof for value. 3. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 737 — By first endorsee against first endorser. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. [Allegation of execution of note.] 2. That then and there [or thereafter] the defendant endorsed said note to the plaintiff, who is now the owner and holder thereof. 3. That on the day of , 19 , said note was duly pre- sented for payment, and payment thereof demanded, but the same was not paid; that due notice of the said non-payment thereof was given to the defendant. 4. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 738 — By subsequent endorsee against immediate endorser. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , one C. D. made his promissory note in writing, dated on that day, and thereby prom- ised to pay to the order of E. F., $ , days after said date. 2. That the said E. F. thereafter endorsed the said note to the defendant, and the defendant endorsed the same to the plaintiff for value, and plaintiff is now the owner and holder thereof. 3. 4. [Same as paragraphs 3 and 4, form No. 737.] [Concluding part.] FORM No. 739 — By subsequent endorsee against first endorser. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That on the day of , 19 , at , one C. D. made his promissory note in writing, dated on that day, and thereby prom- 1362 NEGOTIABLE INSTRUMENTS. [Tit. XII. ised to pay to the defendant, or order, $ f months after said date. 2. That then and there [or thereafter] the defendant endorsed said note to one E. F., who thereafter by endorsement transferred the same to the plaintiff for value. 3. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 740 — By subsequent endorsee against all prior parties. [Title of court and cause.] The plaintiff complains of the defendants, and alleges : 1. That on the day of , 19 , at , the defendant Y. Z. made his promissory note in writing, dated on that day, and thereby promised to pay to the order of the defendant W. X. $ , months after said date. 2. That the said W. X. endorsed the said note to the defendant U. V., who endorsed the same to the plaintiff for value, and that the plaintiff is now the owner and holder thereof. 3. That on the day of , 19 , the same was duly pre- sented to the said Y. Z. for payment, but it was not paid, due notice of which was given to W. X. and U. V. [Or, aver excuse for non- presentment.] 4. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 741 — On note wrongly dated. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That on the day of , 19 , at , the defendant made and delivered to the plaintiff his promissory note in writing, of which the following is a copy : [Copy of note.] That by mistake said note was made to bear date on the day of , 19 , instead of the said day of , 19 , which latter date was in truth intended. 2. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 742— On sight note. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. [Allegation of execution of note.] Ch.XCVII.] COMPLAINTS [OR PETITIONS].— FORMS. 13(5 J 2. That on the day of , 19 , at , the said note was duly presented to the defendant [maker], with notice that pay- ment was required according to its terms. 3. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 743 — By domestic corporation, payee, against foreign corporation. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. [Allegation of incorporation of plaintiff.] 2. That the defendant is a corporation, duly chartered by and under the laws of the state of , pursuant to an act of the legis- lature of said state entitled [give title of act], passed [give date of enactment]. 3. That on the day of , 19 , at , the defendant, as such corporation, by its agent duly authorized thereunto, made its promissory note in writing, dated on that day, and thereby promised to pay to the order of the plaintiff, under its corporate name of , $ , months after said date. A copy of said note is hereto annexed, marked ''Exhibit A," and made a part of this complaint [or petition]. 4. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 744 — By payee as receiver against partners. [Title of court and cause.] The plaintiff complains of the defendants, and alleges: 1. That heretofore the defendants, under their firm name of Y. Z. & Co., made their promissory note in writing, dated the day of , 19 , and thereby promised to pay to the plaintiff, as such receiver [or his order], $ , months after said date. 2. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 745 — By partners on note payable to firm. [Title of court and cause.] The plaintiffs complain of the defendant, and allege: 1. [Allegation of copartnership.] 13G4 JNEGOTIABLE INSTRUMENTS. [Tit. XII. 2. That on the day of , 19 , at , the defendant made and delivered to the plaintiffs his promissory note in writing, and thereby promised to pay them under their firm name of A. B. & Co. [or their order], $ , months after said date [or on the day of , 19 ]. 3. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 746 — By payee against surviving partner. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That at the time of the making of the note hereinafter men- tioned, the defendant and one W. X. were partners, carrying on business under the firm name of Y. Z. & Co. 2. That on the day of , 19 , at , they made, under said firm name, their promissory note in writing of that date, a copy of which is as follows: [Insert copy.] 3. That on the day of , 19 , at , the said W. X. died, leaving the defendant the sole surviving partner of said firm. 4. [Same as paragraph 3, form No. 735.] Wherefore, the plaintiff prays judgment [etc.]. FORM No. 747 — Averments as to partnership promissory note endorsed to plaintiffs. (In Hallock v. Jaudin, 34 Cal. 167, 168.) * [Title of court and cause.] The plaintiffs complain of the defendants, and allege : 1. That on the 15th day of August, 1866, the defendants [E. Jaudin and G. Kennedy were, and during all the times herein mentioned have been, copartners doing business under the firm name of E. Jaudin & Co.] ; that on said date defendants, as such copartners, l While the complaint (omitting the bracketed portions) in Hallock v. Jaudin, supra, was held sufficient as against a demurrer, the court says that the same would have been more artistic and logical if it had alleged in the body of the com- plaint that the defendants were copartners in business at the time the note was made, and that the firm made it, and further that the complaint avers a promise to pay. (Under the existing California statute, a promise to pay is implied by the written instrument itself, as the same imports a consideration. See section 1614 of Kerr's Cyclopedic Civil Code of California and notes, and see Henke v. Eureka Endowment Assn., 100 Cal. 429, 432, 34 Pac. 1089. The portion of the complaint appearing in brackets corrects the remaining defects pointed out in the decision.) Ch. XCVIL] COMPLAINTS [OR PETITIONS].— FORMS. 1365 made their promissory note in writing, in the words and figures fol- lowing, to wit : [Here follows copy.] 2. That the defendants [thereupon] delivered the said note to the payee thereof, who afterwards, on the same day, [assigned and] endorsed in writing, and delivered the same to the plaintiffs, who ever since have been, and still are, the holders, and entitled to the payment thereof. 3. That the said note is due and payable, and payment thereof was demanded on the day the same became due, and often thereafter, but to pay the same or any part thereof the defendants have hitherto refused, and still do refuse. [Concluding part.] FORM No. 748 — By partners on protested promissory note. (In Hartzell v. McClurg, 54 Neb. 316; 74 N. W. 626.) [Title of court and cause.] The plaintiffs complain of the defendant, and allege : 1. That plaintiffs are partners, and doing business under the firm name of ; that on , 19 , and for a valuable considera- tion, , defendant, executed and delivered to plaintiffs his prom- issory note in writing, wherein and whereby he, defendant, promised to pay to plaintiffs' order the sum of $ , on , 19 , with interest thereon from date until paid. 2. That afterwards, to wit, on the day of , 19 , the plaintiffs, for a valuable consideration, sold and discounted said note; that at the maturity thereof the owners, in the usual course of busi- ness, caused said note to be presented at the National Bank, the place of presentation thereof for payment, and payment thereof was then and there by defendant refused; that said note was, by reason of the neglect and refusal of the defendant to pay the same, thereafter duly protested, at the cost of $ for protest fees ; that said note is wholly due and payable, and defendant wholly neglects to pay the same, or any part thereof. Wherefore, plaintiffs pray judgment against defendant [etc. ; in- cluding in the demand, besides the principal sum, protest fees and costs]. [Signatures, etc.] Jury's PL— 87. 1366 NEGOTIABLE INSTRUMENTS. [Tit. XIL FORM No. 749 — On note signed by agent. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , the defendant by his agent [or his attorney in fact], duly authorized, made hi» promissory note, and thereby promised to pay to the plaintiff [or his order] $ , months after said date. 2. [Same as paragraph 3, form No. 735.] Wherefore, the plaintiff prays judgment [etc.]. FORM No. 750 — Action upon a promissory note executed by an agent of a partnership. (In Redemeyer v. Henley, 107 Cal. 175; 40 Pac. 230.) l [Title of court and cause.] Plaintiff complains of defendants, and for cause of action alleges : 1. That the defendants, Whitcombe Henley, Barclay Henley, and Thomas B. Henley, are now, and at all times herein named have been, partners doing business in the county of Mendocino, state of Califor- nia, uiider the firm name and style of W. Henley & Bros. 2. That on the 15th day of April, 1893, the defendants, by their agent, W. Henley, thereunto duly authorized, made and executed their certain promissory note in writing, of which the following is & copy, to wit: [Here follows copy], and then and there delivered the same to plaintiff, who is now the lawful owner and holder thereof. 3. That the said promissory note has not been paid, nor any part thereof, nor any part of the interest thereon, but the whole amount thereof, to wit, the sum of $1,601.60, with interest thereon from the 15th day of April, 1893, at the rate of ten per cent per annum, still remains due and owing to this plaintiff from defendants. [Concluding part.] l The substance of an objection made to this complaint (corrected in this form) was that it did not show authority to make the note, because such authority was not expressly alleged nor implied in any of the express allegations. The court, how* ever, held that such authority is sufficiently implied in the express allegation that "defendants, Whitcombe Henley, Barclay Henley, and Thomas B. Henley, partners doing business under the firm name of W. Henley & Bros., by their agent, W. Henley, made and executed" the note. The truth of this allegation is admitted by a default: Redemeyer v. Henley, 107 Cal. 175, 177, 40 Pac. 230. Ch.XCVIL] COMPLAINTS [OR PETITIONS].— FORMS. 1367 FORM No. 751 — Upon a joint and several promissory note. (In Rhodes v. Hutchins, 10 Colo. 258; 15 Pac. 329.) [Title of court and cause.] [After introductory part:] 1. That the defendants are indebted to the plaintiffs on a certain promissory note payable to the plaintiff or order, of which the fol- lowing is a copy: [Copy of note inserted] ; that there are no credits or endorsements thereon. 2. That there is due and owing the plaintiff from defendants on said note the sum of $1,050, and interest thereon from December 3, 1881. 3. That defendants have not, nor has either of them, ever paid the sum of money above mentioned, or any part thereof. [Concluding part.] FORM No. 752 — On note executed in another state. (In Minneapolis Harvester Works v. Smith, 36 Neb. 616; 51 N. W. 973.) [Title of court and cause, etc.] Now comes the plaintiff in the above-entitled cause and complains of the defendant, and alleges : 1. That plaintiff was on the day of , 19 , and still is, a corporation duly organized under the laws of Minnesota. 2. That the defendant on the day of , 19 , made his certain promissory note at , Minnesota, and delivered the same to the plaintiff. Said note is hereto attached, marked "Exhibit A," and made a part of this petition. 3. That by the laws of , the statute provides that an action of debt on a promissory note may be commenced within ten years from the time the cause of action accrues. 4. That the defendant had resided in the state of since the giving of said note, and prior to the commencement of this action, for the space of three years. 5. That said note has not been paid, nor any part thereof, and there is now due and payable thereon the sum of $ , with interest at the rate of per cent per annum from the day of , 19 . [Concluding part.] [Copy of note attached as exhibit.] 1368 NEGOTIABLE INSTRUMENTS. [Tit. XII. FORM No. 753 — By payee of bill against acceptor for non-payment. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That on the day of , 19 , at , the defendant made and executed to the plaintiff his certain bill of exchange, in writing, of that date, a copy of which is here set forth: [Copy of bill] 2. That thereafter, to wit, on the day of , 19 , the defendant accepted said bill. 3. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 754 — By payee of bill against drawer after non-acceptance. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. [Allegation of execution of bill, as in form No. 753.] 2. That said bill was duly presented to the said [drawee] for acceptance, but was not accepted, and that due notice thereof was given to the defendant. 3. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 755 — For non-payment of bill payable on specific date. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That, on the day of , 19 , at , the defendant made and delivered to the plaintiff his bill of exchange in writing of that date, directed to one C. D., and thereby required the said C. D. to pay to the order of the plaintiff $ , on the day of , 19 , for value received. 2. That said bill was duly presented to the said C. D. for payment, but was not accepted or paid, and that due notice thereof was given to the defendant. 3. [Same as paragraph 3, form No. 735.] [Concluding part.] Ch. XCVIL] COMPLAINTS [OR PETITIONS].— FORMS. 1369 FORM No. 756 — By assignee of bill payable out of particular fund. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That on the day of , 19 , at , one C. D. made, executed, and delivered to one E. F., his bill of exchange or order, in writing, of that date, and directed the same to the defendant, and thereby required the defendant to pay to said E. F., out of the pro- ceeds of [state fund as in the bill], $ , days after the date thereof, for value received. 2. That on the day of , 19 , at , upon sight thereof, the defendant accepted the same, payable when in funds, from the proceeds of [etc., as in acceptance]. 3. That on the day of , 19 , at , said E. F. duly assigned said bill to the plaintiff, and that the plaintiff is now the owner and holder thereof. 4. That on the day of , 19 , at , the defendant had funds of the said C. D., proceeds of [etc., as stipulated in accept- ance]. 5. That on the day of , 19 , at , the plaintiff duly demanded payment thereof from the defendant. 6. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 757 — By payee against drawee and acceptor. [Title of court and cause.] The plaintiff complains of the defendants, and alleges: 1. That on the day of , 19 , at , the defendant Y. Z. made and delivered to the plaintiff his bill of exchange in writ- ing of that date, and directed it to the defendant W. X. [acceptor], and thereby required the said W. X. to pay to the plaintiff $ , days after the date thereof [or otherwise, as the case may be], for value received. 2. That on the day of , 19 , the defendant W. X., upon sight thereof, accepted the said bill. [Copy of bill and accept- ance.] 3. That the same was duly presented to the defendant W. X. for payment at maturity, but was not paid, notice of which was duly given to the defendant Y. Z. 4. [Same as paragraph 3, form No. 735.] [Concluding part.] DJ70 NEGOTIABLE INSTRUMENTS. [Tit. XII. FORM No. 758 — By payee, on bill accepted for honor. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , the defendant C. D. [drawer] made and delivered to the plaintiff his bill of exchange in writing, of that date, directed to one E. F., and thereby required the said E. F. to pay to the plaintiff $ , days after the date thereof [or otherwise, as the case may be]. [Insert copy of bill and acceptances.] 2. That on the day of , 19 , it was duly presented to the said E. F. for acceptance, but was not accepted, and notice there- of was given to the defendant C. D. 3. That on the day of ,19 , at , the defendant G. H. [acceptor for honor], upon sight thereof, accepted said bill for the honor of said C. D. 4. That the same was duly presented for payment, at maturity, to the said E. F., but was not paid, notice of which was given to the defendant C. D. 5. That thereupon the same was duly presented to the defendant G. H. [acceptor for honor], for payment, but was not paid, notice of which was given to the defendant C. D. 6. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 759 — By first endorsee of bill against acceptor. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , one C. D. made his bill of exchange in writing of that date, and thereby required the defendant to pay to the order of one E. F., $ , days after sight thereof, a copy of which is here set forth : [Insert copy.] 2. That on the day of , 19 , the defendant accepted said bill, and thereafter the said E. F. endorsed the same to the plaintiff. 3. [Same as paragraph 3, form No. 735.] [Concluding part.] Ch. XCVIL] COMPLAINTS [OR PETITIONS].— FORMS. 1371 FORM No. 760 — By endorsee of bill against first endorser. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , one C. D. made his bill of exchange in writing of that date, and thereby required one E. F. to pay to the order of the defendant $ , after sight thereof. 2. That the defendant endorsed the said bill to the plaintiff, and the same was accepted by the said E. F. on the day of , 19 , at . [Insert copy of bill, endorsement, and acceptance.] 3. That on the day of , 19 , at , the same was duly presented to for payment, but was not paid, of all which due notice was given to the defendant. 4. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 761 — By remote endorsee against drawer and endorser for non- acceptance. [Title of court and cause.] The plaintiff complains of the defendants, and alleges : 1. That on the day of , 19 , at , the defendant [drawer], by his bill of exchange, in writing, of that date, required one C. D. to pay to the order of one E. F. $ , days after the date thereof [or as the case may be]. 2. That the said G. H. [drawer] then and there delivered the same to the said E. F., who then and there endorsed it to the defendant L. M. 3. That on the day of , 19 , at , the defendant L. M. endorsed the same to the plaintiff for value. The following is a copy of said bill and the endorsements thereon: [Copy.] 4. That the said bill was duly presented to C. D. [drawee] for acceptance, but was not accepted, due notice of which was given to the defendants. 5. [Same as paragraph 3, form No. 735.] [Concluding part.] 1372 NEGOTIABLE INSTRUMENTS. [Tit. XII. FORM No. 762 — By subsequent endorsee of bill against first endorser. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , one C. D. made his bill of exchange in writing, of that date, requiring one G. H. to pay to the order of the defendant $ , days after sight thereof [or as the case may be]. 2. That the defendant endorsed said bill to one E. F., and the same was accepted by G. H. on the day of , 19 , at 3. That the same was by the endorsement of E. F. transferred to the plaintiff, and on the day of , 19 , at , was pre- sented to the said G. H. for payment, but was not paid, due notice of which was given to the defendant. 4. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 763 — By subsequent endorsee of bill against intermediate en- dorser. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , one C. D. made his bill of exchange, in writing, of that date, and thereby required one E. F. to pay to the order of G. H. $ , days after sight thereof [or as the case may be]. 2. The said bill was endorsed by the said G. H. to the defendant, and by the endorsement of the defendant [and others], the same was transferred to the plaintiff. 3. [Allegation of presentment, non-payment, and notice, as in pre- ceding form.] 4. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 764 — By subsequent endorsee of bill against last endorser. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , one C. D. made his bill of exchange, in writing, of that date, and thereby required one E. F. to pay to the order of G. H. $ , days after sight thereof [or as the case may be]. Ch. XCVII.] COMPLAINTS [OR PETITIONS].— FORMS. 1373 2. That the said bill was endorsed by said G. H. to the defendant, and the same was endorsed by the defendant to this plaintiff. 3. That on the day of , 19 , at , the same was duly presented to the said E. F. for payment, but was not paid, due notice of which was given to the defendant. 4. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 765 — By first endorsee of bill against all prior parties. [Title of court and cause.] The plaintiff complains of the defendants, and alleges : 1. That on the day of , 19 , at , the defendant C. D. made his bill of exchange, in writing, of that date, and thereby requested E. F. to pay to the order of the defendant G. H. $ , days after the date thereof. 2. That the said C. D. then and there [or thereafter] delivered the same to the said G. H., who thereupon endorsed it to the defendant L. M., who endorsed it to the plaintiff for value on the day of , 19 . 3. That on the day of , 19 , at , the defendant E. F. accepted said bill upon sight. 4. That the same was duly presented to the defendant E. F. for payment at maturity, but was not paid, of which due notice was given to the defendants C. D., G. H., and L. M. 5. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 766 — By subsequent endorsee against all prior parties. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , the defendant C. D. made his bill of exchange, in writing, of that date, and thereby required the defendant E. F. to pay to the order of the defendant G. H. $ . days after sight thereof. 2. That on the day of , 19 , the same was accepted by the said E. F., and endorsed by the said G. H. to the plaintiff. 3. That on the day of , 19 , the same was duly pre- sented to the said E. F. for payment, but was not paid, of which due notice was given to the other defendants, and to each of them. 1374 NEGOTIABLE INSTRUMENTS. [Tit. XII. 4. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 767— Action against a bank upon acceptance, followed by refusal to pay check. [Title of court and cause.] Plaintiff complains of defendant, and for cause of action alleges : 1. [Aver incorporation of defendant.] 2. That on the day of , 19 , one made his check, in writing, bearing date on that day, and directed it to the defend- ant, and delivered the same to this plaintiff for value, which check was in the words and figures following, to wit: [Insert copy.] 3. That thereafter, and on the day of , 19 , the de- fendant, in writing, accepted said check and promised to pay the same. 4. That thereafter, on the day of , 19 , plaintiff pre- sented said check to the defendant at its said place of business for payment; that said bank then refused, and ever since has refused, to pay the same, or any part thereof, and the same is wholly due, payable, and unpaid from defendant to plaintiff. Wherefore, plaintiff prays judgment against the defendant for the sum of $ , the amount of said check, and interest thereon from the day of , 19 , and for plaintiff's costs of suit. A. B., Attorney for plaintiff. [Verification.] FORM No. 768 — Action upon an accepted and assigned draft. (In Fisher v. Frank, 8 Cal. App. 472; 97 Pac. 95.) [Title of court and cause.] Now comes the plaintiff above named and complains of defendant, and for cause of action alleges : 1. That heretofore, to wit, on the 16th day of September, 1904, defendant, George Frank, doing business as George Frank & Co., for value, accepted at San Jose, Santa Clara County, state of Califor- nia, a draft in favor of W. C. Kennedy for $2,538.12, which said draft and the acceptance thereof and endorsements thereon are as follows, to wit: [Here follows copy of draft with endorsements of partial payments, acceptances, etc.] .at as soon as he was informed thereof he refused to marry the plaintiff. [Etc.] Form of complaint in an action for breach of promise of marriage: Lahey v. Knott, 8 Ore. 198, 199. A suit for breach of a marriage contract is ex contractu, and not ex delicto, although it partakes somewhat of the characteristics of the latter: Broyhill v. Nor- ton, 175 Mo. 190, 74 S. W. 1024; Sperry v. Cook, 138 Mo. App. 296, 120 S. W. 654, 656. CHAPTER CIV. Actions on Judgments. Page $ 363. Leave to sue upon a judgment 1439 Form No. 847. Notice of motion for leave to sue upon judg- ment 1439 Form No. 848. Affidavit accompanying application for leave to sue upon a judgment 1440 Form No. 849. Order granting leave to sue upon a judgment. . 1441 I 364. Complaints [or petitions] 1441 Form No. 850. On judgment wholly unpaid. (Common form.) 1441 Form No. 851. On judgment partially satisfied 1442 Form No. 852. On judgment for deficiency after foreclosure sale 1442 Form No. 853. On judgment assigned 1443 Form No. 854. On foreign judgment of court of general juris- diction 1444 Form No. 855. On foreign judgment of inferior tribunal 1444 S 365. Answers 1445 Form No. 856. Defense of payment 1445 Form No. 857. Defense based upon vacation of judgment 1445 Form No. 858. Defense that judgment was obtained by fraud. . 1445 Form No. 859. Defense of invalidity of foreign judgment 1446 Form No. 860. Defense of invalidity of judgment against non- resident 1446 § 366. Annotations 1447 §363. LEAVE TO SUE UPON A JUDGMENT. Under jurisdictions where leave to sue upon a judgment must first be granted by the court, the forms Nos. 847 to 849 may be used. FORM No. 847 — Notice of motion for leave to sue upon a judgment. [Title of court and cause, etc.] To C. D., attorney for defendant : Take notice, that a motion will be made at [a special] term of this 1440 ACTIONS UPON JUDGMENTS. [Tit. XII. court, to be held in and for the county of , at the county court- house therein, on the day of , 19 , at o'clock in the forenoon of said day, or as soon thereafter as counsel can be heard, upon the affidavit hereto annexed, for an order granting leave to the plaintiff to bring an action against the defendant upon the judgment mentioned and described in said affidavit [with costs of this motion], and for such other and further relief as may be proper. [Date.] A. B., Attorney for plaintiff. [Annex affidavit as in form No. 848.] FORM No. 848 — Affidavit accompanying application for leave to sue upon a judgment. [Title of court and cause, etc.] County of , ss. , of , being duly sworn, says: That on the day of , 19 , a judgment was rendered in the court of the state of , for the sum of $ , and $ damages, and $ costs, in favor of this deponent and against ; that the judgment-roll was thereupon filed in the office of the clerk of said court in the county of , on the day of , 19 , and said judgment was then and there duly docketed [or a transcript whereof was duly filed and docketed in the clerk's office, on the day of , 19 ] . That said judgment was rendered upon filing the report of , duly appointed in said action as referee, to hear and determine the same [or upon filing the decision of Hon. , a justice (or judge) of said court; or upon the verdict of a jury rendered in said action; or upon the default of the said defendant to appear, or answer, therein, upon personal service of the summons in said action upon him; or state other authority for entry of judgment, so as to show that the case is not excepted by statute], and is wholly unpaid [or is unpaid to the amuunt of $ , with interest (etc.)]. That at or after the time of the rendition of said judgment the defendant was the owner of certain real estate situate in the county of , and that the lien of said judgment upon said real estate is about to expire. [Or state other reasons why leave is desired to sue upon the judgment.] [Where prayer is that an order for service by publication be made, allege further:] Ch. CIV. J COMPLAINTS [OR PETITIONS].— FORMS. H4i That personal service of notice of motion to sue upon said judg- ment can not be made upon [defendant] with due diligence, for the following reasons: [State the same.] [Deponent's signature.] [Jurat.] FORM No. 849 — Order granting leave to sue upon a judgment. [Title of court and cause, etc.] On reading and filing the affidavit of , sworn to , 19 , and [name any other motion papers], with proof of due service Of notice of motion upon [etc.], as required by the order of this court, made on the day of , 19 , and on reading and filing [name any opposing papers], and on motion of , of counsel for the plaintiff, and after hearing [etc. ; or no one opposing] : It is hereby ordered, that leave be and the same is hereby granted to the plaintiff to bring an action against the defendant upon the judgment rendered in the above-entitled action in the court, in favor of said , against defendant, on the day of , 19 , for $ damages, and $ costs, which said judgment was entered and docketed in the office of the clerk of the court, county of , on said date [or, on the day of , 19 ]. [Date.] S. T., Judge. §364. COMPLAINTS [OR PETITIONS]. FORM No. 850 — On judgment wholly unpaid. (Common form.) [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That on the day of , 19 , at , in the court of the county of , in this state, [or, before L. M., a justice of the peace in and for the town of, etc.] a judgment was duly given and made by said court [or justice] in favor of this plaintiff and against the defendant for $ , in an action wherein this plaint- iff was plaintiff [or defendant] and said defendant was defendant [or plaintiff]. 2. That said judgment has not been paid, nor any part thereof, but that the whole thereof remains due and payable from the defendant to the plaintiff. [Concluding part.] H 42 ACTIONS UPON JUDGMENTS. [Tit. XIL FORM No. 851 — On judgment partially satisfied. [Title of court and cause.] The plaintiff complains of the defendant, and for cause of action alleges : 1. That on the day of , 19 , in the superior court in and for the county of , state of , a judgment was duly given and made by said court in favor of plaintiff herein, and against this defendant, in an action in said court pending, wherein said was plaintiff and said was defendant [together with certain fictitious defendants, as to whom said action was dismissed], for the sum of $ , with legal interest and costs, taxed at $ 2. That the defendant has not paid the said judgment, nor any part thereof, except, by garnishment of , a creditor of defendant, the sum of $ was collected on , 19 , and applied as so much credit on account of said judgment; that the balance of said judgment, together with interest thereon from said last-mentioned date, remains wholly due and unpaid from the defendant to the plaintiff, and unsatisfied of record. Wherefore, plaintiff prays judgment against defendant herein for said sum of $ , and costs $ , and interest thereon from , 19 , to , 19 , less said credit of $ , and interest thereon, or in all the sum of $ , and costs of this suit. A. B., Attorney for plaintiff. [Verification.] FORM No. 852 — On judgment for deficiency after foreclosure sale. (In Hibernia S. & L. Soc. v. Boyd, 155 Cal. 193; 100 Pac. 239. )* [Title of court and cause.] Plaintiff complains of the defendant, and for cause of action alleges : 1. [Allegation of incorporation of plaintiff.] 2. That on the 15th day of October, 1900, in the superior court of the city and county of San Francisco, state of California, a judgment i The case of the Hibernia S. & L. Soc. v. Boyd, supra, related to a prior action, in which all the papers and records, including the record of both original and defi- ciency judgments, were destroyed in the San Francisco conflagration of April 18-20, 1906. The plaintiff made secondary proof of the judgments only, introducing no evi- dence as to the other papers and records, resting in this upon the admissions of the answer, directly or impliedly. The court held that the complaint, as against merely a general demurrer was sufficient, and that the proof made, in view of the admis- sions of the answer, warranted the Judgment: Hibernia S. & L. Soc. v. Boyd, 155 Cal. 193, 100 Pac. 239. Ch. CIV.] COMPLAINTS [OR PETITIONS].— FORMS. 144ii and decree was duly given and made by said court in favor of this plaintiff, and against the defendant herein, in an action in said court last above named, pending and numbered 69,655 upon the records of said court, wherein this plaintiff was plaintiff and said defendant was defendant, for the sum of $61,184.10; and for the foreclosure of a certain mortgage upon the lands described in a complaint in said action, and for the sale of said lands to satisfy the said judgment for said sum of $61,184.10, and for the appointment of a referee to make sale of said lands, and out of the proceeds thereof, if sufficient, to satisfy said judgment for $61,184.10, and if the sum so obtained for said lands be insufficient to satisfy said sum, the said court order that the clerk of said court enter a judgment in said action, against this defendant, for such deficiency; and which said judgment and decree was duly entered and recorded by the clerk of said court, in judg- ment book No. 57, at page 228, on October 15, 1900. That thereafter, and in pursuance of said judgment and decree, the said referee only sold the said land, obtaining therefor the sum of $56,184.10; and that he thereafter returned to this court his report in said cause, which, among other things, showed the sale of said lands and the amount received therefor, and that the clerk of said court did thereafter and on the 15th day of November, 1900, and in pur- suance of said judgment and decree, and said report, enter and record a judgment against this defendant, in said action, for said deficiency, to wit, the sum of $5,000, and docketed the same on said date of November 15, 1900. 3. That no part of said sum of $5,000 has been paid, but that the •ame remains wholly due and unpaid. Wherefore, plaintiff prays for a judgment against the said defend- ant for the sum of $5,000, together with interest thereon from the said 15th day of November, 1900, at the rate of seven per cent per annum, and for the costs of suit. Edwin L. Forster, [Verification.] Attorney for plaintiff. FORM No. 853 — On judgment assigned. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , in the court, in and for the county of , in this state [or before L. M., 1444 ACTIONS UPON JUDGMENTS. ITit. Xli. a justice of the peace in and for the town of ] , a judgment was duly given and made by said court [or justice] in favor of one N. 0. and against the defendant herein, in an action wherein the said N. 0. was plaintiff and the defendant herein was defendant [or otherwise, as the case was], for the sum of $ 2. That on the day of , 19 , at , the said N. 0. duly assigned said judgment to the plaintiff [of which the defendant had due notice]. 3. [Same as paragraph 2, form No. 850.] [Concluding part.] FORM No. 854 — On foreign judgment of court of general jurisdiction. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That at the times hereinafter mentioned, the court, in and for the county of , in the state of , was a court of general jurisdiction, duly created and organized under the laws of that state. 2. That on the day of , 19 , the plaintiff commenced an action in said court against the defendant by the issuance of sum- mons [or other process] which summons was duly and personally served upon said defendant [or in which action the defendant ap- peared in person, or by attorney]. 3. That thereupon such proceedings were had therein in said court, that on the day of , 19 , a judgment for the sum of $ was duly given and made by said court, in favor of the plaint- iff and against the defendant. 4. [Same as paragraph 2, form No. 850.] [Concluding part.] FORM No. 855 — On foreign judgment of inferior tribunal. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That at the times hereinafter mentioned, L. M. was a justice of the peace, in and for the township 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 , 19 , to hold court, and having jurisdiction as such over actions of [set out jurisdiction sufficiently to include the cause of action]. Ch. CIV.] ANSWERS.— FORMS. 1445 2. That on the day of , 19 , at aforesaid, the plaintiff commenced an action against the defendant before the said justice, by filing his complaint, and causing summons to be issued by said justice on that day, for the recovery of [designate cause of action], which summons was duly and personally served on the defendant. 3. That on the day of , 19 , in said action, the plaint- iff recovered judgment, which was duly given and made by said jus- tice against the defendant, for the sum of $ , to wit, $ for said debt, with $ for interest from the said date, and $ costs. 4. [Same as paragraph 2, form No. 850.] [Concluding part.] §365. ANSWERS. FORM No. 856 — Defense of payment. [Title of court and cause.] The defendant alleges that on the day of , 19 , and before the commencement of this action, he paid to the plaintiff $ , in full settlement and discharge of said judgment. [Concluding part.] FORM No. 857 — Defense based upon vacation of judgment. [Title of court and cause.] [After introductory part :] That on or about the day of , 19 , upon motion duly made, the said court duly made and entered an order setting aside and vacating the said judgment described in the complaint, and that said judgment is void and of no effect. [Concluding part.] FORM No. 858 — Defense that judgment was obtained by fraud. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition] : 1. That the judgment therein alleged was obtained by the plaint- iff against the defendant by fraud and misrepresentation, in this: [Here state specifically the facts constituting such fraud; as, for example:] that the plaintiff, after the action in the complaint [peti- tion] named was begun, came to this defendant, and with the pur- Jury's PI.— 92. 1446 ACTIONS UPON JUDGMENTS. [Tit. XII. pose of preventing the defendant from defending said action, falsely and fraudulently told him that he, the said plaintiff, intended to and would dismiss said action, and requested that defendant should not defend the same, and represented that the defendant need not be at any cost or expense therein. 2. That this defendant, in consequence of and relying upon said representations, did not appear in, or defend, said action at the term of court next thereafter held, and the plaintiff fraudulently, and without the defendant's knowledge, appeared and prosecuted said action in the defendant's absence, and took said judgment by the default of the defendant, so as aforesaid fraudulently procured. Wherefore, the defendant prays that said judgment be adjudged void, and the plaintiff be forever restrained from enforcing it, and for defendant's costs of this action. C. D., Attorney for defendant. FORM No. 859 — Defense of invalidity of foreign judgment. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition] : 1. Defendant alleges that no process was served upon him in the action mentioned in the complaint [or petition] ; and that he never appeared in person or by attorney in said action. [Concluding part.] FORM No. 860 — Defense of invalidity of judgment against non-resident. [Title of court and cause.] The defendant answering the plaintiff's complaint [or petition], alleges : 1. That the action in which the supposed judgment against him was alleged to have been recovered arose upon an alleged contract. 2. That when said action was commenced, this defendant was a non-resident of the state of , and a resident of 3. That he never was personally served in the state of , or elsewhere, with summons in said action, and never appeared therein. 4. That no order for publication of the summons in that action was ever made. [Or state other facts showing failure to obtain jurisdiction.] [Concluding part.] Form of motion to set aside the judgment in an action for an accounting: Childs v. Kansas City etc. R. Co., 117 Mo. 414. 416. 23 S. W. 373. Ch. CIV.] ANNOTATIONS. 1447 Form of petition in an action to set aside a judgment of foreclosure, and to restrain proceedings thereunder: Lumpkin v. Williams, 1 Tex. Civ. App. 214, 219, 21 S. W. 967. Form of petition in an action to set aside two judgments: Lantis v. Davidson, 60 Kan. 389, 392, 56 Pac. 745. Form of petition in an action to vacate a judgment: Schnitzler v. Fourth Nat. Bank, 1 Kan. App. 674, 675, 42 Pac. 496. §366. ANNOTATIONS. Remedy against an illegal judgment. — Where the statute affords a full, complete, and adequate remedy against an illegal judgment, by authorizing the aggrieved party to proceed by motion to vacate and set aside, and permitting an appeal from an order entered upon such motion, any one who has attacked a judgment by motion to vacate, and has failed to prosecute an appeal from the denial of his motion, can not subsequently maintain an action to cancel the judgment, since the question of the validity of the judgment is res adjudicata: Chezum v. Claypool, 22 Wash. 498, 61 Pac. 157, 79 Am. St. Rep. 955; McCord v. McCord, 24 Wash. 529, 64 Pac. 748; Bunch v. Pierce County, 53 Wash. 298, 101 Pac. 874, 875. Decree in proceeding to vacate former judgment. — A proceeding under the Arkan- sas statutes (Kirby's Dig. §§ 4431-4437) to have a judgment set aside which was rendered at a former term is equivalent to an independent action instituted for that purpose, and the order of the court, after vacating the judgment or refusing to do so, is final, in the sense that it determines the rights of the parties under the judg- ment, even though after vacating the judgment it leaves the original still pending for further proceedings: Ayers v. Anderson-Tully Co., 89 Ark. 160, 116 S. W. 199, 200, citing the following authorities from states having similar statutes: Hunting- ton v. Finch, 3 Ohio St. 445; Braden v. Hoffman, 46 Ohio St. 639, 22 N. E. 930; Weber v. Tschetter, 1 S. Dak. 205, 46 N. W. 201; Joyce v. New York, 20 How. Pr. 439; Hen- derson v. Gibson, 19 Md. 234; Curtiss v. Bell, 131 Mo. App. 245, 111 S. W. 131. A judgment procured by fraud may be set aside upon motion: Hamilton v. Mc- Lean, 139 Mo. 678, 41 S. W. 224; Mayberry v. McClurg, 51 Mo. 256; Cross v. Gould, 131 Mo. App. 585, 110 S. W. 672. A scire facias proceeding to revive the lien of a judgment is not the institution of a new suit. No petition is required in such case, nor is the service of 'he usual process of summons or a copy of the petition required: Bick v. Vaughn, 140 Mo. App. 595, 120 Mo. 618, 620; Sutton v. Cole, 155 Mo. 206, 55 S. W. 1052; Bick v. Tanzey, 181 Mo. 515, 80 S. W. 902; State v. Hoeffner, 124 Mo. 488, 28 S. W. 1; Sutton v. Cole, 73 Mo. App. 518. An original petition can in no respect be treated as a scire facias proceeding, evea though there are references therein to a revival and renewal of the lien of a former judgment; for in a scire facias proceeding in which the lien of a judgment is r night to be revived and renewed, no petition whatever is required, whereas a petition must be filed when the suit is on a judgment: Bick v. Vaughn, 140 Mo. App. 595,. 120 S. W. 618, 620, construing section 3715 Mo. Rev. Stats. 1899,— Ann. Stats. 1906 r , p. 2083. TITLE XIII. Actions for Negligence. Page Chapter CV. Employers' Liability Cases, and Actions against Employees 1448 CVI. Negligence of Various Persons Owing a Con- tractual Duty 1461 CVII. Negligence of Carriers of Property or Messages 1471 CVIII. Negligence of Carriers. — Actions for Injuries to Passengers not Resulting in Death 1480 CIX. Death by Wrongful Act 1494 CX. Negligence of Carriers. — Actions by Persons other than Passengers 1506 CXI. Miscellaneous Cases of Negligence 1529 CHAPTER CV. Employers' Liability Cases, and Actions against Employees. Page § 367. Complaints [or petitions] 1449 Form No. 861. By employee against railroad company, for damages resulting from injuries sustained in operation of defective machinery. 1449 Form No. 862. By servant, to recover damages for personal injuries sustained from negligence of em- ployer in requiring performance of labor with which the servant was not familiar 1450 Form No. 863. Under employers' liability act 1451 Form No. 864. By employer, for servant's negligence 1454 Form No. 865. By employer, for repayment of money advanced for services 1454 S 368. Answers 1455 Form No. 866. Defense based upon failure of plaintiff to give notice prescribed by statute as condition precedent to action 1455 Form No. 867. Denial, and defense of contributory negligence and assumed risk 1456 Form No. 868. Defenses— (1) contributory negligence of plaint- iff, (2) negligence of fellow-servant of plaintiff 1457 8 369. Annotations 1458 (1448) Cb. CV.] COMPLAINTS [OR PETITIONS].— FORMS. 1449 §367. COMPLAINTS [OR PETITIONS]. FORM No. 861 — By employee against railroad company, for damages result- ing from injuries sustained in operation of defective machinery. [Title of court and cause.] Plaintiff complains of defendant, and for cause of action alleges: 1. That the defendant is, and continuously during all the times hereinafter mentioned has been, a corporation organized under the laws of the state of ; that it is, and continuously during all said times has been, the owner and in the possession of a certain railroad known as Railroad, and of the tracks, cars, loco- motives, rolling-stock, and other equipment and appurtenances thereto belonging, and is, and was during all said times, using the same for the transportation of goods and passengers for hire. 2. That the plaintiff, on the day of , 19 , was in the employ of the defendant, as engineer upon a locomotive steam- engine, used and operated by defendant on its said tracks. 3. That said steam locomotive was defective and insecure, and the boiler thereof was defective, unsafe, and dangerous, but of such defects plaintiff had no knowledge, nor means of knowledge, infor- mation, or notice thereof; that by reason of said defects, and by reason of the failure, through the carelessness and neglect of the defendant to furnish a safe and secure steam locomotive to be used by the plaintiff in his said employment, on the said date, and while the plaintiff was engaged in the performance of his duties as such engineer under said employment, the boiler of said steam loco- motive exploded, whereupon large quantities of steam and hot water escaped therefrom, and, without any fault or negligence on his part, plaintiff was thereby severely scalded and injured about the face and hands and body. 4. That by reason of said injuries sustained as aforesaid plaintiff became, and for a long time thereafter remained, ill; that said injuries sustained as aforesaid are of a permanent nature, and that ever since receiving the same the plaintiff has been, and will here- after be, prevented thereby from pursuing his regular employment or business; that by reason of said injuries plaintiff was obliged to engage the services of a physician, and was further obliged to expend in hospital service and for medicines the sum of $ ; and that, 1450 EMPLOYERS' LIABILITY CASES, ETC. [Tit. XIII. in all, the plaintiff has been damaged by the acts of the defendant aforesaid in the sum of $ Wherefore, plaintiff prays judgment against defendant for $ , and plaintiff's costs of suit. A. B., Attorney for plaintiff. [Verification.] FORM No. 862 — By servant, to recover damages for personal injuries sus- tained from negligence of employer in requiring perform- ance of labor with which the servant was not familiar. (In Crawford v. Bonners Ferry L. Co., 12 Idaho 678; 87 Pac. 998; 10 Am. & Eng. Ann. Cas. 1.) [Title of court and cause.] Plaintiff complains of the defendant, and for cause of action al- leges : 1-4. [After averments that the defendant is a corporation organ- ized and existing under the laws of the state of Wisconsin, and doing a sawmill business in Kootenai County, state of Idaho, and that about one year prior to August 24, 1904, plaintiff entered the employ of defendant, as teamster, to haul and skid logs and timber in the forests owned and used by defendant in connection with its sawmill, and after describing apparatus, machinery, and dump-carts used for the purpose of disposing of refuse, the complaint proceeds:] 5. That on the day of , 1904, and while plaintiff was in the performance of his said duties in hauling and skidding logs and timbers in the forests of defendant, pursuant to said employment, the defendant directed and required plaintiff to suspend said work, and to haul [etc., here describing the work he was required to per- form] ; that thereupon plaintiff objected to performing said last- mentioned service, and informed defendant that he did not under- stand said work, or the manner of using dump-carts, whereupon defendant further directed and required plaintiff to perform said last-mentioned labor, and insisted that he do so, and plaintiff pro- ceeded to haul laths as directed by defendant as aforesaid. 6. That it was then and there, and at all times, the duty of the defendant to furnish, keep, and maintain a safe, sufficient, and suit- able place for plaintiff to work in, and to provide and maintain sufficient, suitable, and safe appliances with which to perform said labor, and to provide and maintain sufficient, suitable, and safe roads over which to haul said laths, but that, disregarding its duty in the Ch. CV.] COMPLAINTS [OR PETITIONS].— FORMS. 1451 premises and in this respect, it had knowingly, carelessly, and negli- gently caused said car and box to be so constructed that they were too low to safely allow said dump-cart to pass under ; * * * and defendant at all of the times herein mentioned, knowingly, carelessly, and negligently kept and maintained them in such unsafe and dan- gerous condition, and knew of their dangerous and unsafe condition, and knew that it was unsafe and dangerous for plaintiff to haul said laths with said dump-cart, of all of which plaintiff had no knowledge ; * * * that said facts could not be known or determined by plaintiff from any inspection which plaintiff was permitted to make, or was able to make, before or at the time of performing said work in the performance of which he was injured; * * * that the element of danger resulting, or that might result, from such condi- tions as aforesaid, was a latent and not an obvious danger. 7. That on the day last aforesaid, and while plaintiff was hauling said laths as directed and required by defendant as aforesaid, with- out any assistance, * * * and while he was exercising due care and caution, without any fault of plaintiff, the hind end of said dump- cart struck against the timbers and ceiling of said box over said driveway thereunder, and caused the fore part of said dump-cart to be suddenly and with great force and violence raised and thrown up to and against said timbers, by reason of which plaintiff was caught and held between and against said dump-cart and timbers, whereby [here follows statement of injuries received and damages]. Wherefore, plaintiff demands judgment against the defendant in the sum of $2,000 damages as aforesaid, and costs of suit, and for other and further relief. R. E. McFarland, [Verification.] Attorney for plaintiff. FORM No. 863 — Under employers' liability act. (In Mitchell v. Colorado M. & E. Co., 12 Colo. App. 277 ; 55 Pac. 736.) x [Title of court and cause.] [After introductory part:] 1. That the defendant is a corporation duly organized under the laws of the state of Colorado, and owns and operates what are known as the New Lindell Mills, situated in the city of Fort Collins, county l The complaint in form No. 863, under the employers' liability act (Colo. Laws 1893, p. 129), was held to state a complete cause of action and right of recovery by the plaintiff', under the statute of 1877, which is not controlled or affected by the act of 1893 aforesaid. The action is based upon the plaintiff's interest in the life 1452 EMPLOYERS' LIABILITY CASES, ETC. [Tit. XIII. of Larimer, and state of Colorado, with its principal office situated in the city of Denver, and state of Colorado. 2. That at all the times hereinafter mentioned the defendant was engaged in rebuilding said mills at Fort Collins, the said mills having been theretofore destroyed by fire ; that at said time, and for a long time prior thereto, one Benjamen F. Hottel was the resident agent and manager of said mills for and on behalf of defendant company, vested with general power in th^ management of said mills, with the right to employ and discharge men, and direct and control their actions in and about the working of said mills, as well as the rebuild- ing of the same; that said latter work, and all work herein men- tioned, was under the immediate supervision, direction, and control of said Hottel, as the resident agent, manager, and representative of defendant company. 3. That on the 7th day of August, 1896, one William M. Mitchell, who was then the unmarried son of plaintiff, was employed by de- fendant company, through its manager aforesaid, to assist in raising a smokestack at said mills. 4. That the said William M. Mitchell was at that time a few months over the age of twenty-two years, and had no knowledge or previous experience with the handling or raising of smokestacks, and was uninformed and unacquainted with the methods employed and machinery used in conducting such operations, and relied upon the knowledge, judgment, skill, and experience of said manager Hottel, which he believed said Hottel possessed. 5. That under the direction of said manager Hottel, so acting for and representing defendant company, a derrick was provided for lifting said smokestack into position, which derrick had not been constructed for that purpose, and could not lift any greater weight than 2,500 pounds, of which facts said Mitchell had no notice or knowledge. 6. That plaintiff is informed and believes, and so avers the fact to be, that the said smokestack weighed about 4,500 pounds; that on said last-mentioned date, under the direction of said manager as of the deceased, her direct dependence upon him, as his mother, for maintenance and support, and' does not seek to recover damages sustained by the deceased employee. Under the act of 1877, no notice was required to be given the employer before such suit could be maintained. The court, therefore, held that It was error to sustain a demurrer to this complaint on the ground of a failure to allege such notice: Mitchell v. Colorado M. & E. Co., 12 Colo. App. 278, 55 Pac. 736. (The form as given herein eliminates several repetitions contained in the original complaint.) Ch. CV.] COMPLAINTS [OR PETITIONS].— FORMS. 1453 aforesaid, the said smokestack was connected with the lifting appa- ratus of said derrick, the block and tackle being then unskilfully, carelessly, and negligently caused to be attached to an eye-bolt in said derrick, so that the whole of the weight of said stack was placed upon a small bolt; that the said manager then and there caused the windlass to which the rope was attached for lifting the said stack to be negligently and carelessly placed directly under the stack between the engine-house and elevator-building, so that while said stack was being hoisted it was immediately over the heads of those employed upon the windlass, and that the said Mitchell, having no notice or knowledge that said derrick was being used in an unsafe manner, or that the said manager had not exercised reasonable pru- dence, skill, and judgment in providing and placing said machinery, continued to work at said lifting apparatus ; that while so engaged at the windlass, turning the same, and without any fault or neglect on his part, the eye-bolt holding said apparatus to the stack broke, and the said stack fell, striking said Mitchell and causing his imme- diate death. 7. That the death of the said William M. Mitchell was caused by the negligence of the defendant company, and of its manager, as its principal representative as aforesaid, in providing unsafe and defect- ive machinery aforesaid, and through the grossly negligent manner and method in which the same was manipulated and used as aforesaid. 8. That the said William M. Mitchell was in sound bodily health at the time of his death, and at the time thereof, and for a long time prior thereto, supported plaintiff from his earnings, who, being ad- vanced in years and in poor bodily health, was dependent upon her said son for maintenance and support, and which said earnings at the time of his death averaged $600 per annum. 9. That the bonds of matrimony existing between plaintiff and her husband, Michael Mitchell, were absolutely dissolved, by decree of divorce duly given, made, and entered of record in the county court of Jefferson County, state of Colorado, on the 25th day of July, 1882; and in and by the terms of said decree, plaintiff was given the custody of the minor children, William Mitchell and Kate Mitchell, and charged with their support and maintenance, without any allowance from said Michael Mitchell. 10. That by reason of the default and negligent conduct of defend- ant company, and of its manager, as principal and representative, in 1454 EMPLOYERS' LIABILITY CASES, ETC. [Tit. XIII. causing the death of said William M. Mitchell, the plaintiff has been damaged in the sum of $5,000. Wherefore, plaintiff prays judgment against the defendant com- pany for the sum of $5,000, and for costs of suit. Frank J. Annis, Garbutt & Garbutt, Attorneys for jlaintiff. FORM No. 864 — By employer, for servant's negligence. [Title of court and cause.] The plaintiff complains of the defendant, and for cause of action alleges : 1. That on and prior to the time hereinafter mentioned the defend- ant was, at his request, for reward to him, employed by the plaintiff to [here state work which the defendant was to perform], and as his servant. 2. That on the day of , 19 , the defendant [here state as to work] in so careless and improper a manner that plaintiff was damaged in the following particulars, to wit: [Here specify], and thereby the plaintiff lost [here state], and incurred divers expenses, to wit, $ , in [here state], to the damage of the plaintiff in the sum of $ [Concluding part.] FORM No. 865 — By employer, for repayment of money advanced for seivlces. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , the defendant agreed to render his services to the plaintiff as , for the term of , in consideration of $ , to be paid therefor by the plaintiff. 2. That on the day of , 19 , at , the plaintiff advanced to the defendant, at his request, on account of services to be thereafter rendered, in pursuance of said agreement, the sum of $ 3. That the defendant has wholly neglected and refused to render such services, although demanded by the plaintiff so to do. Ch. CV.] ANSWERS.— FORMS. 1455 4. That no part of said sum so advanced has been repaid, and the whole thereof remains due and payable from the defendant to the plaintiff. [Concluding part.] §368.— ANSWERS. FORM No. 866 — Defense based upon failure of plaintiff to give notice pre- scribed by statute as condition precedent to action. (In Mathieson v. St. Louis etc. R. Co., 219 Mo. 542; 118 S. W. 9.) [Title of court and cause.] [After the defendant set out a general denial and plea of contrib- utory negligence, and a plea of assumption of risk, the defense based upon failure to give the statutory notice was alleged as follows:] 4. For a fourth and further answer and defense to said amended petition, defendant avers that plaintiff has stated in said petition thai he was working for defendant in and about its yards and connections in Wyandotte County, Kansas, and that at the time he was injured he was working in said Wyandotte County, Kansas, and the accident of which plaintiff complains in his petition happened in said county, state of Kansas; and defendant further avers that the law of the state of Kansas set up in said amended petition was amended on March 4, 1903, by the legislature of the state of Kansas, and, as amended, and as in force at the time of said accident, is as follows : [Here follows a copy of the statute as amended, for the wording of which see paragraph 1, annotations to this chapter.] Defendant further avers that plaintiff has failed to comply with said law of the state of Kansas, in that he failed to give to defendant within ninety days after the occurrence of said accident any notice of the injury sustained by him, or any notice stating the time and place thereof, or the time or place thereof, and that by reason of plaintiff's said failure to give said or any notice as provided by said statute, plaintiff can not recover herein. W. F. Evans, I. P. Dana, W. J. Orr, [Concluding part.] Attorneys for plaintiff. 1456 EMPLOYERS' LIABILITY CASES, ETC. [Tit. XIII. FORM No. 867 — Denial, and defense of contr'jrytory negligence and assumed risk. [Title of court and cause.] Now comes the defendant in the above-entitled action and answers the complaint of plaintiff on file herein as follows: 1. Defendant denies each and every allegation in said complaint contained. [If the complaint be verified, or if required by statute, make denials specific] [Defense of contributory negligence and assumed risk.] For a further and separate defense, defendant alleges: 1. That plaintiff's duties in working in or upon [here describe the work in which defendant was engaged under the direction of plaint- iff] did not require him to go to the place or to come in contact with the machinery [or apparatus, etc., causing the injury], and therefore the injury alleged to have been suffered by plaintiff in his complaint herein was consequent upon, and due to plaintiff's own carelessness and negligence, and not to that of the defendant. 2. That the said machinery [or other apparatus, describing it] was in plain view of the plaintiff when he entered defendant's serv- ice, and so remained during all the time of his employment, and, with full notice and knowledge of its construction, condition, and opera- tion, defendant voluntarily entered upon the work which he was employed to do, and continued therein until the time of his accident without objection or complaint, and thereby waived the duty of defendant to otherwise safeguard said machinery [or other appara- tus, etc.], and defendant assumed all risk incident thereto. Wherefore, defendant prays that plaintiff take nothing by his- action herein, and that defendant be given judgment for his costs. C. D., Attorney for defendant. [Verification.] For annotations as to the defense of contributory negligence generally, see ch, CXI, paragraphs 20 to 30. €h. CV.] ANSWERS.— FORMS. 1457 FORM No. 868 — Defenses — (1) contributory negligence of plaintiff, and (2) negligence of fellow-servant of plaintiff. (Cragg v. Los Angeles Trust Co., 154 Cal. 663; 98 Pac. 1063.) [Title of court and cause.] Comes now the defendant, and for answer to plaintiff's complaint: 1-3. [After specific denials of the averments of the complaint, the following defenses are set out:J [Defense of contributory negligence.] 4. And for a second and further defense to plaintiff's alleged cause of action, defendant alleges that the alleged injury and damage to plaintiff was proximately caused by his own negligence and want of care. [Defense of negligence of fellow-servant of plaintiff.] 5. And for a third and further defense to plaintiff's alleged cause of action, defendant alleges that the accident referred to in plaintiff's complaint, and the injury and damage to the plaintiff alleged to have resulted therefrom, were caused by the negligence and want of care of a fellow-servant of plaintiff, who at the time of the happening of said accident was engaged with the plaintiff in the same general business of this defendant, and without any fault or negligence on the part of this defendant. Wherefore, the defendant prays that plaintiff take nothing by this action, and that defendant recover its costs and disbursements. Hunsaker & Britt, [Verification.] Attorneys for defendant. Form of complaint in an action for damages for injuries caused by the negligence of employer: Trihay v. Brooklyn Lead Min. Co., 4 Utah 468, 482, 11 Pac. 612, 618, 15 Morr. Min. Rep. 535. Form of complaint in an action by a day laborer, against his employer, a railroad company, for damages for breach of contract, and negligence, in that defendant failed to supply him with good and suitable board and lodging: Clifford v. Denver S. P. & P. R. Co., 9 Colo. 333, 12 Pac. 219. Form of petition in an action by a brakeman against a railroad company for personal injuries received in stepping from a car for the purpose of turning a switch: Kansas City etc. R. Co. v. Kier, 41 Kan. 661, 21 Pac. 770, 771, 13 Am. St. Rep. 311. Form of petition in an action for damages for a personal injury caused by the alleged negligence of plaintiff's co-employees: Union Pacific R. Co. v. Harris 33 Kan. 416, 6 Pac. 571. M53 EMPLOYERS' LIABILITY CASES, ETC. [Tit. XIII. Form of petition in an action for damages for personal injuries received by plaintiff on account of the alleged negligence of defendant in providing for her use. as an employee, defective and dangerous machinery: Hoepper v. Southern Hotel Co., 142 Mo. 378, 44 S. W. 257. Form of petition in an action to recover damages for personal injuries alleged to have been received by the plaintiff while in the employ of the defendant: Atchison etc. R. Co. v. Ledbetter, 34 Kan. 326, 8 Pac. 411. Form of petition in an action by a brakeman against a railway company to recover damages for injuries received while in the performance of his duties, through the negligence of the company's inspector: Missouri Pacific R. Co. v. Dwyer, 36 Kan. 58, 59, 12 Pac. 352, 353. Form of petition in an action for personal injuries caused by the alleged negli- gence of the defendant in providing an unsafe hand car: Solomon R. Co. v. Jones, 34 Kan. 443, 455, 8 Pac. 730, 732. Form of petition in an action for damages for personal injuries resulting from the negligence of the defendant in not furnishing safe tools: Atchison etc. R. Co. v. Sadler, 38 Kan. 128, 129, 16 Pac. 46, 5 Am. St. Rep. 729. Form of petition in an action for damages for personal injuries received by plaintiff while engaged in the capacity of a workman and employee of the defendant in the sinking of a shaft: Morbach v. Home Mining Co., 53 Kan. 731, 732, 37 Pac. 122, 123. Form of petition in an action for damages for the alleged wilful negligence and misconduct of the defendants towards the plaintiff's minor child while she was in the service of the defendants: Larson v. Berquist, 34 Kan. 334, 335, 8 Pac. 407, 55 Am. Rep. 249. For the substance of averments charging the defendant with negligence in the operation of an elevator, the plaintiff having suffered personal injuries while in the employ of the defendants, held sufficient to admit of proof of negligence of the defendant, although the petition might have been more skilfully drawn, see Modlin v. Jones & Co., 84 Neb. 551, 121 N. W. 984, 9S7. For a form of complaint in an action for personal injuries caused by the alleged negligent operation of a railroad in a logging-camp, held sufficient as against a general demurrer, notwithstanding its deficiency in logical order and technical language, and notwithstanding its somewhat vague statements, see Vukelis v. Virginia L. Co., 107 Minn. 6S, 119 N. W. 509. Form of instructions to jury in an action for damages for injuries caused by the explosion of an engine: Mulligan v. Montana Union R. Co., 19 Mont. 135, 47 Pac. 795, 797. §369. ANNOTATIONS. — Employers' liability cases, and actions against employees. 1. Notice as condition precedent. — Kansas statute. 2. Complaint in action for negligence held sufficient. 3. Insufficient showing of negligence. 4, 5. Defense of assumption of risk. — Distinguished from contributory negli- gence. 6. Risk, when deemed assumed. 7. Burden of proof as to assumed risk. 8. Instruction based upon assumed risk. 9, 10. Negligence of fellow-servant. 11. Liability of servant to master for acts of servant's minor children. 1. Notice as condition precedent. — precedent to the commencement of an, Kansas statute. — The giving of a notice, action for negligence, etc., is one of the where reauired by statute as a condition essential elements of the plaintiff's case. Ch. CV.] ANNOTATIONS. 1459 Without that allegation the petition Is fatally defective, and does not state facts sufficient to constitute a cause of action: Mathieson v. St. Louis etc. R. Co., 219 Mo. 542, 118 S. W. 9, 10, citing the Kan- sas statute, the same being that upon which this action was based, as amended on March 4, 1903, and which reads as follows: "Every railroad company or- ganized or doing business in this state shall be liable for all damages done to any employee of said company in conse- quence of any negligence of its agents, or by any mismanagement of its engi- neers, or other employees, to any person sustaining such damage; provided, that notice in writing of the injury so sus- tained, stating the time and place thereof, shall have been by or on behalf of the person injured to such railroad company within ninety days after the occurrence of the accident." 2. A complaint In an action for dam- ages for personal injury received by plaintiff while in defendant's employ as a teamster held sufficient as against a general demurrer thereto, there being no criticism in these particulars, although the same was uncertain and indefinite in some of its allegations, and held, also, a judgment for defendant, on sustaining the demurrer, was erroneous. The fol- lowing is, in brief, a statement of the facts alleged: The defendant corpora- tion owns and conducts a foundry and machine-shop in the city of Butte. The plaintiff was at the time he was injured in its employ, as a teamster, and in this capacity his office was to haul from place to place about the premises heavy machinery and castings whenever in the course of defendant's operations it be- came necessary. On August 1, 1904, he was directed to move from the foundry to the machine-shop an iron casting weighing about 1,500 pounds. Having loaded it upon his wagon and hauled it to the place designated in the machine- shop, he was engaged in unloading and lowering it to the floor. To enable him to do this, he was furnished with an ap- pliance consisting of a crane, blocks, and a chain. The process of unloading was intended to be accomplished by first lift- ing the casting from the wagon by means of the appliance mentioned, and holding It suspended from the chain until the wagon was removed, and then lowering the casting to the floor. The unloading had been accomplished up to the point when it became necessary to lower the casting. It was then suspended about five feet from the floor. To effect this it was necessary that the appliance be loosened, presumably so that the chain would run through the blocks, and thus allow the casting to descend gradually, under plaintiff's control. While the plaintiff was in the act of adjusting the appliance in order to lower the casting, it became necessary for him to take hold of it for that purpose. The chain, blocks, and the casting fell upon his right leg, so crushing and mangling it that ampu- tation became necessary. [The negli- gence with which defendant is charged is alleged as follows:] That said chain so around said casting, and which was so furnished to this plaintiff for such use was wholly insufficient and unsafe in this, to wit, that the same was not of sufficient size to hold or bear the weight of said casting, and by reason thereof it was not of such strength as was re- quired for such casting, and was too weak to hold the same, all of which was well known to said defendant, and of which this plaintiff was ignorant. Plaint- iff further alleges that defendant was guilty of gross negligence in not furnish- ing plaintiff a sound, safe, and substan- tial chain with which to handle said casting, and that but for the gross care- lessness and negligence of defendant in this regard plaintiff would not have re- ceived said injury. Plaintiff further al- leges that said appliance, consisting of crane, blocks, and chain, were the prop- erty of defendant, and were furnished for use by defendant, and that plaintiff used the same under the direction and orders of defendant. [It was then al- leged that, by reason of the injury thus suffered, the plaintiff was permanently disabled, that he suffered great mental and physical pain and anguish, and that he was put to expense for medical treat- ment, etc.]: Schroder v. Montana Iron Works, 38 Mont. 474, 100 Pac. 619, 620. 3. Insufficient showing of negligence. — A complaint in an action brought to re- cover personal damages suffered by the plaintiff while In the employment of the defendants, and alleged to have been caused by their negligence in numerous particulars specified, which contains no 1460 EMPLOYERS' LIABILITY CASES, ETC. [Tit. XIII. further specification of the negligence than that the same was committed "by the defendants and their servants," is wholly insufficient, for the reason that from this allegation it does not appear that the plaintiff himself was not the servant whose negligence caused the ac- cident: Schreiner v. Grant Brothers, 3 Cal. App. 661, 662, 86 Pac. 912, (to re- cover personal damages for negligence). 4. The defense of assumption of risk is affirmative in character, and must be pleaded specifically before it can be availed of by the defendant: Coulter v. Union Laundry Co., 34 Mont. 590, 87 Pac. 973; Nord v. Boston etc. Co., 33 Mont. 464, 84 Pac. 1116, 89 Pac. 647; Longpre v. Big Blackfoot M. Co., 38 Mont. 99, 99 Pac. 131, 132. 5. Assumption of risk and contributory negligence are separate defenses, and while it frequently happens that there is no practical importance in distinguishing the two where the same state of facts would make out a defense, whether called by the one name or the other, yet they rest upon different bases, and each should be approached from a different viewpoint. Of course, where the danger is obvious the two defenses are tested by the same standard in that particular, and the differences are more theo- retical than practical: Johnson v. Mam- moth Vein Coal Co., 88 Ark. 243, 114 S. W. 722, 724, 123 S. "W. 1180; Choctaw etc. R. Co. v. Jones, 77 Ark. 367, 92 S. W. 244, 4 L. R. A. (N. S.) 837, 7 Am. & Eng. Ann. Cas. 430; St. Louis etc. R. Co. v. Mangan, 86 Ark. 507, 112 S. W. 168, 13 Ark. Law Rep. 545; Narramore v. Cleve- land etc. R. Co., 37 C. C. A. 499, 96 Fed. 298, 48 L. R. A. 68. 6. Risk, when deemed assumed. — The risk where obvious is deemed to have been assumed by the plaintiff: Jones v. Pioneer Cooperage Co., 134 Mo. App. 324, 114 S. W. 94, 96; Knorpp v. Wagner, 195 Mo. 637, 93 S. W. 961; Beasley v. Linahan Transfer Co., 148 Mo. 413, 50 S. W. 87; Bradley v. Railway, 138 Mo. 293, 39 S. W. 763; Lee v. Railroad, 112 Mo. App. 372, 87 S. W. 12. 7. Burden of proof as to assumed risk. —Where the defendant pleads assump- lon of risk by the plaintiff because of his alleged continuance in a place of danger while In the defendant's employ, and pleads plaintiff's knowledge of the risk, the burden is upon the defendant to es- tablish by a preponderance of the evi- dence that the plaintiff knew and appre- ciated the peril to which he was exposed: Cinkovitch v. Thistle Coal Co., 143 Iowa, 595, 121 N. W. 1036, 1038, citing upon the point that knowledge and appreciation of the risk are always essential elements in the servant's assumption of risks aris- ing from his alleged negligence: Long v. Johnson, 134 Iowa 336, 111 N. W. 984; Cushman v. Carbondale Co., 116 Iowa 618, 88 N. W. 817; Vohs v. Shorthill, 124 Iowa 471, 100 N. W. 495; Calloway v. Agar, 129 Iowa 1, 104 N. W. 721; Mace v. Boedker, 127 Iowa 721, 104 N. W. 475; Gorham v. Stockyards Co., 118 Iowa 749, 92 N. W. 698; Huggard v. Glucose Co., 132 Iowa 724, 109 N. W. 475. 8. An instruction based upon an as- sumed risk in an action to recover dam- ages for negligence is improper where the defense of assumed risk is not pleaded: Lewis v. Texas etc. R. Co. (Tex. Civ. App.), 122 S. W. 605, 606, cit- ing International etc. R. Co. v. Harris, 95 Tex. 346, 67 S. W. 315; Missouri etc. R. Co. v. Jones, 35 Tex. Civ. App. 584, 8 Arkansas, Dig. of Stats. 1904 (Kirby), §6593. Idaho, Rev. Codes 1909, §2811. Montana, Rev. Codes 1907, §4325. • Nebraska, Comp. Stats. Ann. 1909, §2080; Ann. Stats. (Cobbey), §10598. Nevada, Comp. Laws Ann. 1900 (Cutting), § 1017. a New Mexico, Comp. Laws 1897, §3863. * North Dakota, Rev. Codes 1905, §4289. 'Oklahoma, Rev. and Oh. CVIIL] CODE PROVISIONS. 1481 Ann. Stats. 1903 (Wilson), § 1049; Comp. Laws 1909 (Snyder), § 1379. e South Dakota, Rev. Codes 1903, C. C. § 521. h Texas, Civ. Stats. 1897 (Sayles), Art. 4496. i Utah, Comp. Laws 1907, § 449. a Arizona, I 876. In case said corpo- ration shall refuse to transport persons or property as provided in the preced- ing section, or leave the same at place at destination, it shall pay to the party aggrieved all damages he or she shall sustain thereby. b Arkansas, § 6593, substantially same as Cal. Civ. Code § 482, except in line 3 after "appointed" change "places" to "time." c Nebraska, § 2080, substantially same as Cal. Civ. Code § 482, except in line 3 after "same" change the next passage to read "or either of them, under the laws, rules, and usages the [that] regulate common carriers," before "such corpora- tion." d New Mexico, § 3S63, substantially same as Arizona, fl 876. e North Dakota, § 4289. In case of the refusal by such corporation or its agents to take or transport any passenger or property as provided in the preceding section, or in case of the neglect or re- fusal of such corporation or its agents to discharge or deliver passengers or property at the regularly appointed place under the laws which regulate common carriers, such corporation shall pay to the party aggrieved all damages which shall be sustained thereby with costs of action. f Oklahoma, § 1049, same as North Da- kota § 4289. g South Dakota, Civ. Code § 521, same as North Dakota § 4289. h Texas, Art. 4496. In case of the re- fusal by such corporation or their agents so to take and transport any passenger or property, or to deliver the same, or either of them, at the regular[ly] ap- pointed time, such corporation shall pay to the party aggrieved all damages which shall be sustained thereby, with costs of suit, and in case of the transportation of property shall in addition pay to such party special damages at the rate of five per cent per month upon the value of the same at the time of shipment, for the negligent detention thereof beyond the time reasonably necessary for its transportation; provided, that in all suits against such corporation under this law the burden of proof shall be on such cor- poration to show that the delay was not negligent. i Utah, § 449. Every railroad company shall furnish sufficient accommodations for the transportation of all passengers and property as shall, within a reason- able time previous to the departure of any train, offer or be offered for trans- portation at any station, siding, or stop- ping place established for receiving and discharging passengers and freight, and at any railroad junction; and shall take, transport, and discharge such passengers and property at, from, and to such places, on the due payment of tolls, freight, or fare therefor; and if the com- pany or its agents shall refuse to take and transport any passenger or property, or to deliver the same at the regularly appointed places, it shall be liable to the party aggrieved for all accruing dam- ages, including costs of suit. Duty to furnish accommodations. California, § 483. Every railroad corporation must furnish, on the inside of the passenger cars, sufficient room and acommodations for all passengers to whom tickets are sold for any one trip and for all persons presenting tickets entitling them to travel thereon; and when fare is taken for transporting passengers on any baggage, wood, gravel, or freight car, the same care must be taken and the same responsibility is assumed by the corporation as for passen- gers on passenger cars. (Kerr's Cyc. Civ. Code.) baggage, wood or freight car, in viola- tion of the printed regulations of the 1482 INJURIES TO PASSENGERS, ETC. [Tit. XIII. The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: Idaho, Rev. Codes 1909, §2812. a Missouri, Ann. Stats. 1906, §1080. Mon- tana, Rev. Codes 1907, § 4326. b North Dakota, Rev. Codes 1905, § 4291. c Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §1051; Comp. Laws 1909 (Snyder), § 1381. a South Dakota, Rev. Codes 1903, C. C. § 523. • Utah, Comp. Laws 1907, §§449, 450. a Missouri, §1080. In case any pas- d South Dakota, Civ. Code §523, sub- senger on any railroad shall be injured stantially same as last clause of Cal. while on the platform of a car, or in any Civ - Code § 4S3 - ei Utah, § 449, see note l to Cal. Civ. Code § 4S2. e2 Utah, § 450. In case any passenger company, posted up at the time in a con- ghaU be injured on the p i at form of any spicuous place inside of its passenger car qt Qn any baggage> wood> gravel> or cars then in the train, such company freight ^ in violation of the printe d shall not be liable for the injury: Pro- regulations of the company> posted up at vided, said company, at the time, fur- the tIme in & conspicuous place inside of nished room inside its passenger cars m passenger cars then In the train or in sufficient for the proper accommodation violation of verbal instruct ion given by of the passengers. any officer of t ft e train or company, such b North Dakota, § 4291, substantially company shall not be liable for the said same as last clause of Cal. Civ. Code injury; provided, said company at the § 483. time furnished room inside its passenger c Oklahoma, § 1051, substantially same cars sufficient for the accommodation of as last clause of Cal. Civ. Code § 483. the passengers. Eviction of passenger refusing fare. California, § 487. If any passenger refuses to pay his fare, or v to exhibit or surrender his ticket, when reasonably requested so to do, the conductor and employees of the corporation may put him and his baggage out of the cars, using no unnecessary force, at any usual stopping place, or near any dwelling-house, on stopping the train. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Arkansas, Dig. of Stats. 1904 (Kirby), §6591. Idaho, Rev. Codes 1909, § 2822. b Missouri, Ann. Stats. 1906, § 1074. Montana, Rev. Codes 1907, § 4328. c Nebraska, Comp. Stats. Ann. 1909, §2065; Ann. Stats. (Cobbey), §10624. d Nevada, Comp. Laws Ann. 1900 (Cutting), §1019. « New Mexico, Comp. Laws 1897, §3847. * North Dakota, Rev. Codes 1905, §5688. e Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §1062; Comp. Laws 1909 (Snyder), §1394. h South Dakota, Rev. Codes 1903, C. C. §§545, 1593. « Utah, Comp. Laws 1907, § 451. i Wisconsin, Stats. 1898 (San. & Ber. Ann.), § 1818. a Arkansas, § 6591. If any passenger tion to put him out of the cars at any shall refuse to pay his fare or toll, it usual stopping place the conductor shall shall be lawful for the conductor of the select. *rain and the servants of the corpora- b Missouri, $ 1074. If any passenger Ch. CVIIL] CODE PROVISIONS. 148:J shall refuse to pay his fare, or shall be- have in an offensive manner, or be guilty of repeated violations of the rules of the company, it shall be lawful for the con- ductor of the train and the servants of the corporation to put him and his bag- gage out of the cars, using no unneces- sary force, at any usual stopping place, or near any dwelling-house, as the con- ductors shall elect, on stopping the train. c Nebraska, § 2065. If any passenger shall refuse to pay his fare, it shall be lawful for the conductor of the train and the servants of the corporation to put him and his baggage out of the cars, us- ing no unnecessary force, at any place within five miles of any station. d Nevada, § 1019, substantially same as Arkansas § 6591, except in line 2, after "toll," insert "upon demand"; also in line 6, after "any" omit "usual" before "stopping." e New Mexico, § 3S47. In addition to the foregoing, every corporation formed under this act shall have the following powers: * • * Thirteenth. To expel from its cars at any stopping place, using no more force than may be necessary, any passenger who, upon demand, shall re- fuse to pay his fare, or shall behave in a rude, riotous or disorderly manner to- ward other passengers, or the employees of such corporations in charge of such cars or, upon his attention being called thereto, shall persist in violating the rules of the corporation against gam- bling upon its cars. f North Dakota, § 5688. A passenger who refuses to pay his fare or to con- form to any lawful regulation of the car- rier may be ejected from the vehicle by the carrier. But this must be done with as little violence as possible and at any usual stopping place or near some dwell- ing-house. After having ejected the pas- senger a carrier has no right to require the payment of any part of his fare. g Oklahoma, §1062, substantially same as North Dakota § 5688. hi South Dakota, C. C. § 545. If any passenger shall refuse to pay his fare, it shall be lawful for the conductor of the train and the servants of the cor- poration to put him and his baggage out of the cars in the manner prescribed in section 1593. h2 South Dakota, § 1593, same as North Dakota § 56S8. i Utah, § 451, substantially same as Cal. Civ. Code § 4S7, except in line 2, omit "reasonably" before "requested"; also after "so to do" in the same line insert "or if he behaves in a disorderly man- ner" before "the conductor"; also in the line next to the last change "near" to "in sight of" before "any dwelling." j Wisconsin, § 1S18. If any passenger shall refuse to pay his fare it shall be lawful for the conductor of the train and the servants of the corporation to put him and his baggage off the cars, on stopping the cars and using no unneces- sary force, at any usual stopping place or near any dwelling-house, as the con- ductor shall elect. Regulations as to fares, etc. California, § 501. The rates of fare on the cars must not exceed ten cents for one fare for any distance under three miles, and in municipal corporations of the first class must not exceed five cents for each passenger per trip of any distance in one direction either going or coming, along any part of the whole length of the road or its connections. The cars must be of the most approved construc- tion for the comfort and convenience of passengers, and provided with brakes to stop the same, when required. A violation of the provisions of this section subjects the corpora- tion to a fine of one hundred dollars for each offense. (Kerr's Cyc. Civ. Code.) 1484 INJURIES TO PASSENGERS, ETC. [Tit. XIII. The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Hawaii, Rev. Laws 1905, §843. b Oregon, Ann. Codes and Stats. 1902 (Bel. & Cot), § 2096. a Hawaii, § 843. 1. Any person riding without the payment of an extra fare upon the cars of said railway shall be upon the lines of this railway. * • • liable to pay for such transportation the " Oregon, § 2096. That it shall be un- following rates: For a continuous ride lawful for an ^ P erson ' company, or cor- anywhere between Diamond Head and poration owning or operating a line or „,.„,., lines of street railway within the corpo- Moanalua, or Makai of a line drawn par- ,. , , . ... „*,,*„ n r rate limits of any city in the state or allel to the sea coast, and one and a Oregon navin g a population of over fifty half miles distant therefrom, not to ex- thousand inhabitants, to charge a rate ceed five cents, provided that children of fare to any passenger exceeding the under seventeen years of age in going to sum f five cents for any one continuous and from school, shall not be required trip in any one general direction be- to pay over half fares, for which purpose tween any two points on the street rail- tickets shall be issued. * * * way line of such person, company, or 3. Upon a continuous trip, persons rid- corporation within the corporate limits of ing upon the cars, and transferring from such city. Any violation of this section one car to another upon a connecting shall be punished by a fine of not less line within the limits above mentioned, than fifty dollars nor more than one hun- shall be entitled to a transfer ticket dred dollars. §375. COMPLAINTS [OR PETITIONS]. FORM No. 898 — Against street railway corporation for damages for personal injuries sustained by passenger through negligent and care- less starting of car. (In Renfro v. Fresno City R. Co., 2 Cal. App. 317; 84 Pac. 357.) [Title of court and cause.] Plaintiff complains of defendant, and for cause of action alleges: 1. That defendant is, and at all the times named in this complaint was, a corporation' duly incorporated and doing business under the laws of the state of California, and during all of said time was and is the owner of and operating certain street railways on and along cer- tain public streets in the city of Fresno, in the county of Fresno, and state of California, including a certain railway running over and along that certain street in said city known as Blackstone Avenue, extending along said Blackstone Avenue to a point at or near the intersection of said Blackstone Avenue with the south line of Bel- mont Avenue ; that defendant is the owner of the track, rolling-stock, and other appliances thereto belonging, and was at the time herein mentioned, and it still is, a common carrier of passengers for hire over its said street railways. Ch. CV1II.] COMPLAINTS [OR PETITIONS].— FORMS. 1485 2. That on or about the 4th day of February, 1904, the defendant, in consideration of the sum of five cents then paid to it by plaintiff therefor, undertook and agreed as such common carrier to transport and convey the plaintiff over its said railroad along Blackstone Ave- nue to the terminus of said railroad, at or near the south line of Belmont Avenue, as a passenger, and plaintiff thereupon entered one of the cars of said defendant to be so conveyed. 3. That while plaintiff was as such passenger on said car, and being so conveyed thereon, and while in the act of getting out of and from said car, and being still thereon, to wit, on the platform and steps thereof, and at the terminus of said railroad near Belmont Avenue as aforesaid, and at the place where said car usually stopped for passengers to alight therefrom, and while said car had slowed up for the purpose of permitting passengers to get off from said car, the employees of said defendant who were then and there running said car, and had the same under their charge and control, negligently and carelessly caused said car to be suddenly and violently jerked and started and put in rapid motion without allowing plaintiff sufficient time to alight therefrom ; that in consequence of said negligent and careless action of said defendant's employees, and without any fault or negligence on the part of plaintiff, and as a further consequence of the negligence and carelessness of defendant's said employees in running and conducting said car, plaintiff was violently thrown from said car to the ground and thereby sustained the following described injuries, to wit : He was greatly injured, bruised and crippled in his body and right leg, and the femur, commonly known as the thigh- bone, was fractured, by reason whereof plaintiff has been unable to bes,r but little weight upon his right leg, and has been unable to walk except with the aid of crutches, and by reason whereof plaintiff was made sick and confined to his house for a long time, and has suffered, and does suffer, great bodily pain and mental anguish, and has been unable to do any work or to attend to any business since said 4th day of February, 1904. Plaintiff is informed and believes, and upon such information and belief alleges, that his injuries are of a permanent character, and on account thereof plaintiff is and will be incapaci- tated permanently from working at his trade and business or earning a livelihood ; that plaintiff is a bricklayer by trade, and before receiv- ing said injuries was able to and did secure continuous employment at his trade, and received therefor the sum of $6 per day ; that were it I486 INJURIES TO PASSENGERS, ETC. [Tit. X1I1. not for said injuries plaintiff would now be able to earn said sum of $6 per day; that plaintiff has been thereby damaged in the sum of $726; that plaintiff was made sick on account of said injuries, and was compelled to and did employ physicians to attend to him in his said sickness, and has become obligated to said physicians for their services in the additional sum of $25. 4. That plaintiff has been and is damaged, on account of said injuries so received by him, in all, in the sum of $10,000. Wherefore, plaintiff prays judgment against said defendant for the sum of $10,000 damages, and for costs of suit. Harris & Perkins, [Verification.] Attorneys for plaintiff. FORM No. 899 — Against common carrier, for personal injuries resulting from wrongful ejection of passenger from street-car. (In Braly v. Fresno City R. Co., 9 Cal. App. 417; 99 Pac. 400.) [Title of court and cause.] Plaintiff complains of defendant, and for cause of action alleges : 1-4. [After the usual averments as to the incorporation of defend- ant company, its ownership and operation of street-car lines, desig- nating them ; that defendant was and is a common carrier for hire ; that plaintiff boarded one of defendant's cars and paid his fare, and was a passenger thereon, etc., the complaint proceeds:] That after said car had started along Stanislaus Street fare was again demanded by the conductor thereof from the plaintiff, * * * which plaint- iff refused to pay, and told him that if he would stop the car he would disembark; that thereupon the conductor took hold of the plaintiff in a violent and disagreeable manner, and began to scuffle with and otherwise injure and mistreat the plaintiff, and solely and only as a result thereof, and of the manner in which plaintiff was maltreated, abused, and handled by the conductor of said car, the agent and representative of said defendant, plaintiff was violently thrown from said car while the same was rapidly moving, and at a speed, as plaintiff is informed and believes, of about fifteen miles an hour or more, and landed upon the ground upon his left side, strik- ing his shoulder and head, and thereby sustained great injury and damage, to wit : he was greatly injured, bruised, and crippled in his left shoulder and arm, and upon his head and face ; that his left arm was broken and shoulder crushed, and he was permanently injured Ch. CVIII.J COMPLAINTS [OR PETITIONS].— FORMS. 14y7 and crippled, in this, that he thereby permanently lost the use of his left arm and hand; that plaintiff has been required to pay, and has paid, large sums of money to doctors, physicians, and surgeons in the care and treatment of the injuries so occasioned, and also hospital and other expenses necessarily incurred because of said injury, said sums amounting, in the aggregate, to the sum of $250; that, further- more, plaintiff has been and is damaged on account of the injuries so received by him in the sum of $10,000. Wherefore, plaintiff prays for judgment against the defendant for the sum of $10,250, and for his costs of suit. L. L. Cory, and M. K. Harris, [Verification.] Attorneys for plaintiff. FORM No. 900 — For damages for forcible ejection from train. (In Wieland v. Southern Pacific Co., 1 Cal. App. 343; 82 Pac. 226.) [Title of court and cause.] Plaintiff complains of the defendant, and for cause of action alleges : 1. That the defendant is now, and at all the times herein men- tioned was, a corporation organized and existing under and by virtue of the laws of the state of Kentucky ; and at all times herein mentioned was engaged in the business of a common carrier of pas- sengers for hire between the places of its line of railroad hereinafter mentioned. 2. That on or about the 18th day of June, 1902, plaintiff was desirous of being conveyed from the city of Fresno, county of Fresno, state of California, to the station of Rolincla, in said county and state, upon one of defendant's railroad trains, and on or about said day and at and in the city of Fresno, and for the purpose aforesaid, plaintiff got aboard one of defendant's railroad trains; that the train which plaintiff got aboard as aforesaid, and in which he desired to be conveyed to said station of Rolinda, was at the date aforesaid, and had been for a long time prior thereto, regularly used and employed by defendant for the purpose, among other things, of carrying pas- sengers for hire from said city of Fresno to said station of Rolinda. and, in pursuance of said purpose, the rules and regulations of said defendant permitted said train to stop at said station of Rolinda. 1488 INJURIES TO PASSENGERS, ETC. [Tit. XIII. 3. That soon after leaving said city of Fresno on said train, plaint- iff, in conformity with the rules of defendant, paid to one of the agents of defendant, to wit, the conductor of said train, the full amount of fare regularly charged by said defendant as hire for con- veying a passenger from said city of Fresno to said station of Ro- linda ; that said fare was duly and without protest accepted by said conductor and said fare was not, nor was any part thereof, ever returned to plaintiff. 4. That thereafter, and before reaching said station of Rolinda, and at an unusual stopping-place on the line of defendant's railroad, and far from any dwelling-house, the conductor of said train forci- bly, oppressively, and maliciously, and with great force, violence, and rudeness, expelled and ejected plaintiff from said train, and refused plaintiff the privilege of riding on said train the remainder of the distance to said station of Rolinda ; that at the time of being expelled from said train plaintiff was suffering from a serious ill- ness, and was able to walk only with great pain and difficulty, of all of which he fully informed said conductor; that on being ejected from said train with great force and violence as aforesaid plaintiff was seriously maimed and injured, and was further weakened and rendered unable to walk; that at the time plaintiff was ejected and expelled from said train it was already late in the evening, to wit, about seven o'clock or thereabouts, and soon thereafter became dark, by reason of all of which it was impossible for plaintiff to reach a place where he could receive food or shelter or comfort; * * * that in consequence of the facts set forth plaintiff was compelled to lie during the whole of the night following his expulsion from said train in an open field at or near the point where he was expelled from said train, and was without food or shelter or medicines, and suffered great pain and mental anguish; that on the morning fol- lowing plaintiff was so weakened and ill and exhausted that it was impossible for him to walk or secure means of conveyance from said place, and he was compelled to lie at or near said place during the entire day following without food or shelter or comfort or medicine, to his great and permanent injury and damage. 5. That by reason of defendant's negligence as aforesaid, as in the paragraph above set forth, plaintiff was seriously and permanently injured, and suffered, and still suffers, great physical pain and great mental distress and anguish, and became and continued to be sore. •Ch. CVIII.] COMPLAINTS [OR PETITIONS].— FORMS. 1489 maimed, and crippled; that he has been, and will continue to be, incapacitated and prevented from carrying on his usual occupation, which was that of a laborer, and from which he was earning prior to said injury $30 per month ; that he has necessarily expended the sum of $50 for medical treatment as the result of said injury, all to the great and permanent damage of plaintiff in the sum of $10,000. Wherefore, plaintiff prays judgment against defendant for the sum of $10,000, and for costs of suit. Henry Brickley, and George Cosgrave, [Verification.] Attorneys for plaintiff. FORM No. 901 — For personal injuries suffered by wife. — Joining of hus- band in the action. (In Choctaw etc. R. Co. v. Burgess, 21 Okla. 653; 97 Pac. 271.) l [Title of court and cause.] Comes now the plaintiffs, Myra Burgess and W. N. Burgess, her husband, and state : 1. That plaintiffs are wife and husband, and both are citizens of the United States, residing in the southern district of the Indian Terri- tory; that the defendant, the Choctaw, Oklahoma, and Gulf Railroad Company, is a corporation duly organized, existing, and doing busi- ness in the Indian Territory under and by virtue of the laws in force in said territory, and as such is authorized and empowered to sue and be sued in its corporate name. 2. That defendant company now is, and continuously during all the dates herein mentioned has been, the owner of, and operating, a railroad in and through the Indian Territory, and in and between the town of Ardmore, in the southern district, and the town of Haileyville, in the central district of said territory, and in, through, and between the town of Provence and the town of Mannsville, in said southern district of the Indian Territory, and at said towns has and maintains depots and stations, and on said railroad runs and i With reference to the joining of the husband in the action of Choctaw etc. R. Co. v. Burgess, supra, the court held that it was not necessary to construe the statute providing "that where a married woman is a party, her husband must be joined with her, except in the following cases: * « • sn e may maintain an action in her own name • » * for damages against any person or body cor- porate for any injury to her person, character, or property": Mansf. Dig. Ark. 1884, § 4951, extended by act of Congress to the Indian Territory (Ann. Stats. 1889, 13156). ]490 INJURIES TO PASSENGERS, ETC. [Tit. XIII. operates engines and cars for the accommodation and transportation of passengers and freight, and was during all said times, and now is. a common carrier of passengers for hire. 3. That heretofore, to wit, on the 1st day of December, 1903, the plaintiff Myra Burgess went to the depot and station of defendant company at the town of Provence, and went aboard the passenger cars of defendant at said station, and became a passenger of defend- ant company, for the purpose of being carried and transported from said town of Provence to the said town of Mannsville. 4. That on said date defendant was running and operating an engine and cars, constituting the passenger train, on said line of rail- road between the said town of Provence and the town of Mannsville ; that defendant company, by and through its agents and employees, stopped said train at said town of Provence, and plaintiff Myra Burgess attempted to board said train; that at the time she was aboard said train, and had gotten on the steps of one of said cars, the defendant company, by and through its agents, servants, and employees in charge of said train, carelessly and negligently, and without regard to the safety of plaintiff Myra Burgess, started and moved said train in a quick, rapid, careless, and negligent manner, and thereby threw her forcibly and violently upon and against an iron railing upon said car, and upon and against other parts of said car, and thereby severely bruised her left arm above the elbow, bruised and wounded and injured her on the right side of the bowels and just above the pelvis bone, and in her head, back, bowels, organs of generation, and other parts of her body; that at the time of the infliction of said injuries as aforesaid the plaintiff Myra Burgess was pregnant, [and by reason of said injuries she has been constantly threatened with miscarriage,] 2 and has at all times been under the care of a physician; that, by reason of the careless and negligent infliction of said injuries as aforesaid, the plaintiff Myra Burgess received a great shock to her nervous system such as has impaired and will permanently impair her general health, that will shorten her life, and, together with said injuries, will cause her life to be one of continued suffering and pain. 2 A demurrer to the complaint in Choctaw etc. Co. v. Burgess, supra, shown in form No. 901, was sustained as to the allegation contained in said complaint that the plaintiff was threatened with miscarriage as a result of the injuries sustained, but in all other respects the demurrer was overruled, and judgment for the plaintiff was finally affirmed. Cli. CVIII.J COMPLAINTS [OR PETITIONS].— FORMS. 1491 That by reason of such injuries so produced the plaintiff Myra Burgess has constantly and continually and ever since suffered and endured great mental injury and agony. That since the infliction of said injuries as aforesaid, plaintiffs have been compelled to expend for medicines and care of a physician for plaintiff Myra Burgess the sum of $300; that by reason of the foregoing facts plaintiffs allege that the plaintiff Myra Burgess has been damaged in the sum of $25,000. [Prayer.] Cruce & Bleakmore, [Verification.] Attorneys for plaintiffs. FORM No. 902 — By passenger, for damages caused by negligent operation of an elevator. (In Cragg v. Los Angeles Trust Co., 154 Cal. 663; 98 Pac. 1063.) [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That defendant is a corporation duly organized and existing under the laws of the state of California, and at all times herein men- tioned was, and now is, the owner of, and in possession of and occu- pying, the building hereinafter mentioned, and as a part of the use of said building operated the elevator therein, hereinafter men- tioned. 2. That on the 26th day of October, 1906, plaintiff was in the employ of defendant, and it was his duty in the service of the defend- ant to remove a galvanized iron barrel or can from the second floor of said building to the ground floor; that said building is a seven- story building, on the corner of Second and Spring streets in the city of Los Angeles, county of Los Angeles, state of California ; that in the performance of said duty it was necessary that the plaintiff should, and he was obliged to, enter the elevator operated by defendant in said building and place therein said barrel or can; that on said 26th day of October, 1906, about half-past 7 o'clock in the morning, as plaintiff entered said elevator to place therein said barrel or can, defendant negligently allowed and caused said elevator suddenly and unexpectedly to be abruptly or improperly started in such a manner as to, and defendant did thereby, precipitate plaintiff against the wall of the shaft in which said elevator ascended and descended, and crushed plaintiff between said elevator car and wall, breaking his jawbone, disfiguring his face, and otherwise injuring him. 1492 INJURIES TO PASSENGERS, ETC. [Tit. XIII. 3. That because of such injuries plaintiff has been compelled to employ a doctor at an expense, up to this time, of $72, and has paid more than $20 for medicines, bandages, and dressing for his wounded face, and $16 for a nurse; that plaintiff was further thereby ren- dered and made unable to pursue his usual or any vocation up to this time, to his loss in the sum of $75, all of which was rendered neces- sary and occasioned by said negligence of defendant. 4. That by reason of said negligent crushing, bruising, and disfig- uring of plaintiff by defendant plaintiff has been further damaged in the additional sum of $2,000. Wherefore, plaintiff prays judgment against defendant for the sum of $2,187, and for costs of suit. Wellborn & Wellborn, [Verification.] Attorneys for plaintiff. Form of complaint in an action to recover damages for injuries to plaintiff's person, caused by the falling of an hydraulic elevator operated by defendants in their store: Treadwell v. Whittier, 80 Cal. 574, 576, 22 Pac. 266, 13 Am. St. Rep. 175, 5 L. R. A. 498. Form of complaint in an action to recover damages for mistreatment while a passenger on a boat: Mace v. Reed, 89 Wis. 440, 441, 62 N. W. 186, 187. §376. ANNOTATIONS. — Negligence of carriers. — Actions for injuries to passengers not resulting in death. 1. Nature of action against carrier. 2. Action ex delicto. — Pleading contract as matter of inducement. 3. General negligence. — Averment of. 4, 5. Action for wrongful expulsion. — What action will be. 6. Averment as to payment or tender of fare. 7. Complaint charging gross negligence. 8. Instruction as to damages for mental suffering, etc. 9. Alleging cause of derailment of car not required. 10. Proof of derailment of car. 11. Motion for nonsuit. — Statement of grounds. 1. Nature of action against carrier. — alleges the payment of his fare and the An action against a carrier for breach promise of the company to carry him, of contract may be for the breach or in and then proceeds to state the tort, and tort for a violation of duty as common his claim for damages arising on account carrier: Sloane v. Southern California R. thereof, the action is declared to be one Co., Ill Cal. 668, 677, 44 Pac. 320, 32 in tort, for the reason that the grava- L. R. A. 193. See Jones v. Steamship men or gist of the action proceeds ex Cortes, 17 Cal. 487, 79 Am. Dec. 142. delicto on the breach of the duty owing 2. Action ex delicto. — Pleading con- to the public imposed by law: Canady tract as matter of Inducement. — When v. United R. Co., 134 Mo. App. 282, 114 an action against a carrier sounds in S. W. 88, 90; Denver etc. R. Co. v. Cloud, tort, the allegation of the contract of 6 Colo. App. 445, 40 Pac. 779; Head v. carriage is regarded as mere inducement Georgia etc. R. Co., 79 Ga. 358, 7 S. B. to the action to show the plaintiff's right 217, 11 Am. St. Rep. 434; Ames v. United to sue as a passenger. Therefore, in R. Co., 117 Mass. 541, 19 Am. Rep. 426; cases of this class, where the plaintiff Hammond v. Railway Co., 6 S. C. 130, Ch. CVIII.] ANNOTATIONS. 1493 137, 24 Am. Rep. 467; Brown v. Railroad Co., 54 Wis. 342, 347, 11 N. W. 356, 911, 41 Am. Rep. 41. 3. General negligence. — Averment of. — The following is an example of an aver- ment of general negligence: "The de- fendant carelessly and negligently caused and permitted the train on which plaint- iff was riding as a passenger to come in violent collision with another train of defendant's, said other train being on said Street, and on said incline as aforesaid; that said collision was oc- casioned without any fault on the part of the plaintiff, but by reason of the negligence as aforesaid of the defend- ant": Price v. Metropolitan S. R. Co., 220 Mo. 435, 119 S. W. 932, 937, 132 Am. St. Rep. 588. 4. An action for wrongful expulsion with force and violence is in effect an action for tort for breach of duty: Gor- man v. Southern Pacific Co., 97 Cal. 1, 6, 31 Pac. 1112, 33 Am. St. Rep. 157. See Pittsburgh etc. R. Co. v. Reynolds, 55 Ohio St. 370, 45 N. E. 712; 60 Am. St. Rep. 706; Northern Pacific R. Co. V. Pauson, 70 Fed. 585, 17 C. C. A. 287, 30 L. R. A. 730. 5. Action In tort or on the case will He to recover damages for wrongful ex- pulsion: Gorman v. Southern Pacific Co., 97 Cal. 1, 6, 31 Pac. 1112, 33 Am. St. Rep. 157. 6. Averment as to payment or tender of fare. — It is not necessary that the plaintiff allege strictly a legal tender of fare; it is sufficient to allege that he was ready and willing and offered to pay the defendant such sum of money as it was legally entitled to charge. Whenever performance of a duty or ob- ligation is cast upon one party in con- sequence of the contemporaneous act of payment by the other, it is sufficient if the latter is ready and willing to pay when the former is ready to undertake the duty: Tarbell v. Central Pacific R. Co., 34 Cal. 616, 622. See White v. Chesapeake R. Co., 26 W. Va. 800, 805, and note 77 Am. Dec. 474. 7. Complaint charging gross negli- gence should set forth by averments that the act or omission causing the injury complained of had been wanton, or wilful: Gould v. Merrill R. & L. Co., 139 Wis. 433, 121 N. W. 161, 164, (obiter). 8. Instruction as to damages for men- tal suffering, etc. — Where the defend- ant is fairly advised by the allegations Jury's PL— 95. of the pleading that a recovery would be sought for mental and physical suf- fering of a wife resulting in being car- ried beyond their station while with her husband as a passenger on a train, and where no exception to the petition for morp specific allegations was presented to the court, it can not be said that the court erred in instructing the jury, in effect, that damages, if any, were recoverable for mental and physical suf- fering of the wife caused by the walk back to her station: St. Louis etc. R. Co. v. Franks (Tex. Civ. App.), 114 S. W. 874, 876. 9. Alleging cause of derailment of car not required. — No duty rests upon a plaintiff who was a passenger to allege or prove in his affirmative case the par- ticular cause of a derailment in which he was injured, and where such allega- tions appear, they are treated as sur- plusage. He may rely upon his prima facie case without attempting to sub- stantiate them: Hoskins v. Northern Pacific R. Co., 39 Mont. 394, 102 Pac. 9*8, 990, overruling views in conflict with this expression in Pierce v. Great Falls etc. R. Co., 22 Mont. 446, 56 Pac. 867. 10. Proof of derailment of a car, in- consequence of which a passenger therein was injured, is ordinarily prima facie evidence of negligence on the part of the common carrier. For this reason no necessity exists for the passenger to allege the particular cause of the de- railment: Hoskins v. Northern Pacific R. Co., 39 Mont. 394, 102 Pac. 988, 990. 11. Motion for nonsuit. — Statement of grounds. — In an action against a rail- road corporation for alleged negligence and lack of care in allowing its rail- road tracks to become out of repair, the unsafe condition of which was alleged to have caused the accident in which the plaintiff was injured, the motion for nonsuit thereon was granted and judg- ment on appeal affirmed. The grounds of the motion were stated as follows: "On the ground that there is nothing in the derailment of a train that creates a presumption of negligence in the case of this defendant; that there is no proof that plaintiff was a passenger; that there has been no proof of the allega- tions of excessive speed, or negligence in respect to defective rails, and no proof of any of the particular [averments of] negligence alleged in the complaint, 1494 DEATH BY WRONGFUL ACT. [Tit. XIII. and no proof that the defendant com- schedule time is not any evidence of pany had allowed its track to become negligence": Hoskins v. Northern Pa- out of repair or in an unsafe condition, cific R. Co., 39 Mont. 394, 102 Pac. 988, and also upon the ground that the mere 990. running at a speed in excess of the CHAPTER CIX. Death by Wrongful Act. Page § 377. Complaints [or petitions] 1494 Form No. 903. Against common carrier by representative of a decedent, for damages for wrongful death. — Decedent a passenger on defendant's train.. 1494 Form No. 904. By representative, for wrongful death caused by collision 1495 Form No. 905. By heir at law against street railway corpora- tion, for damages resulting from the death of a minor child caused by negligent opera- tion of street-cars 1496 Form No. 906. By husband and minor children, to recover damages for death of wife and mother of said minors 1498 § 378. Replication 1500 Form No. 907. In action by administrator for wrongful death of passenger on overloaded street-car 1500 § 379. Judgment [or decree] 1501 Form No. 908. For plaintiff upon verdict 1501 § 380. Annotations 1502 §377. COMPLAINTS [OR PETITIONS]. FORM No. 903 — Against common carrier by representative of a decedent, for damages for wrongful death. — Decedent a passenger on defendant's train. [Title of court and cause.] Plaintiff complains of defendant, and for cause of action alleges: 1. [If the defendant is a corporation common carrier, allege:] That the defendant was at the times hereinafter mentioned and is a corporation created by and under the laws of this state, and was and is a common carrier of persons and property for hire, between the places hereinafter mentioned, and was the owner and in possession of the cars, train of cars, and railroad tracks hereinafter mentioned, and during all said times was, and it still is, engaged in operating said cars and trains over said tracks. Ch. CIX.] COMPLAINTS [OR PETITIONS].— FORMS. 1495 2. That on the day of , 19 , by the order of the court of the county of , in the state aforesaid, duly given and made, the plaintiff, , was appointed executor [or adminis- trator] of the estate of L. M., deceased, and letters testamentary [or of administration] on said estate were ordered to issue to plaintiff upon qualifying; that the plaintiff thereafter duly qualified as such executor [or administrator], and thereupon letters testamentary [or of administration] were issued to plaintiff on the day of , 19 , and plaintiff is now, and ever since has been, the duly qualified and acting executor [or administrator] of the estate of said L. M., deceased. 3. That on the day of , 19 , the defendant, in con- sideration of the sum of $ , paid as fare by said L. M., received the said L. M. as a passenger on said railroad from to 4. That on said last-named day [or state when], and while said L. M. was on the cars on the said journey, at , and in this state, the car in which L. M. was passenger, by the negligence of the defendant and its servants, was thrown from the track, and said L. M. was, without fault on his part, thereupon and thereby immedi- ately killed. 5. That said L. M. left him surviving, as his only heirs, E. M., his widow, and F. M., his daughter, a child of years, and G. M., his son, a child of years, [etc.] his only children, and next of kin, all of whom were dependent upon him for support; that said chil- dren were also dependent upon the said L. M. for nurture and edu- cation ; that thereby said E. M., F. M., and G. M., [etc.,] have been injured by the death of L. M. in the amount of $ Wherefore, the plaintiff, as such administrator [or executor], asks judgment in said amount of $ , and for such other relief as may be proper, and for costs. A. B., Attorney for plaintiff. [Verification.] FORM No. 904 — By representative, for wrongful death caused by collision. [Title of court and cause.] 1-3. [Same as in preceding form.] 4. That the defendant and its servants and employees so negli- gently and unskilfully conducted itself and themselves in the man- agement of said train of cars, and in not keeping the track of said 1496 DEATH BY WRONGFUL ACT. [Tit. XIII. railroad clear of other cars [or state such other acts of defendant as may have caused the injury complained of], that said train, while proceeding from to , was violently run into by and col- lided with another train running [or standing] on said track, thereby causing the car in which said [decedent] was traveling to become wrecked [or allege other facts, describing how said train was wrecked or thrown from the tracks, as the case may be], and the said [naming decedent] was thereby fatally injured, his death resulting immedi- ately therefrom [or state when death so resulted]. 5. [Same as paragraph 5 in preceding form.] [Concluding part.] FORM No. 905 — By heir at law against street railway corporation, for dam- ages resulting from the death of a minor child caused by negligent operation of street-cars. (In Schneider v. Market Street R. Co., 134 Cal. 482; 66 Pac. 734.) [Title of court and cause.] Plaintiff complains of defendant, and for cause of action alleges: 1. That she is the mother of Carl Richard Schneider, hereinafter mentioned, and his only surviving heir at law. 2. That at all the times herein mentioned defendant was, and now is, a corporation duly organized under the laws of the state of Cali- fornia, with its principal place of business at the city and county of San Francisco, state of California. 3. That at all the times hereinafter mentioned the defendant was the owner, and in the possession of, and employed in, the manage- ment and operation of certain street railroads in the city and county of San Francisco, together with the cars, rolling-stock, and appur- tenances thereof. 4. That upon the 9th day of December, 1898, defendant was operat- ing its system of street railroads upon East Street, in said city and county, and was engaged in running street-cars over and upon said street. 5. That upon the said 9th day of December, 1898, at about the hour at 6:30 o'clock P. M., Carl Richard Schneider was crossing East Street where the same intersects with Pacific Street, in said city and county. 6. That while said Carl Richard Schneider was crossing East Street aforesaid where the same intersects with Pacific Street, a car Ch. CIX.] COMPLAINTS [OR PETITIONS].— FORMS. 1497 of said defendant, The Market Street Eailway Company, ii? charge of its agents, servants, and employees, crossed Pacific Street where it intersects with East Street, going towards the north along East Street at a high rate of speed, to wit, in excess of eight miles per hour, and, without ringing a bell or sounding a gong, or without any other warning or any warning, violently struck said Carl Richard Schneider in the head, fracturing his skull and killing him instantly. 7. That in crossing East Street where the same intersects with Pacific Street, in said city and county of San Francisco, the defendant and the persons in charge of said car, to wit, the conductor and motorman, permitted said car to approach said street-crossing within a distance of twenty-five feet and less, without ringing a bell or sounding a gong, nor was any such bell or gong rung or sounded at all while said car was approaching or passing over said street-cross- ing. 8. That at all the times herein mentioned there was in full force and effect in said city and county of San Francisco a certain ordi- nance, duly and regularly adopted and passed by the board of super- visors thereof, and in full force and effect on and after November 11, 1882, and known as order No. 1694 of the board of supervisors of the city and county of San Francisco, by which said order it was ordained that "It shall be unlawful for the engineer, driver, con- ductor, or person in charge of any street-car, train of street-cars, grip-car, or dummy, propelled by means of wire ropes attached to stationary steam-engines or a locomotive engine, or by electric motor, to permit said street-car, train of street-cars, grip-car, or dummy, to approach a street crossing in said city and county within a distance of twenty-five feet without ringing a bell or sounding a gong, which bell or gong must be rung or sounded until said street-car, train of street-cars, grip-car, or dummy car, shall have passed over said street-crossing." 9. That the death of said Carl Richard Schneider resulted directly and proximately from the gross and reckless negligence of defend- ant, and its agents, servants, and employees in charge of and run- ning said car at said time, to wit, first, in crossing Pacific Street where it intersects with East Street, at a high rate of speed, to wit, in excess of eight miles per hour; second, in permitting said car to approach Pacific Street where the same intersects with East Street, 1498 DEATH BY WRONGFUL ACT. [Tit. XIII. within a distance of twenty-five feet or less, without ringing a bell or sounding a gong. 10. [Same as paragraph 9, omitting the specifications of negli- gence.] 11. That by reason of the death of said Carl Richard Schneider through the gross and reckless negligence of the defendant and its agents, servants, and employees in charge of and running said car at «said time, plaintiff has been greatly damaged, to wit, in the sum of $25,000, no part of which has been paid. Wherefore, plaintiff prays judgment against defendant for the sum of $25,000, together with costs of suit. "William J. Herrin, [Verification.] Attorney for plaintiff. FORM No. 906 — By husband and minor children, to recover damages for death of wife and mother of said minors. (In Johnson v. Southern Pacific R. Co., 154 Cal. 285; 97 Pac. 520.) [Title of court.] Frank W. Johnson, and Olin W. Johnson and Leslie H. Johnson, by C. F. Carrier, their guardian ad litem, plaintiffs, v. Southern Pacific Railroad Com- pany, a corporation, defendant. [Introductory part.] 1. That the plaintiff Leslie H. Johnson is a minor, of the age of seventeen years, and plaintiff Olin W. Johnson is a minor, of the age of thirteen years ; that on the 1st day of November, 1901, the superior court of the county of Santa Barbara, state of California, by its order duly given and made on said date, appointed C. F. Carrier, an attorney and counselor at law of this court, guardian ad litem for said minor plaintiffs herein, Leslie H. Johnson and Olin W. Johnson. 2. That the defendant is, and was at all the times hereinafter men- tioned, a corporation duly organized and existing under the laws of the state of California, for the purpose, among other things, of maintaining and operating a single track steam railroad, of a stand- ard gauge, commencing at or near San Miguel, in the county of San Luis Obispo, and running thence southerly through the counties of Ch. CIX.] COMPLAINTS [OR PETITIONS].— FORMS. 1499 San Luis Obispo, Santa Barbara, Ventura, and Los Angeles, to and through the town of Sagus, in Los Angeles County; that at all the times hereinafter mentioned defendant was maintaining and operat- ing such steam railroad, and was the owner of the track, rolling- stock, and other appurtenances thereto belonging, of the said South- ern Pacific Railroad Company. 3. That said railroad, above five miles west of the city of Santa Barbara, crosses obliquely the county road known as Hollister Ave- nue, about ninety rods east of the place where the road known as the Modoc Road enters said Hollister Avenue, the acute angle formed thereby being about thirty degrees ; that the said crossing is an over- head one, the track being upon the bridge over said road, and the public road excavated so as to pass under the bridge, and being hedged by the sides of the cut on each side ; that said bridge is sup- ported by three abutments, one on each side of the county road and one in the middle; that the space between said abutments is about twelve feet, and said abutments are about eighty feet in length ; that by reason of trees and other obstacles the view up and down the track is very much obstructed, so that persons driving along Hollister Avenue can not see approaching trains ; that by reason of the said construction of said crossing the same is a dangerous one to persons driving along Hollister Avenue. 4. That on the 25th day of July, 1901, Katherine S. Johnson, the wife of the plaintiff Frank W. Johnson, and the mother of the plaint- iffs Leslie H. Johnson and Olin W. Johnson, was driving from plaint- iffs' home near Goleta along Hollister Avenue towards the city of Santa Barbara, and, as she approached said crossing, defendant caused one of its locomotives, with a train of cars attached thereto, to approach said crossing at a high rate of speed, and in so doing disre- garded its duty to give signals of such approach, but, on the contrary, caused said train to approach negligently and carelessly and without signaling, either by blowing a whistle or ringing a bell, or by flag, or otherwise ; that the said Katherine S. Johnson was therefore unaware of the approach of said train, and began to drive under said crossing before the passage of said train, and just as her horse and wagon were under said bridge said train passed over the same, negligently and carelessly as aforesaid. 5. That in consequence of the dangerous character of said crossing .as maintained by defendant, and of the failure on its part by reason 1500 DEATH BY WRONGFUL ACT. [Tit. XIII. of its negligence and carelessness to give the proper or any signal as its train approached said crossing, the horse of said Katherine S. Johnson was frightened and ran away, and she was thrown violently out of the wagon and killed. 6. That by reason of her death plaintiff Frank W. Johnson was- deprived of her services and assistance and companionship, and the plaintiffs Leslie H. Johnson and Olin W. Johnson were deprived of the care, training, and society of their said mother, and plaintiffs have been damaged thereby in the sum of $20,000. AVherefore, plaintiffs pray judgment against the defendant in the sum of $20,000, and costs of suit. Richards & Carrier, Attorneys for plaintiffs. C. F. Carrier, [Verification.] Guardian ad litem for minor plaintiffs. A demurrer to the complaint in form No. 906 was originally sustained by the- trial court, but, upon appeal, the judgment for defendant following the sustaining of said demurrer, plaintiffs declining to further amend, was reversed: Johnson v. Southern Pacific R. Co., 147 Cal. 624, 82 Pac. 306, 1 L. R. A. (N. S.) 307; s. c, 154 Cal. 285, 97 Pac. 520. For defenses to actions for negligence generally, see ch. CV, forms Nos. 866-868. §378. REPLICATION. FORM No. 907 — In action by administrator, for wrongful death of passenger on overloaded street-car. (Adapted from Olston v. Oregon etc. R. Co., 52 Ore. 343; 96 Pac. 1095; 97 Pac. 538; 20 L. R. A. (N. S.) 915m) 1 [Title of court and cause. Now comes the plaintiff and replies to the answer of the defendant herein, and alleges as follows : 1. Plaintiff, for reply to said answer, denies the execution of the l Fraud In procuring contract of release under seal. — Defense in action at law as affected by statute. — On the rehearing of the case from which the foregoing form is taken, the court, with reference to the defense of fraud as against an instrument under seal, says: If a simple contract is induced by fraud, the defrauded party may rescind it without the aid of equity, and may plead the fraud in defense of an action to enforce it or to recover damages for its breach. The seal is primary evidence of a consideration, which means that the presump- tion thus arising may be overcome by evidence to the contrary, and is therefore subject to defenses at law, the same as a simple contract in which the considera- tion is expressed: Olston v. Oregon etc. R. Co. (Ore.), 97 Pac. 538, citing Brown v. Freeman & Bynum, 79 Ala. 406; Strayhorn v. Giles, 22 Ark. 517; Aller v. Aller, 40 N. J. 446; Milliken v. Thorndike, 103 Mass. 382; Irving v. Thomas, 18 Me. 418; Williams v. Haines, 27 Iowa 251, 1 Am. Rep. 268, distinguishing the last named case as to the force of the Iowa statute from the case of Vandervelden v. Chicago etc. R. Co. (C. C), 61 Fed. 54, in which it was held that such defense is cogniz- able only in equity. Ch. C1X.] JUDGMENT [OR DECREE].— FORMS. 1501 release as alleged therein, but states affirmatively that, being induced by false, fraudulent, and unlawful representations made by defend- ant with intent to defraud and deceive him, he signed the said release in his individual capacity, and not as administrator of the estate of decedent, and that thereafter he rescinded said settlement and tendered the return of all money, checks, and deposits, given by the defendant for said release. 2. That the following is a statement of the facts constituting said false, fraudulent, and unlawful representations made by defendant to the plaintiff, and because of which, and not otherwise, the plaintiff signed said alleged release: [Here are alleged the facts constituting the fraud.] And for a second and separate reply, plaintiff alleges : That said release and settlement, or settlement, is not binding upon the estate of the decedent or his personal representatives, for the reason that the same was made without an order of the county court authorizing the same. Wherefore, plaintiff prays that said release be rescinded and can- celed and decreed to be void and of no effect, and that plaintiff be awarded the relief prayed for in his complaint herein. A. B., Attorney for plaintiff. §379. JUDGMENT [OR DECREE]. FORM No. 908— For plaintiff upon verdict. (In Johnson v. Southern Pacific R. Co., 154 Cal. 285; 97 Pac. 520.) [Title of court and cause.] This cause came on regularly for trial. The said parties appeared by their attorneys, — Richards & Carrier, counsel for the plaintiffs, and Canfield & Starbuck, for defendant. A jury of twelve persons were regularly impaneled and sworn to try said action. Witnesses on the part of the plaintiffs and defendant were sworn and examined. After hearing the evidence, the arguments of counsel, and instruc- tions of the court, the jury retired to consider of their verdict, and subsequently returned into court with the verdict, signed by the foreman, and, being called, answered to their names, and said: "We, the jury in this cause, find a verdict for the plaintiff for $8,000." Wherefore, by virtue of the law, and by reason of the premises aforesaid, it is ordered, adjudged, and decreed, that plaintiffs have and recover from defendant the sum of $8,000, with interest thereon 1502 DEATH BY WRONGFUL ACT. [Tit. XIII. at seven per cent per annum from the date hereof until paid, together with plaintiffs' costs and disbursements incurred in this action, amounting to the sum of $105.10. Dated, February 2, 1906. J. W. Taggart, Judge of the Superior Court. Forms of petition [and complaints] in actions for death by wrongful act: Atchi- son etc. R. Co. v. Cochran, 43 Kan. 225, 23 Pac. 151, 41 Am. & Eng. R. Cas. 48; Weber v. Atchison etc. R. Co., 54 Kan. 389, 390, 38 Pac. 569; Galveston etc. R. Co. v. Leonard (Tex. Civ. App.), 29 S. W. 955; Wellman v. Oregon etc. R. Co., 21 Ore. 530, 531, 28 Pac. 625. Form of petition in an action by an administratrix to recover damages for the death of her husband, caused, as alleged, by the negligence of the defendant rail- road companies: St. Louis etc. R. Co. v. Willis, 38 Kan. 330, 338, 16 Pac. 728. Form of answer in an action to recover damages alleged to have resulted from wrongful death caused by the gross and wanton negligence of a railroad company: Limekiller v. Hannibal etc. R. Co., 33 Kan. 83, 5 Pac. 401, 52 Am. St. Rep. 523, 19 Am. & Eng. R. Cas. 184. Form of answer in an action to recover damages for death by wrongful act; action brought by the administrator for the benefit of the father and mother of the deceased: Cherokee etc. Min. Co. v. Britton, 3 Kan. App. 292, 298, 45 Pac. 100, 103. Form of instructions to jury in an action brought to recover damages for death caused by the negligent explosion by defendant of a blast, whereby the plaintiff's intestate was killed: Munro v. Pacific Coast Dredging etc. Co., 84 Cal. 515, 516, 24 Pac. 303, 18 Am. St. Rep. 248. §380. ANNOTATIONS.— Death by wrongful act. 1. Time in which suit must be brought. 2. Statutory requirements must appear in the petition. 3. Existence of beneficiaries designated by the statute must be alleged. 4. Action under Arizona statute. 5. Existence of beneficiaries. — When not required to allege. 6. All heirs. — When necessary parties. 7. Substitution of representative for heirs as parties. 8. Foreign state. — Action maintained in. 9, 10. Manner of pleading negligence. — Specific and general allegations. 11. Damages. — Elements of. 12. "Sorrow, grief, and mental suffering." 13. "Society, comfort," etc. 14. Loss of services of child. 15. Pecuniary loss as measure of damages. 16. Pecuniary damages. 17. Measure of compensation to minors for death of parent. 18. Statutory limitation upon damages. 19. Passenger in automobile. — Death resulting from negligence. 20. Defenses. — Contributory negligence of parent. 21, 22. Unskilful treatment of patient. 23. Defenses of assumption of risk and contributory negligence of deceased. 24. Negligence and contributory negligence. — Questions of fact. 1. Time In which suit must be v. Kansas City etc. R. Co., 219 Mo. brought. — Actions for wrongful death 524, 118 S. W. 40, 45, and cases cited, are statutory, and the persons who 2. Statutory requirements must ap- alone may sue must sue within the pear In the petition. — In statutory ac- time prescribed by the statute: Clark tions, sueh as that for wrongful death, €h. CIX.] ANNOTATIONS. 1503 the party suing must bring himself strictly within the statutory require- ments necessary to confer the right, and this must appear in the petition; other- wise, it shows no cause of action: Bar- ker v. Railroad, 91 Mo. 94, 14 S. W. 282; Clark v. Kansas City etc. R. Co., 219 Mo. 524, 118 S. W. 40, 45. 3. Existence of beneficiaries desig- nated by the statute must be alleged.— Where the statute gives a right of action in favor of a designated class of beneficiaries in existence, the failure to aver in the declaration or complaint the existence of any of such latter class is fatal on demurrer: Bartlett v. Chicago etc. R. Co., 21 Okla. 415, 96 Pac. 468, 470, quoting the rule as stated in 13 Cyc. 342. 4. Action under Arizona statute. — Action for damages resulting from death caused by the tort of another, under paragraph 2765 of the Revised Statutes of Arizona of 1901, is for the benefit of the estate of the decedent: Southern Pacific Co. v. Wilson, 10 Ariz. 162, 85 Pac. 401, 403. Under the statute of Arizona (Rev. Stats. 1902, H 2765), creating a right of action for damages resultant from deatli caused by the tort of another, and pro- viding: "Every such action shall be brought by and in the name of the per- sonal representative of such deceased person; and, providing, that the father, * * * may maintain the action for the death of a child; * * * and the amount recovered in such action shall be distributed to the parties and in the proportions provided by law in re- lation to the distribution of personal estates left by persons dying intestate"; held, that a complaint is sufficient which contains allegations "that plaintiff and his wife are father and mother of the deceased; that plaintiff, on [a day stated], was the defendant's tenant of the premises in question, then owned by defendant; that the defendant wrongfully and negligently kept and maintained, and suffered to remain, upon the premises a certain adobe wall, exposed and in a dangerous condition; that defendant knowingly maintained said adobe wall with utter disregard to persons living and to business in and upon said premises, and knowingly and wilfully suffered said wall to re- main in said dangerous condition after being notified of the said condition of the said adobe wall; that without fault or negligence of the decedent or plaint- iff the said wall fell on and instantly killed the decedent; that by reason of the premises, and by virtue of para- graph 2764 of the Revised Statutes, a cause of action has arisen in favor of plaintiff against defendant for damages for the death of said child; that said damages are $4,800," etc. In this com- plaint the court held that every essen- tial fact was disclosed. The complaint should, however, contain an allegation whether the plaintiff seeks to sue in a representative capacity, or whether he is attempting to sue in a personal capacity. The complaint above was in- definite in this respect; but inasmuch as the defendant failed to make any objection by special demurrer or by mo- tion to make more definite and certain, the court held that such indefiniteness could not be cured on appeal, and that, in the main, the complaint sufficiently disclosed a right of action in the plaint- iff in this representative capacity: De Amado v. Freidman (Ariz.), 89 Pac. 588, 5S9 (for wrongful death of child — negli- gence in maintaining dangerous wall). 5. Existence of beneficiaries. — When not required to allege. — In such actions it is not incumbent upon the plaintiff to allege or prove the existence of bene- ficiaries, or the amount of damages suf- fered by them. Damages are deemed to have been caused to the estate by reason of the death, and are to be dis- tributed as by law to those who are entitled by law to such estate: Southern Pacific Co. v. Wilson, 10 Ariz. 162, 85 Pac. 401, 402 (for damages for wrongful death of adult person — negligence re- sulting in railroad collision). 6. All heirs. — When necessary parties. — Under the California statute, an ac- tion for wrongful death may be brought either by the representative or all the heirs. If an action is brought by heirs, all must be joined therein, either as plaintiffs or defendants: Salmon v. Rathjens, 152 Cal. 290, 294, 92 Pac. 733. 7. Substitution of representative for heirs as parties. — In an action for wrongful death, the personal represent- ative may be substituted in place of the wloow and. cnnareiv, &.n& su::k pro- stitution is not in violation of the gen« erai rule forbidding a substitution ot parties which operates to change the original cause of action: Pugmire v. 1504 DEATH BY WRONGFUL ACT. [Tit. XIII. Diamond Coal etc. Co., 26 Utah, 115, 72 Pac. 385; Sargent v. Union Fuel Co. (Utah), 108 Pac. 928, 929. 8. Foreign state. — Action maintained In. — An action for death by wrongful act under a statute giving the right may be maintained in another state having a statute substantially similar in import and character: St. Louis etc. R. Co. v. Haist, 71 Ark. 258, 72 S. W. 893, 100 Am. St. Rep. 65; St. Louis etc. R. Co. v. McNamare, 91 Ark. 515, 122 S. W. 102, 105. See cases cited in note to Raisor v. Chicago etc. R. Co., 2 Am. & Eng. Ann. Cas. 806. 9. Manner of pleading negligence. — Specific and general allegations. — A pe- tition in which the following specific allegations are found was held not en- titled to be treated as a petition charg- ing general negligence; and held, fur- ther, that the same were intended as a specific summary of the more general allegations which preceded them, al- though this did not convert the pleading from one specifically alleging negligence to one alleging negligence only gener- ally. The following are the allegations referred to: "That the death of plaint- iff's said husband, George W. Evans, was caused by the carelessness and negligence of defendant's engineer run- ning said passenger engine, in failing and neglecting to keep a proper lookout in front of his engine, and in failing and neglecting to observe the said freight engine and train standing on said track, and by the carelessness and negligence of the engineer and train crew of said freight train aforesaid, in failing and neglecting to give the proper signals to the engineer of said passenger engine in time to avoid said collision, thereby causing said collision and killing plaint- iff's said husband as aforesaid": Evans v. Wabash R. Co., 222 Mo. 435, 121 S. W. 36, 41. 10. As to the manner of pleading neg- ligence in actions to recover for wrong- ful death, see Chicago etc. R. Co. v. Smith (Ark.), 127 S. W. 715, 717. 11. DAMAGES. — Elements of . — Ele- ments of damages proper to be consid- ered by jury for which damages may be awarded to parents in actions for wrongful death are: (1) loss of child's services during minority; (2) mental anguish and suffering of parents; (3) expenses for medical attendance; and (4) funeral expenses: Karr v. Parks, 44 Cal. 46; Sykes v. Lawlor, 49 Cal. 236; Cleary v. City R. Co., 76 Cal. 240, 18 Pac. 269. (But see cases cited In para- graphs 12 and 14, post.) 12. "Sorrow, grief, and mental suffer- ing." — Mental distress of parent conse- quent upon death of child is not an ele- ment of damages: Morgan v. Southern Pacific R. Co., 95 Cal. 510, 30 Pac. 601, 603, 17 L. R. A. 71, 29 Am. St. Rep. 143. "Sorrow, grief, and mental suffering" are circumstances too remote to be taken into consideration by a jury in assessing damages: Munro v. Pacific Coast D. & R. Co., 84 Cal. 515, 525, 24 Pac. 303, 18 Am. St. Rep. 248. See State v. Baltimore etc. R. Co., 24 Md. 84, 87 Am. Dec. 600. 13. "Society, comfort," etc. — In esti- mating the pecuniary loss the jury may be instructed that they have a right to take into consideration the loss of soci- ety, comfort, and care suffered by the heirs in the death of a husband and father; but compensation for loss of society, comfort, and care can not be made a separate and distinct element of damage: Dyas v. Southern Pacific Co., 140 Cal. 296, 73 Pac. 972. See Munro v. Pacific Coast D. & R. Co., 84 Cal. 515, 24 Pac. 303, 18 Am. St. Rep. 248; Louis- ville etc. R. Co. v. Goodykoontz, 119 Ind. Ill, 21 N. E. 472, 12 Am. St. Rep. 371, and note 12 Am. St. Rep. 375-383; Hale v. San Bernardino etc. Co., 156 Cal. 713, 716, 106 Pac. 83, and cases cited. 14. Loss of services of child. — In such a case the main element of damages is the loss of the child's services; and de- termination of such damages is left by the legislature to the discretion of the jury: Cleary v. City R. Co., 76 Cal. 240, 18 Pac. 269; Morgan V. Southern Pacific R. Co., 95 Cal. 510, 30 Pac. 601, 29 Am. St. Rep. 143, 17 L. R. A. 71. 15. Pecuniary loss as measure of dam- ages. — In an action under a statute for negligence in wrongfully causing death, the damages must be confined to the pecuniary loss suffered by kindred and loss of comfort, society, support, and protection of the deceased: Munro v. Pacific Coast D. & R. Co., 84 Cal. 515, 527, 24 Pac. 303, 18 Am. St. Rep. 248. 16. Pecuniary damages are limited to probable value of life of deceased to rel- atives: Morgan v. Southern Pacific R. Co., 95 Cal. 510, 30 Pac. 601, 603, 29 Am. St. Rep. 143, 17 L. R. A. 71; Pepper v. Southern Pacific Co., 105, Cal. 389, 3& - & Post, [Verification.] Attorneys for plaintiff. FORM No. 951 — To recover property obtained by fraud and collusion, and to adjudge plaintiffs the owners thereof. (In Boon v. Root, 137 Wis. 451; 119 N. W. 121.) * [Title of court and cause.] Plaintiffs complain of defendants, and for cause of action allege : That Lavina C. Curtis, a resident of the village of Rio, Wisconsin, was prior to her death, hereinafter alleged, an aunt of the plaintiffs; that on January 4, 1890, in expectation of death, said Lavina C. Curtis made, executed, and delivered a conveyance of lands [here described] to her husband, Delos Curtis, for the term of his natural life ; that after the death of the said Delos Curtis said real property i The complaint in the form No. 951 sets forth the substantial averments In the case as the same appear In the report thereof: Boon v. Root 137 Wis 451 119 N. W. 121. 122. 1576 FRAUD AND DECEIT. [Tit. XIV. was to go to the plaintiffs, who were then living with their said aunt, the mother of plaintiffs having died in the year 1881 ; that said Lavina C. Curtis died January 16, 1890; that the conveyance afore- said was on February 3, 1890, recorded in the office of the county recorder of Columbia County, state of Wisconsin, the same being the county in which said lands are situated, and the same remains of record therein. 2. That the plaintiffs, except Rose V. Hoban, within a few weeks after the death of their said aunt, moved to the home of their father in Chicago, where they and each and all of them have since resided ; that said Rose V. Hoban went to her father's home in June or July, 1890 ; that, with this exception, the plaintiffs have resided in Chicago since their said removal thither; that in July, 1890, said Delos Curtis married one Loretta D. Root, a widow with two children by a former marriage; that said Delos Curtis failed and neglected to pay the taxes assessed against said premises, in which he held such life estate, and, as a consequence of said neglect, the said premises were sold at tax sale on the day of , 1892, for the sum of $12.21, to William H. Root, son of said Loretta D. Curtis, formerly the said Loretta D. Root. 3. That on August 28, 1895, a tax-deed was issued to said Loretta D. Curtis as the owner of the tax certificate issued to her said son ; that notice of said intention to take a tax-deed was served on her husband, but that no notice thereof was given to the plaintiffs or any of them ; that on July 22, 1901, said Loretta D. Curtis executed a life lease of said premises to said Delos Curtis and Carrie M. Bush, her daughter ; that this lease was recorded August 30, 1901, in the office of the county recorder of said county, state aforesaid ; that on May 29, 1903, said Loretta D. Curtis executed a warranty deed of the said premises, subject to said lease, to the said William H. Root, and that said deed was recorded in the office of the county recorder of said Columbia County on September 9, 1903. 4. Plaintiffs allege that Delos Curtis intentionally omitted and refused to pay the taxes assessed against the premises, and that the tax-deed aforesaid was procured by the connivance and collusion of said Delos Curtis, Loretta D. Curtis, William H. Root, and Carrie M. Bush, and that said tax proceedings were taken for the purpose of fraudulently cutting off and destroying the rights of the plaintiffs in the premises. Ch. CXVI.] ANSWERS— FORMS. 1577 5. That said Loretta D. Curtis died in the year 1905, and the said Delos Curtis died on the 23d day of March, 1907. 6. Plaintiffs allege that none of the facts regarding the procuring of the said tax-deed, and the said collusion and connivance of the defendants with the defendants' mother and Delos Curtis in fraudu- lently securing said tax title as aforesaid, were known to plaintiffs, or any of them, until after the death of said Delos Curtis; that plaintiffs had ahvays believed that he, said Delos Curtis, as life tenant under the deed from said Lavina C. Curtis, paid the taxes on the premises ; that the plaintiffs, and each and all of them, never had any knowledge or notice whatever that the said taxes were not paid. 7. That said Carrie M. Bush is now in possession of the premises ; and that the said Carrie M. Bush, with her said brother, William H. Root, are the sole heirs at law of the said Loretta D. Curtis. 8. Plaintiffs allege that they are the owners of the said premises, and that the. defendants claim an interest therein adverse to the plaintiffs, by and through the said tax-sale and tax-deed, but that the said claim of the defendants is inferior and subordinate to the rights of the plaintiffs as shown herein. That plaintiffs have tendered and offered to pay the said "William H. Root the said sum of $12.21, with interest from the date of the tax-sale to the time of said tender and offer, and now and herewith tender and offer to pay said sum to the said William H. Root, with interest from the date of said tax-sale. Wherefore, plaintiffs pray that the said tax proceedings, the said life lease from said Loretta D. Curtis to said Delos Curtis and said Carrie M. Bush, and said conveyance to said William H. Root, be set aside and held for naught, and that the defendants be required to release all their pretended interests in the said premises, that plaint- iffs be adjudged the owners thereof, and that defendants deliver the possession thereof to the plaintiffs, and for such other and further relief as the court may deem just. "FT F A H [Verification.] Attorney for plaintiffs. §400. ANSWERS. FORM No. 952— Denial of fraud. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition], and denies: 1578 FRAUD AND DECEIT. [Tit. XIV. That he obtained the said deed [or other instrument] from the plaintiff by fraud or misrepresentation. [Deny the particular alle- gations.] FORM No. 953 — Defense that the writing declared upon in the complaint departed from the oral agreement in substantial and material respects, and was entered into through the false and fraudulent representations of the plaintiff's agent. — Action to recover for goods sold and delivered. (In Providence Jewelry Co. v. Crowe, 108 Minn. 84; 121 N. W. 415.) [Title of court and cause.] [After formal introductory part, denials of the averments of the complaint inconsistent with this defense, and after stating the terms of the oral agreement :] That on the said 20th day of March, 1907, and immediately after said oral contract and agreement was entered into by and between the plaintiff, through its agent, and the defendant, the plaintiff, by its agent, voluntarily assumed to reduce the said oral contract to writing; that plaintiff, through its said agent, with intent to cheat and defraud defendant, and for the purpose of inducing defendant to sign said written instrument, pretended to reduce said oral con- tract to writing; that defendant, relying upon the honesty and integrity of said agent, and believing that said agent had reduced the said oral contract to writing in the exact terms of said oral agree- ment, and not otherwise, was induced to sign the same; * * * that the said agent, for the purpose of cheating and defrauding this defendant, made the aforesaid writing, which is a different contract and agreement from the one orally made by the plaintiff, through its said agent, and defendant, and which said written instrument does not contain any of the terms and conditions of said oral agreement ; that, depending upon the false and fraudulent statements of the said agent then and there made, defendant did not read the said written instrument so reduced to writing, and, believing and relying upon said written instrument containing the provisions and agreements of the oral contract aforesaid, and not otherwise, defendant signed the same without any consideration, and without any knowledge on his part of the contents or the purport thereof; that under the belief on the part of the defendant that the said instrument so signed was the said oral contract hereinbefore mentioned, which Ch. CXVI.] ORDER AND DECREE.— FORMS. 1579 belief was induced by said false and fraudulent representations of the plaintiff, through its agent, the defendant has never consented to enter into the contract or agreement set forth in said complaint. [Concluding part.] §401. ORDER AND DECREE. FORM No. 954 — Order to show cause and preliminary Injunction. — Action to rescind contract for fraud. (In Shopbell v. Boyd, 9 Cal. App. 136; 98 Pac. 69.) [Title of court and cause.] The plaintiff in the above-entitled cause having commenced an action in the superior court of the county of Los Angeles, state of California, against the above-named defendants, and having applied for an order of this court against defendants, requiring them to refrain from certain acts in said complaint and more particularly hereinafter mentioned; now, on reading the said complaint in said action, duly verified by the oath of the plaintiff, and it satisfactorily appearing to me that this is a proper case for an injunction and that sufficient grounds exist therefor: It is hereby ordered, that you, Mattie H. Boyd and J. Newton Bunch, defendants in said action, appear on Friday, the 23d day of February, 1906, at the hour of ten o'clock A. M. of said day, in department 3 of the superior court of the county of Los Angeles, state of California, at the courthouse in said county, and then and there show cause, if any you have, why an injunction should not be issued restraining you from disposing of, directly or indirectly, or transferring by deed or otherwise, that certain real property situate in the city of Chicago, county of Cook, state of Illinois, and described in the complaint herein, during the pendency of this action. And the plaintiff herein, having given an undertaking approved and as required by me in the sum of $500, you and each of you are strictly commanded to refrain from disposing of or encumbering, directly or indirectly, by deed or otherwise, the property herein- before referred to, until the further order of this court. Dated this 9th day of February, 1906. D. K. Trask, Judge. 1 580 FRAUD AND DECEIT. [Tit. XIV. FORM No. 955 — Judgment in action to rescind contract for purchase of stock induced by fraud. (In Davis v. Butler, 154 Cal. 623; 98 Pac. 1047.) [Title of court and cause.] It is ordered, adjudged, and decreed herein, as follows: That the agreement set forth in the complaint whereby plaintiff purchased from defendant 250 shares of the capital stock of the Salinas Valley Bottling Company, a corporation, be and the same is hereby rescinded, canceled, and set aside. That the plaintiff recover of the defendant ten shares of the cap- ital stock, unencumbered, of the San Miguel Flouring Mill Com- pany, a corporation, and the sum of $360 in money, and the posses- sion of lots 1, 2, and 3, of block 8, as per Spring's map of Salinas City, Monterey County, state of California, and that defendant recover of the plaintiff 250 shares of the capital stock of the Salinas Valley Bottling Company, a corporation, unencumbered; that the defendant transfer to plaintiff ten shares of the capital stock of the said San Miguel Flouring Mill Company, unencumbered, and the certificate therefor now in possession of the defendant, with the sum of $360 in money, and that he execute, acknowledge, and deliver to plaintiff a good and sufficient conveyance of the real property hereinabove described, free and clear of encumbrance; that until said transfers are completed, and until the final disposition of this case, J. J. Kelly be and he is hereby appointed receiver to take and hold possession of all of said property, upon giving an undertaking in the sum of $500, as provided by law (Cal. Code Civ. Proc, § 567). It is further decreed, that said J. J. Kelly be and he is hereby ap- pointed commissioner of this court, and, as such, he is empowered and directed to execute the transfers and conveyance herein referred to upon the failure of either party to comply with this decree, when the judgment in this cause shall have become final; that plaintiff recover his costs of suit, taxed at $ B. V. Sargent, Judge of Superior Court. For substance of a complaint in an action for equitable relief against fraudulent acts of the promoters of a corporation, see Wills v. Nehalem Coal Co., 52 Ore. 70, 96 Pac. 528, 530. Form of complaint in an action for obtaining money and property by false and fraudulent representations: Warner v. Bates, 75 Wis. 278, 43 N. W. 957, 958. Form of complaint in an action for alleged fraud and deceit in the sale of mining stock: Barndt v. Frederick, 78 Wis. 1, 3, 47 N. W. 6, 11 L. R. A. 199. Ch. CXVI.] ANNOTATIONS. 1581 Form of petition In an action for fraud and deceit in a transaction relating to a timber-culture claim: Davis v. Jenkins, 46 Kan. 19, 26 Pac. 459. Form of answer in an action to recover damages for fraudulent representations: Warren v. Hall, 20 Colo. 508, 509, 38 Pac. 767. §402. ANNOTATIONS.— Fraud and deceit. 1. 2,3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14, 15. 16. 17. 18. Essential allegations. Action for deceit. — When maintainable. — Cause of action stated. Defendants' knowledge of falsity must be averred. Preventing recovery on fraudulent instrument. Specific pleading of fraud. General charge of fraud insufficient. Bill in equity. — Fraud in general terms. Jurisdiction acquired by court of law. Conclusions not pleadable. Words "fraud," "unlawful," "wilful," etc. Waiver as to averring specific facts. Constructive fraud. — Manner of pleading. Election between remedies in cases of fraud. Defense that contract does not conform to oral agreement. Fraud as defense must be set up. Defense as to value. — When not permitted. 1. Essential allegations. — A complaint in an action to recover damages alleged to have been caused by fraudulent repre- sentations inducing the plaintiff to pur- chase stock in a certain mining company is sufficient where the essential allega- tions are made: (1) that the representa- tions which induced the plaintiff to pur- chase from the defendant were made to the plaintiff by the defendant; (2) that such representations were false, and that the defendant knew them to be false; and (3) that the plaintiff was deceived thereby to his damage in a sum specified: Ford v. Freeman, 138 Wis. 503, 120 N. W. 234, 235. 2. An action for damages for deceit is maintainable where the party is induced to purchase an interest in a property by false statements as to the amount of business done and profits realized by the sellers while they were conducting the business: Del Vecchio v. Savelli, 10 Cal. App. 79, 101 Pac. 32, 34; Markel v. Moudy, 11 Neb. 213, 7 N. W. 853. 3. A cause of action for deceit is stated In a complaint which sets forth, in sub- stance, the following facts: "That dur- ing 1886 the Swedish-American Publish- ing Company, a corporation, issued to plaintiff two shares of its capital stock, for which he paid $10 each, being the par value thereof; that sucb corporation was engaged in publishing a newspaper called the 'Svenska Amerikanska Posten' ; that from the time of the purchase of the stock until 1901 defendant was the managing director of the company; that some time during 1901, the exact date being unknown to plaintiff, defendant fraudulently represented to plaintiff that the stock which he, plaintiff, had pur- chased was worthless, and that the com- pany was in debt; that plaintiff was ig- norant of the true condition of affairs, had no knowledge that the corporation had at that time disposed of the news- paper, and, having no knowledge of the true facts, relied upon the representa- tions of defendant that the same was of no value, and transferred said stock to defendant at the price for which he bought the same; that each of such shares of stock was worth at that time at least the sum of $7,500; that by reason of the fact that plaintiff had parted with his stock he was damaged in the sum of $12,500; that on or about June 15, 1908, and immediately after discovering the facts constituting said fraud, plaint- iff offered to restore the consideration to defendant, rescinded the sale, and duly demanded that defendant return the stock certificate, which he refused to do; that defendant has converted the shares of stock to his own use, and that it will 15S2 FRAUD AND DECEIT. [Tit. XIV. be useless to make any further demand for their return," etc.: Newstrom v. Turnblad, 108 Minn. 58. 121 N. W. 236. 4. Defendant's knowledge of the falsity must be averred. — A complaint in an ac- tion to recover damages alleged to have been sustained by plaintiff by reason of misrepresentations made by defend- ant is insufficient where it does not al- lege defendant's knowledge of the falsity of the representations made to the plaintiff, and where it is not alleged that the representations were made for the purpose of inducing the plaintiff to pur- chase the property: Colorado Springs Co. v. Wight, 44 Colo. 179, 96 Pac. 820, 822. 5. Preventing recovery on fraudulent Instrument. — The law relieves against fraud negatively by preventing either a recovery or a defense founded upon an Instrument induced by fraud: Olston v. Oregon W. P. & R. Co., 52 Ore. 343, 96 Pac. 1095, 1097, 97 Pac. 538, 20 L. R. A. (N. S.) 915, citing Lamborn v. Watson, 6 Har. & J. (Md.) 252, 255, 14 Am. Dec. 275. 6. Specific pleading of fraud. — The law is well settled that where a party seeks to recover on the grounds of deceit and false and fraudulent representations he must plead the particular representations that were made, and that they were false and fraudulent and material, and that the party injured believed and relied on such statements, and acted upon the be- lief and with the understanding that such false and fraudulent representations were in fact true. He must also show the specific instances in which they were untrue, and in what the untruth or de- ception consisted: Kemmerer v. Pollard, 15 Idaho 34, 96 Pac. 206, 207; Brown v. Bledsoe, 1 Idaho 747; Watson v. Molden, 10 Idaho 571, 79 Pac. 503; Specht v. Allen, 12 Ore. 117, 6 Pac. 494; Kountze v. Ken- nedy, 147 N. Y. 124, 41 N. E. 414, 29 L. R. A. 360, 49 Am. St. Rep. 651; Rothmil- ler v. Stein, 143 N. Y. 581, 38 N. E. 718, 26 L. R. A. 148; Southern Development Co. v. Silva, 125 U. S. 247, 8 Sup. Ct. 881, 31 L. ed. 678. 7. General charge of fraud Insufficient. — A complaint charging fraud generally, but which sets forth no facts support- ing the allegation of fraud, is insuffi- cient: Gill v. Manhattan L. Ins. Co. cealed or removed from this state his property, or so much thereof that the process of the court, after judgment, can not be executed, or that the defend- ant has money or securities for money, or evidence of debt, in the possession of himself, or of others for his use, and is about to depart from this state without leaving property therein sufficient to satisfy the plaintiff's claim. c Idaho, § 4241. The defendant may be arrested as hereinafter prescribed, in the following cases: 1. In an action for the recovery of money or damages on a cause of action arising upon a contract express or im- plied where the defendant is about to ilepart from the state with intent to defraud his creditors, or when the action is for wilful injury to person, to char- acter, or to property, knowing the prop- erty to belong to another; 2. In an action for a fine or penalty, or on a promise to marry, or for money or property embezzled, or fraudulently mis- applied, or converted to his own use, by a public officer or an officer of a cor- poration, or an attorney, factor, broker, agent or clerk, in the course of his em- ployment as such or by any other person in a fiduciary capacity; or for misconduct or neglect in office or in a professional employment or for a wilful violation of duty; (Remainder same as Cal. C. C. P. § 479.) a Kansas, § 5030. An order for the ar- rest of the defendant shall be made by the clerk of the court in which the ac- tion is brought, when there is filed in his office an affidavit of the plaintiff, his authorized agent or attorney, stating the nature of the plaintiff's claim, that it is just, and the amount thereof, as nearly as may be, and showing one or more of the following particulars: First. That the defendant has removed or begun to remove any of his property out of the jurisdiction of the court, with intent to defraud his creditors. Second. That he has begun to convert his property or a part thereof into money, for the purpose of placing it be- yond the reach of his creditors. Third. That he has property or rights of action which he fraudulently conceals. Fourth. That he has assigned, removed or disposed of, or has begun to dispose of his property or a part thereof, with intent to defraud his creditors. Fifth. That he fraudulently contracted the debt or incurred the obligation for which suit is about to be or has been brought. The affidavit shall also con- tain a statement of the facts claimed to justify the belief In the existence of one or more of the above particulars. (Re-enacted Mch. 12, 1909, Laws 1909, p. 329, C. C. P. § 148.) e Montana, § GG96, first sub. same as first sub. of Idaho § 4241, remainder same as subs. 2 to 5 inclusive of Cal. C. C. P. § 479. f Nebraska. There is now no provis- ions for the arrest of a defendant in a civil action on mesne process; but § 7124 provides for the issuance of an execution against the person of the debtor upon a money judgment in certain cases. g Nevada, § 3168, substantially same as Cal. C. C. P. § 479, except at the end of first sub. add "or when the action is for libel or slander." Also in the last clause of sub. three change the words "to pre- vent its being" to read "so that it can- not be" before the word "found." h North Dakota, § 6S90. The defend- ant may be arrested as hereinafter pre- scribed in the following cases: 1. In an action for the recovery of damages for any injury to person or character, or for injuring or for wrong- fully taking, detaining or converting property. 2. In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent or other person in a fiduciary capacity, in the course of his employment as such. 3. In an action to recover the posses- sion of personal property unjustly de- tained, when the property, or any part thereof, has been concealed, removed or disposed of, so that he [it] cannot be found or taken by the sheriff and with the intent that it should not be found or taken, or with intent to deprive the plaintiff of the benefit thereof. 4. When the defendant has been guilty of a fraud in contracting the debt, or in incurring the obligation for which the action is brought, or in con- cealing or disposing of the property, for the taking, detention or conversion of which the action is brought, or when the action is brought to recover dam- ages for fraud or deceit. 1620 ARREST AND BAIL. [Tit. XV. 5. When the defendant has removed or disposed of his property or is about to do so with the intent to defraud his creditors. But no female shall be arrested in any action except for wilful injury to per- son, character or property. 1 Oregon, § 260. No person shall be arrested in an action at law, except as provided in this section. The defend- ant may be arrested in the following cases: 1. In an action for the recovery of money or damages on a cause of action arising out of contract, when the de- fendant is not a resident of the state, or is about to remove therefrom, or when the action is for an injury to person or character, or for injuring or wrongfully taking, detaining, or converting prop- erty. 2. In an action for a fine or penalty, or on a promise to marry, or for money re- ceived, or property embezzled, or fraud- ulently misapplied, or converted to his own use, by a public officer, or by an at- torney, or by an officer or agent of a corporation in the course of his employ- ment as such, or by any factor, agent, broker, or other person in a fiduciary capacity, or for any misconduct or neg- lect in office, or in a professional em- ployment. Subs. 3, 4, 5 and final paragraph, same as Alaska C. C. P. § 99. ] South Dakota, C. C. P. 5 157. The defendant may be arrested, as herein- after prescribed, in the following cases: 1. In an action for the recovery of damages, on a cause of action not arising out of contract, where the defendant is not a resident of the state, or is about to remove therefrom, or where the action is for an injury to person or character, or for injuring, or for wrongfully taking, detaining or converting property. 2. In an action for a fine or penalty, or on a promise to marry, or for money re- ceived, or for property embezzled or fraudulently misapplied, by a public offi- cer, or by an attorney, solicitor, or coun- selor, or by an officer or agent of a cor- poration or banking association, in the course of his employment as such, or by any factor, agent, broker, or other per- son in a fiduciary capacity, or for any misconduct or neglect in office, or in a professional employment. [Remainder same as North Dakota S 6890, from and including sub. 3 to the end.] (Re-enacted Feb. 26, 1907, Sess. Laws 1907, pp. 165, 178.) k Utah, § 3010. No person shall be ar- rested in a civil action except an ab- sconding debtor. 1 Washington, §749. The defendant may be arrested in the following cases: 1. In an action for the recovery of damages, on a cause of action not aris- ing out of contract, where the defendant is a non-resident of the state, or is about to remove therefrom, or where the ac- tion is for an injury to person or charac- ter, or for injuring, or for wrongfully taking, detaining, or converting prop- erty; 2. In an action for a fine or penalty, or on a promise to marry, or for money re- ceived, or property embezzled, or fraudu- lently misapplied, or converted to his own use, by a public officer, or by an at- torney, or by an officer or agent of a corporation in the course of his employ- ment as such, or by any factor, agent, broker, or other person in a fiduciary ca- pacity, or for any misconduct or neglect in office or in a professional employ- ment; 3. In an action to recover the posses- sion of personal property unjustly de- tained, when the property, or any part thereof, has been concealed, removed, or disposed of, so that it cannbt be found or taken by tne sheriff, and with intent that it should not be so found or taken, or with the intent to deprive the plaint- iff of the benefit thereof; 4. When the defendant has been guilty of a fraud in contracting the debt, or incurring the obligation for which the ac- tion is brought, or in concealing or dis- posing of the property, for the taking, detention, or conversion of which the ac- tion is brought; 5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his cred- itors; 6. When the action is to prevent threatened injury to or destruction of property, in which the party bringing the action has some right, interest, or title, which will be impaired or destroyed by such injury or destruction, and the danger is imminent that such property will be destroyed or its value impaired, to the injury of the plaintiff; 7. On the final judgment or order of any court in this state, while the same remains in force, when the defendant, having no property subject to execution, Ch. CXX1.] CODE PROVIS1UX3. 1621 or not sufficient to satisfy such judg- ment, has money which he ought to ap- ply in payment upon such judgment, which he refuses to apply, with intent to defraud the plaintiff, or when he refuses to comply with a legal order of the court, with intent to defraud the plaintiff; or when any one or more of the causes ex- ist for which an arrest is allowed in the first class of cases mentioned in this sec- tion. m Wisconsin, § 2689. The defendant may be arrested as hereinafter pre- scribed in the following cases: 1. In an action for the recovery of damages on a cause of action not arising out of contract, where the defendant is not a resident of the state, or is about to remove therefrom, or where the action is for an injuiy to person or character, or for seduction, or for criminal conversa- tion, or for injuring, or for wrongfully taking, detaining or converting property, and in actions to recover damages for the value of property obtained by the de- fendant under false pretenses or false tokens. 2. In an action for fine or penalty, or for money received, or for property em- bezzled or fraudulently misapplied by a public officer or by an attorney, solicitor or counsel, or by an officer or agent of a corporation or banking association, in the course of his employment as such, or by any factor, agent, broker or any person in a fiduciary capacity, or for any mis- conduct or neglect in office or in a pro- fessional employment. 3. In an action to recover possession of personal property unjustly detained where the property or any part thereof has been concealed, removed or disposed of so that it cannot be found or taken by the sheriff. But no female shall be arrested in any action except for a wilful injury to per- son, character or property. n Wyoming, § 3959. An order for the arrest of the defendant shall be made by the clerk of the court in which the ac- tion is brought, when there is filed in his office an affidavit of the plaintiff, his au- thorized agent or attorney, made before a judge or clerk of any court of the state, or a justice of the peace, stating the na- ture of the plaintiff's claim, that it is just, and the amount thereof, as nearly as may be, and establishing one or more of the following particulars: 1. That the defendant has removed, or begun to remove, any of his property out of the jurisdiction of the court with in- tent to defraud his creditors. 2. That he has begun to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors. 3. That he has property, or rights of action, which he fraudulently conceals. 4. That he has assigned, removed, dis- posed of, or begun to dispose of, his property, or a part thereof, with intent to defraud his creditors. 5. That he fraudulently contracted the debt, or incurred the obligation, for which suit is about to be or has been brought. 6. That the money, or other valuable thing, for which a recovery is sought in the action, was lost by playing any game, or by means of a bet or wager. The affidavit shall also contain a state- ment of the facts claimed to justify the belief in the existence of one or more of such particulars. Proceedings against bail in civil arrest. California, § 490. If the bail neglect or refuse to pay the judgment within ten days after they are finally charged, an action may be com- menced against such bail for the amount of the original judgment. (Kerr's Gyc. Code Civ. Proc.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Alaska. Ann. Codes 1907, C. C. P. (Carter), §105. b Arkansas, Dig. of Stats. 1904 (Kirby), §327. Idaho, Rev. Codes 1909, §4252. c Kansas, Gen. Stats. 1905 (Dassler), § 5049. Montana, Rev. Codes 1907, § 6607. Nevada. Jurv's PL— 103. 1()22 ARREST AND BAIL. [Tit. XV. Comp. Laws Ann. 1900 (Cutting), §3179. d North Dakota, Rev. Codes 1905, §6901. e Oregon, Ann. Codes and Stats. 1902 (Bel. & Cot), §266. * South Dakota, Rev. Codes 1903, C. C. P. § 168. Utah, Comp. Laws 1907, § 3021. e Washington, Code 1910 (Rem. & Bal.), §761. hWisconsin, Stats. 1898 (San. & Ber. Ann.), § 2710. » Wyoming, Rev. Stats. 1899, § 3978. a Alaska, C. C. P. § 105. In case of the d North Dakota, § 6901, same as Alaska failure to comply with the undertaking, C. C. P. § 105. the bail may be proceeded against by ac- e Oregon, § 266, same as Alaska, C. C. tion 'only. P. § 105. b Arkansas, § 327. The bail can be pro- t South Dakota, C. C. P. § 168, same as ceeded against in a separate action only. Alaska C. C. P. § 105. (Re-enacted Feb. c Kansas, § 5049. The liability of the 26, 1907, Sess. Laws 1907, pp. 165, 180.) bail shall be fixed in the manner pro- g Washington, § 761, substantially same vided in section 165, for fixing the liabil- as Alaska C. C. P. § 105. ity of the sheriff as bail, and the bail can h Wisconsin, § 2710, substantially same be proceeded against in an action only. as Alaska C. C. P. § 105. (Re-enacted Mch. 12, 1909, Laws 1909, p. i Wyoming, § 3978, substantially same 329, C. C. P. § 167.) as Kansas § 5049. §416. REFERENCES TO FORMS. Affidavit to obtain order of arrest, ch. XXIII, form No. 217. Undertaking and security by plaintiff before order of arrest is made, ch. XXIII, form No. 218. Justification of sureties on undertaking, ch. XXIII, form No. 218. Order for arrest, ch. XXIII, form No. 219. Sheriff's return to order of arrest, ch. XXIII, form No. 220. For defense of justification of arrest under civil process in action for false im- prisonment, see ch. XXIII, form No. 210, and exhibits thereto, forms Nos. 211-220. For actions upon bonds and undertakings, see ch. C, forms 822-833. §417. ANNOTATIONS. Constitutionality of provisions. — Provisions of the statute providing for arrest in civil cases are not violative of the constitution: University of California v. Bernard, 57 Cal. 212; Dusy v. Helm, 59 Cal. 18S, 191. Right governed by law of place of action. — The right to arrest a defendant in a civil action is a part of the remedy afforded the plaintiff, and the right exists according to the law of the place where the action is instituted, without any regard to the domicile of the parties, the origin of the right, or the country of the act: Ex parte Howitz, 2 Cal. App. 752, 753, 84 Pac. 229. Issue of fraud essential.— No judgment of imprisonment can be rendered in pro- ceedings for civil arrest, unless the issue of fraud is presented by the pleadings: Matoon v. Eder, 6 Cal. 57, 58, (upon bail bond given by the defendant who had been arrested on mesne process in an action for debt where no fraud was alleged in the complaint) ; Davis v. Robinson, 10 Cal. 411, 412, (for civil arrest on order issued where the affidavit alone charged fraud). It has ever been held that the complaint must charge fraud before mesne process for arrest may be issued: Ex parte Howitz, 2 Cal. App. 752, 757, 84 Pac. 229, (proceeding for civil arrest — affidavit referring to and adopting averments in the complaint). Complaint as aider of affidavit. — Where a copy of a complaint is annexed to the affidavit, and the affiant makes oath that the allegations contained therein are true. Ch. CXXIL] CLAIM AND DELIVERY.— REPLEVIN. 1623 this is held to be In sufficient compliance with the requirements of the law that It must appear from the affidavit that the cause exists: Ex parte Howitz, 2 Cal. App. 752, 756, 84 Pac. 229, (proceedings for civil arrest.) CHAPTER CXXM. Claim and Delivery of Personal Property. — Replevin. Page § 418. Code provisions 1624 § 419. Affidavits, undertakings, etc 1633 Form No. 985. Affidavit for claim and delivery 1633 Form No. 986. Demand directed to the sheriff to take property 1633 Form No. 987. Undertaking for the return to the defendant of property taken in claim and delivery 1633 Form No. 988. Approval of undertaking by sheriff 1634 Form No. 989. Claim of property by third person, and de- mand for return thereof 1634 Form No. 990. Undertaking on behalf of plaintiff, given on claim made by third person to property at- tached 1634 Form No. 991. Undertaking to indemnify sheriff 1635 { 420. Verdicts, judgments, and executions 1635 Form No. 992. Verdict for the plaintiff. (In general.) 1635 Form No. 993. Verdict as to special interest and damages.... 1636 Form No. 994. Alternative judgment for plaintiff in replevin.. 1636 Form No. 995. Judgment for plaintiff in replevin. (In general.) 1637 Form No. 996. Execution in replevin 1637 § 421. Complaints [or petitions] 1638 Form No. 997. For claim and delivery of personal property... 1638 Form No. 998. Goods taken from possession of plaintiff's as- signor 1639 Form No. 999. To recover property severed from realty 1639 Form No. 1000. By married woman, to recover possession of separate personal property or value thereof 1640 J 422. Answers 1641 Form No. 1001. Defense of general denial 1641 Form No. 1002. Defense that title is in another than plaintiff. . 1642 Form No. 1003. Defense that defendant is part owner 1642 Form No. 1004. Defense that defendant is entitled to a lien on goods for storage [or freight] 1642 Form No. 1005. Defense by common carrier, claiming lien for services. — In replevin, by the United States of America, to recover goods and supplies transported 1643 Form No. 1006. Defense of lien for services for manufacturing 16 44 1624 CLAIM AND DELIVERY.— REPLEVIN. [Tit. XV. Form No. 1007. Defense by sheriff. — Justification of taking under attachment 1644 Form No. 1008. Defenses — (1) that foreign corporation plaint- iff has not filed articles or designated resi- dent agent, (2) justification of the taking of outlawed and gambling devices, (3) specific denials of values, etc. — In replevin, by for- eign corporation 1646 § 423. Annotations 1648 §418. CODE PROVISIONS. Claim and delivery — Time of making claim. California, § 509. The plaintiff in an action to recover the posses- sion of personal property may, at the time of issuing the summons, or at any time before answer, claim the delivery of such property to him as provided in this chapter. (Kerr's Cyc. Code Civ. Proc.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Alaska, Ann. Codes 1907, C. C. P. (Carter), §123. b Arizona, Rev. Stats. 1901, fl 3812. c Arkansas, Dig. of Stats. 1904 (Kirby), § 6853. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §4351; Comp. Laws 1909 (Snyder), §5687. n Oregon, Ann. Codes and Stats. 1902 (Bel. & Cot.), §284. o South Dakota, Rev. Codes 1903, C. C. P. § 184. p Texas, Civ. Stats. 1897 (Sayles), Art. 4864. Utah, Comp. Laws 1907, § 3045. i Washington, Code 1910 (Rem. & Bal.), § 707. r Wisconsin, Stats. 1898 (San. & Ber. Ann.), §2717. » Wyoming, Rev. Stats. 1899, § 4145. a Alaska, C. C. P. § 123. In an action tion of judgment in the cause, file his af- to recover possession of personal prop- fidavit, or the affidavit of some other per- erty, the plaintiff, at any time after the son in his behalf, showing: action is commenced, and before judg- 1. That the plaintiff is the owner of ment, may claim the immediate delivery the property claimed, sufficiently de- of such property, as provided in this scribing it, or is lawfully entitled to the chapter. possession thereof. b Arizona, fi 3812. If the plaintiff 2. That it is wrongfully detained by claim in his complaint the possession of the defendant. specific personal property, he may at the 3. The actual value thereof, time of filing his complaint or at any 4. That the same has not been .seized other time afterwards, before the rendl- under any process, execution or attach- Ch. CXXII.] CODE PROVISIONS. 1625 ment against the property of the plain- tiff, or, if so seized, that it is by statute exempt from such seizure. (Amended Mch. 19, 1903, Laws 1903, pp. 157, 160.) c Arkansas, § 6853, substantially same as Alaska C. C. P. § 123, except insert "specific" before "personal property." d Colorado, C. C. P. § 85. The plaint- iff in an action to recover possession of personal property, may at the time of fil- ing the complaint, or issuing the sum- mons, or at any time before judgment, claim the delivery of such property to him, as provided in this chapter. e Hawaii, § 2101, same as Cal. C. C. P. § 509, except in third clause after the word "before" change "answer" to "is- sue being joined in such action." f Iowa, § 4163. An action of replevin may be brought in any county in which the property or some part thereof is sit- uated. The petition must be verified and must state: 1. A particular description of the prop- erty claimed; 2. Its actual value, and, where there are several articles, the actual value of each; 3. The facts constituting the plaintiff's right to the present possession thereof, and the extent of his interest in the property, whether it be full or qualified ownership; 4. That it was neither taken on the or- der or judgment of a court against him, nor under an execution or attachment against him or against the property; but if it was taken by either of these modes, then it must state the facts constituting an exemption from seizure by such proc- ess; 5. The facts constituting the alleged cause of detention thereof, according to his best belief; 6. The amount of damages which the affiant believes the plaintiff ought to re- cover for the detention thereof. g Kansas, § 5058. The plaintiff, in an action to recover the possessien of spe- cific personal property, may, at the com- mencement of the suit, or at any time before answer-day, claim the immediate delivery of such property, as provided in this chapter. (Amended, Mch. 12, 1909, Laws 1909, p. 329, C. C. P. §176.) h Minnesota, § 4204, substantially same as Cal. C. C. P. § 509, except insert "im- mediate" before "delivery" in last clause. i Missouri, § 4463. If the plaintiff claim in his petition the possession of specific personal property, he may, at the time of filing his petition, or at any other time afterwards, before the rendition of judg- ment in the cause, file his affidavit, or the affidavit of some other person in his behalf, showing: First, that the plaintiff is the owner of the property claimed (sufficiently describing it), or is lawfully entitled to the possession thereof; sec- ond, that it is wrongfully detained by the defendant; third, the actual value thereof; fourth, that the same has not been seized under any process, execution or attachment against the property of the plaintiff; and, fifth, that plaintiff will be in danger of losing his said property, unless it be taken out of the possession ot the defendant or otherwise secured. j Nebraska, § 6723, substantially same as Kansas § 5058. k New Mexico, § 26S5, sub-sec. 228. Any person having a right to the immediate possession of any goods or chattels, wrongfully taken or wrongfully detained, may bring an action of replevin for the recovery thereof and for damages sus- tained by reason of the unjust caption or detention thereof. (Laws 1907, p. 280.) 1 North Dakota, § 6917, same as Minne- sota § 4204. m Oklahoma, § 4351, substantially same as Kansas § 5058. n Oregon, § 284, same as Alaska C. C. P. § 123. o South Dakota, C. C. P. § 184, substan- tially same as Minnesota § 4204. (Re- enacted Feb. 26, 1907, Sess. Laws 1907, pp. 165, 183.) p Texas, Art. 4864. Judges and clerks of the district and county courts, and justices of the peace, shall, at the com- mencement or during the progress of any civil suit, before final judgment, have power to issue writs of sequestration, re- turnable to their respective courts, in the following cases: 1. When a married woman sues for di- vorce, and makes oath that she fears her husband will waste her separate prop- erty, or their common property, or the fruits or revenue produced by either, or that he will sell or otherwise dispose of the same so as to defraud her of her just rights, or remove the same out of the limits of the county during the pendency of the suit. 2. When a person sues for the title or possession of any personal property of any description, and makes oath that h« fears the defendant or person in posses- sion thereof will injure, ill-treat, waste or destroy such property, or remove the 1626 CLAIM AND DELIVERY.— REPLEVIN. [Tit. XV. same out of the limits of the county dur- of a lien on real estate, and makes oath ing the pendency of the suit. that he fears the defendant or person in 3. When a person sues for the foreclos- possession thereof will make use of such ure of a mortgage or the enforcement of possession to injure such property, or a lien upon personal property of any de- waste or convert to his own use the tim- scription, and makes oath that he fears ber, rents, fruits or revenue thereof, the defendant or person in possession 7_ "When any person sues to try the thereof will injure, ill-treat, waste or de- tm e t any re al property, or to remove stroy such property, or remove the same cloud upon the title to any such real out of the county during the pendency property, or to foreclose a lien upon any of the suit. such real property, or for a partition of 4. When any person sues for the title rea i property, and makes oath that the or possession of real property, and makes defendant, or either of them in the event oath that he fears the defendant or per- there be more than one defendant, is a son in possession thereof will make use non-resident of this state. of his possession to injure such property, q Washington) § 707( substantially same or waste or convert to his own use the ag Minnesota § 4204 . fruits or revenue produced by the same. . ,, 5. When any person sues for the title r Wisconsin, § 2717, substantially same or possession of any property from which as Minnesota jj 4Z0i. he has been ejected by force or violence, a Wyoming, § 4145. The possession of and makes oath of such fact. specific personal property may be recov- 6. When any person sues for the fore- ered in an action as provided in this closure of a mortgage or the enforcement chapter. Affidavit in claim and delivery. California, § 510. Where a delivery is claimed, an affidavit must be made by the plaintiff, or by some one in his behalf, showing : 1. That the plaintiff is the owner of the property claimed (par- ticularly describing it), or is entitled to the possession thereof; 2. That the property is wrongfully detained by the defendant ; 3. The alleged cause of the detention thereof, according to his best knowledge, information, and belief; 4. That it has not been taken for a tax, assessment, or fine, pur- suant to a statute ; or seized, under an execution or an attachment against the property of the plaintiff; or, if so seized, that it is by statute exempt from such seizure; 5. The actual value of the property. (Kerr's Cyc. Code Civ. Proc.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Alaska, Ann. Codes 1907, C. C. P. (Carter), §124. b Arizona, Rev. Stats. 1901, fl 3812. c Arkansas, Dig. of Stats. 1904 (Kirby), §6854. a Colorado, Rev.' Stats. 1908, C. C. P. §86. e Hawaii, Rev. Laws 1905, §2102. f Idaho, Rev. Codes 1909, § 4272. g Iowa, Ann. Code 1897, § 4163. h Kansas, Gen. Stats. 1905 (Dassler), § 5059. « Minnesota, Rev. Laws 1905, § 4205. i Missouri, Ann. Stats. 1906, § 4463. k Montana, Rev. Codes 1907, § 6623. I Nebraska, Comp. Stats. Ann.' 1909, §6724; Ann. Stats. 1909 (Cobbey), §1153. Nevada, Comp. Laws Ann. 1900 (Cutting), §3195. m New Mexico, Comp. Laws 1897, §2685, Ch. CXXII.] CODE PROVISIONS. 1627 sub-sec. 232. n North Dakota, Rev. Codes 1905, § 6918. o Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §4352; Comp. Laws 1909 (Snyder), §5688. p Oregon, Ann. Codes and Stats. 1902 (Bel. & Cot.), §285. q South Dakota, Rev. Codes 1903, C. C. P. § 185. r Texas, Civ. Stats. 1897 (Sayles), Art. 4865. ■ Utah, Comp. Laws 1907, §3046. t Washington, Code 1910 (Rem. & Bal.), §708. u Wisconsin, Stats. 1898 (San. & Ber. Ann.), §2718. 'Wyoming, Rev. Stats. 1899, § 4146. a Alaska, C. C. P. § 124, same as Cal. C. C. r. § 510, except at the end of sub. 1 add "by virtue of a special property therein, the facts in respect to which shall be set forth." b Arizona, H 3812, see note b to Cal. C. C. P. § 509. c Arkansas, § 6854. An order for the delivery of property to the plaintiff shall be made by the clerk when there is filed in his office an affidavit of the plaintiff, or of some one in his behalf, showing: First. A particular description of the property claimed. Second. Its actual value, and the dam- ages which the affiant believes the plaintiff ought to recover for the deten- tion thereof. Third. That the plaintiff is the owner of the property, or has a special owner- ship or interest therein, stating the facts in relation thereto, and that he is enti- tled to the immediate possession of the property. Fourth. That the property is wrong- fully detained by the defendant, with the alleged cause of the detention thereof, according to the best knowledge, infor- mation and belief of the affiant. Fifth. That it has not been taken for a tax or fine against the plaintiff, or un- der any order or judgment of a court against him, or seized under an execu- tion or attachment against his property, or, if so seized, that it is by statute ex- empt from such seizure. Sixth. That the plaintiff's cause of ac- tion has accrued within three years; and where the action is brought to recover property taken under an execution, the affidavit must state the fact of the tak- ing, and the nature of the process under which it was done. d Colorado, C. C. P. § 86, substantially same as Cal. C. C. P. § 510, except omit sub. 3 of Cal. statute and renumber subs. 4 and 5 to subs. 3 and 4 respectively, and at the end of the last subdivision of the Colorado statute add "which affidavit shall be filed with the clerk of the court." • Hawaii, § 2102, substantially same a3 Cal. C. C. P. § 510, except omit sub. 3 and renumber subs. 4 and 5 accordingly. f Idaho, § 4272, same as Cal. C. C. P. § 510, except at end of the opening pas- sage change "showing" to "setting forth." g Iowa, § 4163, see note t to Cal. C. C. P. § 509. h Kansas, § 5059. An order for the de- livery of property to the plaintiff shall be made by the clerk of the court in which the action is brought, when there is tiled in his office an affidavit of the plaintiff, his agent or attorney, showing: First, A description of the property claimed. Second, That the plaintiff is the owner of the property, or has a special owner- ship or interest therein, stating the facts in relation thereto, and that he is enti- tled to the immediate possession of the property. Third, That the property is wrongfully detained by the defendant. Fourth, That it was not taken in exe- cution on any order or judgment against said plaintiff, or for the payment of any tax, fine or amercement assessed against him, or by virtue of an order of delivery issued under this article, or any other mesne or final process issued against said plaintiff. Fifth, If taken in execution, or on any order or judgment against the plaintiff, that it is exempt by law from being so taken. Sixth, The actual value of the prop- erty. When several articles are claimed, the value of each shall be stated as nearly as practicable. (Amended, Mch. 12, 1909, Laws 1909, p. 329, C. C. P. § 177.) i Minnesota, §4205. An affidavit shall be made by the plaintiff or some person in his behalf, showing: 1. The particular property claimed, and that plaintiff is the owner thoreof, or is lawfully entitled to its possesvion by vir- tue of a special property /herein, the facts respecting which shall be set forth; 1628 CLAIM AND DELIVERY.— REPLEVIN. [Tit. XV. 2. That the property is wrongfully de- tained by the defendant; 3. That the same was not taken for a tax, assessment, or fine, nor seized un- der an execution or attachment against plaintiff's property; or, if so seized, that it is by statute exempt from such seiz- ure; and 4. The actual value of the property. ] Missouri, § 4463, see note l to Cal. C. C. P. § 509. k Montana, § 6623, substantially same as Cal. C. C. P. § 510, except at end of opening passage change "showing" to "stating"; also omit sub. 3 of Cal. stat- ute and renumber subs. 4 and 5 accord- ingly. l Nebraska, § 6724. [Same as Kansas § 5059, to include sub. 4, omit rest of Kansas and add:] "Provided, That such affidavit may omit the first and last clause of this sub- division and in lieu thereof, show that the property was taken in execution on a judgment or order, other than an order of delivery in replevin, and that the same is exempt from such execution or attachment under the laws of this state; and provided further, that the provisions of this act shall extend to and apply as well to proceedings in replevin had be- fore justices of the peace." m New Mexico, § 2685, sub-sec. 232. Be- fore the writ of replevin shall be issued, the plaintiff, or some creditable person in his stead, shall file in the office of the clerk of the district court an affidavit al- leging that the plaintiff is lawfully enti- tled to the possession of the property mentioned in the complaint, that the same was wrongfully taken, or wrong- fully detained by the defendant, and that the right of action accrued within one year. Laws 1907, p. 2S1. n North Dakota, § 6918, substantially same as Alaska C. C. P. § 124, except at end of opening passage change "show- ing" to "stating." o Oklahoma, § 4352, same as Kansas S 5059. p Oregon, § 285, same as Alaska C. C. P. § 124. q South Dakota, C. C. P. § 185, same as North Dakota § 6918. (Re-enacted Feb. 26, 1907, Sess. Laws 1907, pp. 165, 1S3.) r Texas, Art. 4865. No sequestration shall issue in any cause until the party applying therefor shall file an affidavit in writing stating — 1. That he is the owner of the prop- erty sued for or some interest therein, specifying such interest, and is entitled to the possession thereof; or, 2. If the suit be to foreclose a mort- gage or enforce a lien upon the property, the fact of the existence of such mort- gage or lien, and that the same is just and unsatisfied, and the amount of the same still unsatisfied, and the date when due. 3. The property to be sequestered shall be described with such certainty that it may be identified and distinguished from property of a like kind, giving the value of each article of the property and the county in which the same is situated. 4. It shall set forth one or more of the causes named in the preceding article entitling him to the writ. s Utah, § 3046. Where a delivery is claimed, an affidavit must be made by the plaintiff, or by some one on his be- half, showing: 1. A description of the property claimed; 2. That the plaintiff is the owner of the property claimed or has a special ownership or interest therein, stating the facts in relation thereto, and that he is entitled to the possession thereof; 3. That the property is wrongfully de- tained by the defendant; 4. The alleged cause of the detention thereof, according to his best knowledge, information, and belief; 5. That it has not been taken for a tax, assessment, or fine, pursuant to a statute, or seized under an execution or an attachment against the property of the plaintiff; or if so seized, that it is by statute exempt from such seizure; and, 6. The actual value of the property. t Washington, § 708, same as Alaska C. C. P. § 124, except omit sub. 3 and re- number 4 and 5 accordingly. u Wisconsin, § 2718, same as Alaska C. C. P. § 124. v Wyoming, § 4146. An order for the delivery of property to the plaintiff shall be issued by the clerk of the court in which the action is brought when there is filed in the office an affidavit of the plaintiff, his agent or attorney, showing: 1. A description of the property claimed. 2. That the plaintiff is the owner of the property, or has Epecial interest therein, and if the ownership or Interest is special or partial, the fact shall b# stated. Ch. CXXIL] CODE PROVISIONS. 1629 3. That the property Is wrongfully de- pressly or upon demand or selection by tained by the defendant. the plaintiff, and la not held for a tax, 4. That it was not taken upon any or if held for a tax, that it is not held process issued against the plaintiff, or if for any tax legally assessed or levied taken under such process that the prop- against the plaintiff. erty was exempt from execution ex- Judgment in replevin. California, § 667. In an action to recover the possession of per- sonal property, judgment for the plaintiff may be for the possession or the value thereof, in case a delivery cannot be had, and damages for the detention. If the property has been delivered to the plaintiff, and the defend- ant claim a return thereof, judgment for the defendant may be for a return of the property or the value thereof, in case a return cannot be had, and damages for taking and withholding the same. In an action on a contract or obligation in writing, for the direct payment of money, made payable in a specified kind of money or cur- rency, judgment for the plaintiff, whether it be by default or after verdict, may follow the contract or obligation, and be made payable in the kind of money or currency specified therein; and in all ac- tions for the recovery of money, if the plaintiff allege in his com- plaint that the same was understood and agreed by the respective parties to be payable in a specified kind of money or currency, and this fact is admitted by the default of the defendant or established by evidence, the judgment for the plaintiff must be made payable in the kind of money or currency so alleged in the complaint; and in an action against any person for the recovery of money received by such person in a fiduciary capacity, or to the use of another, judg- ment for the plaintiff must be made payable in the kind of money or currency so received by such person. (Kerr's Cyc. Code Civ. Proc.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference Is made in a lettered note succeeding and the difference there shown: a Alaska, Ann. Codes 1907, C. C. P. (Carter), §253. b Arizona, Rev. Stats. 1901, H1I 3821, 3823, 3824. c Arkansas, Dig. of Stats. 1904 (Kirby), §6868. a Colorado, Rev. Stats. 1908, C. C. P. §246. Idaho, Rev. Codes 1909, §4453. • Iowa, Ann. Code 1897, §4176. f Kansas, Gen. Stats. 1905 (Dassler), §5067. g Minnesota, Rev. Laws 1905, §4267. h Missouri, Ann. Stats. 1906, §§4473- 4476. i Montana, Rev. Codes 1907, § 6803. i Nebraska, Comp. Stats. Ann. 1909, §§6734-6736; Ann. Stats. 1909 (Cobbey), §§1163-1165. * Nevada, Comp. Laws Ann. 1900 (Cutting), § 3297. i New Mexico, Comp. Laws 1897, §2685, 1630 CLAIM AND DELIVERY.— REPLEVIN. [Tit. XV. sub-sec. 239. m North Dakota, Rev. Codes 1905, § 7075. n Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §4360; Comp. Laws 1909 (Snyder), §5696. o Oregon, Ann. Codes and Stats. 1902 (Bel. & Cot), §198. p South Dakota, Rev. Codes 1903, C. C. P. §313. i Texas, Civ. Stats. 1897 (Sayles), Art. 1335. Utah, Comp. Laws 1907, §3194. r Washington, Code 1910 (Rem. & Bal.), §434. s Wisconsin, Stats. 1898 (San. & Ber. Ann.), §2888. t Wyoming, Rev. Stats. 1899, §§ 4155-4158. a Alaska, C. C. P. § 253, same as first two paragraphs of Cal. C. C. P. § 667. bi Arizona, fl 3821. If the defendant in his answer alleges that he is the owner of the property, is entitled to its possession and demands its return, and if on the trial of the case it shall be found that he is its owner, that he was at the time the suit was brought entitled to its possession, then in such trial the value of the property replevied shall be found by the jury, if tried by a jury, and by the court, if tried by the court, together with any damage the defendant may have suf- fered for the wrongful replevying of the property, then the judgment shall be against the plaintiff and the sureties on the replevin bond for the assessed value of the property, the assessed damages, and for the costs of the suit; and if it shall appear in the trial of the case that plaintiff is in the possession of the prop- erty, or that it is under his control, then the judgment shall also be for its return to the defendant at a time and place to be specified in the judgment. b2 Arizona, fl 3823. If, at the time of the trial of the case, the plaintiff shall not be in the possession of the property, or the same shall not be under his con- trol, then the above alternative judgment shall not be given, but only the judg- ment for the value of the property, the damages suffered by its replevin and the costs of the suit. In every such case the judgment shall be against the plaintiff and the sureties on his replevin bond. b3 Arizona, fl 3824. If the judgment shall be against the defendant, and at the time thereof he be in the possession of the property by reason of a forthcom- ing bond given by him whereby he re- tained the possession of the property, the judgment shall be against the defendant and the sureties on his bond for the as- sessed value of the property, the as- sessed damages for its detention and the costs of suit; and also for the return of the property to the plaintiff, at a time and place to be therein named, and upon the same terms and conditions the plaint- iff shall be given the same election as is provided above shall be given to the de- fendant. c Arkansas, § 6868, same as Alaska C. C. P. § 253. d Colorado, C. C. P. § 246, same as Alaska C. C. P. § 253. e Iowa, § 4176. The judgment shall de- termine which party is entitled to the possession of the property, and shall des- ignate his rights therein, and if such party have not the possession Lhereof, shall also determine the value of the right of such party, which right shall be absolute as to an adverse party, and shall also award such damages to either party as he may be entitled to for the illegal detention thereof. If the judg- ment be against the plaintiff for the money value of the property, it shall also be against the sureties on his bond. t Kansas, § 5067, substantially same as first two paragraphs of Cal. C. C. P. § 667, except in line 3, after "possession" in- sert "or for the recovery of the posses- sion," before "or the value thereof." (Amended Mch. 12, 1909, Laws 1909, p. 329, C. C. P. § 185.) g Minnesota, § 4267. In an action to recover the possession of personal prop- erty, judgment may be rendered for the plaintiff and for the defendant, or for either. Judgment for either, if the prop- erty has not been delivered to him, and a return is claimed in the complaint or answer, may be for the possession, or for the value thereof in case possession can not be ootained, and damages for the de- tention, or the taking and withholding thereof. When the prevailing party is in possession of the property, the value thereof shall not be included in the judg- ment. If the property has been delivered to the plaintiff, and the action be dis- missed before answer, or if the answer so claim, the defendant shall have judg- ment for a return, and damages, if any, for the detention, or the taking and withholding, of such property; but such judgment shall not be a bar to another Ch. CXXII.] CODE PROVISIONS. 16J1 action for the same property or any part thereof. hi Missouri, § 4473. If the plaintiff fail to prosecute his action with effect and without delay, and shall have the prop- erty in his possession, and the defend- ant in his answer claims the same and demands a return thereof, the court or a Jury may assess the value of the prop- erty taken, and the damages for taking and detaining the same, for the time such property was taken or detained from defendant until the day of the trial of the cause. h2 Missouri, § 4474. In such case, the judgment shall be against the plaintiff and his sureties, that he return the prop- erty taken, or pay the value so assessed, at the election of the defendant, and also, pay the damages assessed for the taking and detention of the property and costs of suit. h3 Missouri, § 4475. If the plaintiff have not the property in possession, damages shall be assessed as directed in section 4473 of this chapter, for the tak- ing or detention, or both, as the case may be, of the property; and judgment shall be rendered against the plaintiff and his sureties for the damages, if any, and for costs of suit. h4 Missouri, § 4476. If the defendant fail in his defense, and have the prop- erty in possession, the court or jury shall assess the value of the property, and the damages for all injuries to the property, and for the taking and detention, or de- tention, of the same; and the judgment shall be against the defendant and his sureties, that he return the property or pay the value so assessed, at the election of the plaintiff, and, also, pay the dam- ages so assessed and costs of suit. If the defendant have not the property in pos- session, the court or jury shall assess the damages, and the judgment shall be against the defendant and his sureties for the damages so assessed and costs of suit; and, in all cases, the property 6hall be presumed to be with the party who should have it, until the contrary be shown. I Montana, § 6S03, same as Alaska C. C. P. | 253. Ji Nebraska, § 6734. The judgment in the cases mentioned in sections one hun- dred and ninety, and one hundred and ninety-one, and in section one thousand and forty-one of said code, shall be for a return of the property or the value thereof in case a return cannot be had, or the value of the possession of the same, and for damages for withholding said property, and costs of suit. J2 Nebraska, § 6735. In all cases, when the property has been delivered to the plaintiff, where the jury shall find for the plaintiff, on an issue joined, or on in- quiry of damages upon a judgment by default, they shall assess adequate dam- ages to the plaintiff for the illegal deten- tion of the property; for which, with costs of suit, the court shall render judg- ment for defendant [plaintiff]. J3 Nebraska, § 6736. When the prop- erty claimed has not been taken, or has been returned to the defendant by the sheriff for want of undertaking required by section one hundred and eighty-six, the action may proceed as one for dam- ages only, and the plaintiff shall be en- titled to such damages as are right and proper; but if the property be returned for want of the undertaking required by section one hundred and eighty-six, the plaintiff shall pay all costs made by tak- ing the same. k Nevada, § 3297, substantially same as Cal. C. C. P. § 667, except in third para- graph, omit entirely the second clause or sentence commencing "and in all ac- tions for the recovery of money," down to and including the words "so alleged in the complaint"; also add at the end of the section the words "and in all cases of damage the judgment shall be for gold coin." 1 New Mexico, § 2685, sub-sec. 239. In case the plaintiff fails to prosecute his suit with effect and without delay judg- ment shall be given for the defendant and shall be entered against the plaintiff and his securities for the value of the property taken, and double damages for the use of the same from the time of de- livery, and it shall be in the option of the defendant to take back such property or the assessed value thereof. (Laws 1907, p. 282.) m North Dakota, g 7075, substantially same as first two paragraphs of Cal. C. C. P. § 667, except after the word "pos- session" in the second line insert, "or for the recovery of possession." n Oklahoma, § 4360, substantially same as North Dakota s 7075. o Oregon, § 19S, substantially same as Alaska C. C. P. § 2j3 p South Dakota, C. C. P. § 313, sub- stantially same as North Dakota i 7075. 1632 CLAIM AND DELIVERY.— REPLEVIN. [Tit. XV. q Texas, Art. 1335. The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all relief to which he may be entitled either in law or equity. r Washington, § 434, substantially same as Alaska C. C. P. § 253. s Wisconsin, § 28S8. In any action of replevin judgment for the plaintiff may be for the possession or for the recovery of possession of the property, or the value thereof in case a delivery cannot be had, and of damages for the deten- tion; and when the property shall have been delivered to the deiendant, under section 2722, judgment may be as afore- said or absolutely for the value thereof, and damages for the detention at the plaintiff's option. If the property have been delivered to the plaintiff and a de- fendant claim a return thereof judgment for the defendant may be for a return of the property or the value thereof, in case a return cannot be had, and damages for taking and withholding the same. ti Wyoming, § 4155. When judgment is rendered against the plaintiff on de- murrer, or he fails to prosecute his ac- tion to final judgment, the court shall, on application of the defendant, assess to defendant proper damages, including damages for the right of property or possession, or both, if he prove himself entitled thereto, or cause the same to be done by a jury, for which, with costs of suit, the court shall render judgment for the defendant. t2 Wyoming, § 4156. When the prop- erty is delivered to the plaintiff, or re- mains in the hands of the sheriff, as provided in section four thousand one hundred and fifty-one, if the jury, upon issue joined, find for the plaintiff, and upon inquiry of damages upon a default, they shall assess adequate damages to the plaintiff for the illegal detention of the property, for which, with costs of suit, the court shall render judgment for the plaintiff. t3 Wyoming, § 4157. When the prop- erty is delivered to the plaintiff, or re- mains in the hands of the sheriff, as provided in section four thousand one hundred and fifty-one, if the jury upon issue joined, find for the defendant, they shall also find whether the defendant had the right of property or the right of possession only, at the commence- ment of the suit; and if they find either in his favor, they shall assess to him such damages as they think right and proper, for which, with costs of suit, the court shall render judgment for the de- fendant against the plaintiff and his sureties. t4 Wyoming, § 4158. When the prop- erty claimed is not taken, or is re- turned to the defendant by the sheriff for the want of the undertaking re- quired by section four thousand one hun- dred and fifty, the action may proceed as one for damages only, and the plaint- iff shall be entitled to such damages as are right and proper, but if the prop- erty be returned for want of the under- taking, the plaintiff shall pay all costs made by taking the same. Compelling delivery of specific personal property. California, § 3380. Any person having the possession or control of a particular article of personal property, of which he is not the owner, may be compelled specifically to deliver it to the person entitled to its immediate possession. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6095. North Dakota, Rev. Codes 1905, § 6608. South Dakota, Rev. Codes 1903, C. C. § 2338. Ch. CXXIL] AFFIDAVITS, UNDERTAKINGS, ETC.— FORMS. IGLlij §419. AFFIDAVITS, UNDERTAKINGS, ETC. FORM No. 985 — Affidavit for claim and delivery. [Title of court and cause.] [Venue.] , being duly sworn, deposes and says: That he is the plaintiff in this action; that he is the owner of and entitled to the possession of the following-described goods and chattels, namely : [Here describe the same], and which goods and chattels are of the actual value of $ ; that said goods and chattels are wrong- fully detained by the defendant from the plaintiff; that the alleged cause of said detention thereof, according to affiant's best knowl- edge, information, and belief, is [here state the alleged cause of detention] ; that said property has not been taken for any tax, assessment, or fine, pursuant to any statute, or seized under an execution or an attachment against the property of the plaintiff. [Or, if seized, and said property is exempt by statute, so state.] [Signature.] [Jurat] FORM No. 986 — Demand directed to the sheriff to take property. To the sheriff of the county of : I hereby demand that you take from the defendant herein the personal property mentioned and described in the foregoing affi- davit. A. B., Attorney for plaintiff. [Date.] FORM No. 987 — Undertaking for the return to the defendant of property taken in claim and delivery. [Title of court and cause.] The property which is described in the affidavit of the plaintiff in this action as [describe the property as in such affidavit], having been taken from said defendant by the sheriff of the count}' of , in this state, and said defendant having demanded and required the return of said property to him: Now, therefore, in consideration of the premises, and to procure the return of said property to said defendant, we, the undersigned, and , undertake to the effect that we are bound to , the plaintiff in the action, in the sum of $ , being double the actual value of the property as stated in the affidavit of 1G 34 CLAIM AND DELIVERY.— REPLEVIN. [Tit. XV. plaintiff, and we promise plaintiff that if delivery thereof be adjudged, the defendant will deliver said property to said plaintiff, and will pay to plaintiff such sum, damages or charges, as may for any cause be recovered against the defendant in said action. [Date.] [Signatures.] FORM No. 988— Approval of undertaking by sheriff. I hereby approve the within undertaking, both as to the suffi- ciency of the amount and as to the sureties who executed the same. [Date.] [Sheriff's signature.] FORM No. 989 — Claim of property by third person, and demand for return thereof. [Title of court and cause.] [Venue.] , being duly sworn, says: That he is the owner [or he has the right to the possession] of the following-described property, to wit : [Here describe] ; that said property has been taken posses- sion of by you as sheriff, under a writ of attachment as such in the above-entitled action; that said ownership [or right of possession] is founded on the grounds, to wit, that [here state the grounds of said ownership, or right of possession] ; that affiant claims said property on said grounds, and demands the immediate return of the same and all thereof. [Jurat.] [Signature.] FORM No. 990 — Undertaking on behalf of plaintiff, given on claim made by third person to property attached. [Title of court and cause.] The plaintiff in this action having claimed possession of the fol- lowing property: [Here describe the same] ; and the plaintiff, by proceedings in this action, having caused , the sheriff of the county of , in this state, to take the said property from the possession of the defendant; and one having presented and served his verified claim, wherein said claimant sets forth his alleged title to said property and the grounds thereof, and claims the right of possession of such property thereunder, and said claimant, having demanded that he be indemnified against said claim of said : Cli. CXXIL] VERDICTS, JUDGMENTS, ETC.— FORMS. 1635 Now, therefore, we, and , in consideration of the premises, and to indemnify , said sheriff, from any and all loss by reason of said claim, do hereby undertake in the sum of $ , and promise , said sheriff, that , the plaintiff in said action, will indemnify , said sheriff, against said claim, and against all loss and damage he may sustain by reason thereof ; and if said plaintiff fail to do so, we will pay to said all loss and damage he may sustain by reason of such claim, not exceeding said sum of $ [Date.] [Signatures.] FORM No. 991 — Undertaking to indemnify sheriff. [Title of court and cause.] , as the sheriff of the county of , in this state, being about to attach the property of the defendant in this action by virtue of a writ of attachment issued therein : Now, therefore, in consideration of the premises, and for the pur- pose of giving security and to prevent the levy of such attachment, we, and , hereby undertake and promise the plaintiff in this action, and are bound to him in the sum of $ , being an amount sufficient to satisfy plaintiff's demands, besides costs, or an amount equal to the value of the property about to be attached, that the defendant will satisfy any judgment which the plaintiff may recover against him in this action. [Date.] [Signatures.] §420. VERDICTS, JUDGMENTS, AND EXECUTIONS. FORM No. 992 — Verdict for the plaintiff. (In general.) [Title of court and cause.] We, the jury in the above-entitled action, find for the plaintiff: That he is the owner, and entitled to the immediate possession, of the property described in the complaint [or petition] herein, and we assess the value of said property at $ , and the plaintiff's dam- age, by reason of the detention and withholding thereof, at the sum of $ [Date.] X. Y., Foreman. KJ36 CLAIM AND DELIVERY.— REPLEVIN. [Tit. XV. FORM No. 993 — Verdict as to special interest and damages. [Title of court and cause.] We, the jury in the above-entitled action, find for the plaintiff: That he is the owner of a special interest in the property described in the complaint [or petition] herein, to wit, [here state] ; that the value of said entire property is $ , and that the value of said special interest of plaintiff therein is $ ; that the plaintiff is entitled to the immediate possession of said property, by virtue of his said special interest therein, and that, subject to such special inter- est, defendant is the general owner of said property. We further- more find and assess the plaintiff's damages, by reason of the taking and withholding of said property, at the sum of $ [Date.] X. Y., Foreman. FORM No. 994 — Alternative judgment for plaintiff in replevin. [Title of court and cause.] This action having been tried before the court and a jury [or without a jury, trial by jury having been expressly waived], and the court [or the jury] having found for the plaintiff, that he is the owner, and entitled to the immediate possession, of the property described in the complaint [or petition] herein, and the court [or jury] having assessed the value of said property at the sum of $ , and it appearing from the return of the sheriff herein and from the undertaking filed herein on the part of the defendant that said prop- erty was delivered to the defendant, and that and are defendant's sureties who signed said undertaking in the sum of $ , pursuant to the statute, said sureties being bound as therein required for the delivery of said property to the plaintiff, if such delivery be adjudged, and for the payment of such sum to the plaint- iff as might for any cause be recovered against the defendant ; [And the plaintiff having in open court elected to take judgment for the recovery of the possession of said property, or the value thereof in case a delivery can not be had] : Now, on motion of A. B., attorney for the plaintiff, — It is ordered and adjudged, that C. D., the plaintiff, do have and recover of E. F., the defendant, and and , said sureties, the possession of the property described in the complaint [or peti- tion], as follows: [Here describe said property], together with $ , plaintiff's damages, assessed as aforesaid, for such deten- Ch. CXXII.] JUDGMENTS, EXECUTIONS, ETC.— FORMS. 1637 tion; and in case a delivery of said property can not be had, then that plaintiff do have and recover of defendant and his said sureties the sum of $ , the value of said property, in addition to his said damages, together with the sum of $ , taxed as costs of this action. [Date.] By the court. M. N., Clerk. FORM No. 995 — Judgment for plaintiff fn replevin. (In general.) [Title of court and cause.] [After preliminary recitals as in the preceding form:] It is ordered and adjudged, that C. D., plaintiff, do have and recover of E. F., defendant, and and , his said sureties upon said undertaking, the sum of $ , the value of said prop- erty, and the further sum of $ , as plaintiff's damages, assessed as aforesaid, for the detention thereof, together with the further sum of $ , taxed and allowed as costs herein, making in all the sum of $ [Date.] By the court. M. N., Clerk. FORM No. 996 — Execution in replevin. The people of the state of , to the sheriff [or other officer, designating his official capacity] of the county of : Whereas, a judgment was rendered on the day of 19 , in the court, in an action in said court wherein was plaintiff and was defendant, in favor of the defendant and against the plaintiff, for the sum of $ , damages and costs and for the further sum of $ ; and if the latter sum is not collected, for the delivery by the plaintiff to the defendant of the following-described personal property, to wit: [Particularly de- scribe the same; or state as follows: "And that he is entitled to the possession of the following-described personal property, to wit: (Particularly describing the same), until the said sum of $ is collected and paid"] ; and Whereas, the judgment-roll upon said judgment was filed in the clerk's office of the county of on the day last aforesaid, [and a transcript of said judgment was duly filed,] and said judgment Jury's PI.— 104. 1638 CLAIM AND DELIVERY.— REPLEVIN. [Tit. XV. was duly docketed in the office of the clerk of your county on the day of , 19 ; and Whereas, there is now actually due upon said judgment the sum of $ , damages and costs, as aforesaid, with interest thereon from the day of , 19 , and the further sum of $ „ with interest thereon from the day of , 19 : Now, therefore, you are hereby required to deliver possession of the said personal property to the defendant, unless the plaintiff, before the delivery, pays to you the said sum of $ , with interest as aforesaid, and your fees; and in case the said personal property can not be found within your county, then to satisfy that sum out of any personal property belonging to the plaintiff; and if sufficient personal property belonging to the plaintiff can not be found, then out of the real property belonging to him at the time when said judgment was docketed in the clerk's office of the county of , or at any time thereafter. And you are further required to satisfy the said sum of $ , damages and costs as aforesaid, out of the personal property of the said judgment debtors, or either of them; and if sufficient personal property can not be found, out of the real property belonging to them [or either of them] at the time when said judgment was dock- eted in the clerk's office of the county of , or at any time thereafter; and to return this execution to the clerk of the county of within [sixty] days after the receipt hereof. "Witness [etc.]. §421. COMPLAINTS [OR PETITIONS]. FORM No. 997 — For claim and delivery of personal property. [Title of court and cause.] , the plaintiff in the above-entitled action, complaining of the defendant in said action, alleges: 1. That on the day of ,19 , at the county of , plaintiff was the owner and in the possession of the following goods and chattels, of the value of $ , to wit: [Here describe said goods and chattels with sufficient certainty to enable the officer levying thereon to accurately identify the same.] 2. That the defendant, on the day of , 19 , at the county of . without the consent of said , plaintiff, wrong- Ch. CXXIL] COMPLAINTS [OR PETITIONS].— FORMS. 1639 fully took said goods and chattels from the possession of the plaintiff. 3. That before the commencement of this action, to wit, on the day of , 19 , the plaintiff demanded of the defendant possession of said goods and chattels; but to deliver the possession thereof the defendant refused. 4. That defendant still unlawfully withholds and detains said goods and chattels from the possession of the plaintiff, to his damage in the sum of $ Wherefore, the plaintiff demands judgment against the defendant for the recovery of the possession of said goods and chattels, or for the sum of $ , the value thereof, in case a delivery can not be had, together with $ damages and costs of suit. ,.„.„,., A. B., Attorney for plaintiff. [Verification.] FORM No. 998 — Goods taken from possession of plaintiff's assignor. [Title of court and cause.] Plaintiff complains of defendant, and for cause of action alleges: 1. That at the time first hereinafter mentioned, one C. D. owned and was lawfully in the possession of [describe property], of the value of $ , and that on the day of , 19 , the defendant wrongfully took said goods from the possession of the said C. D., and has ever since detained the same. 2. That on the day of , 19 , the said C. D. assigned and set over to the plaintiff the said goods, and also his claim for damages for said taking and detention, and by reason of the prem- ises the plaintiff has sustained damage in the sum of $ [Concluding part.] FORM No. 999 — To recover property severed from realty. (In Houghton Co. v. Kennedy, 8 Cal. App. 777; 97 Pac. 905.) [Title of court and cause.] Plaintiff complains of defendants, and for cause of action alleges: 1, 2. [Averments as to incorporation of plaintiff company, and as to certain of defendants sued under fictitious names.] 3. That on the 25th day of August, 1905, and for more than three months prior thereto, at and in the county of Fresno, state of Cali- fornia, plaintiff was, ever since has been, and now is the owner and entitled to the possession of the following-described property, to 1640 CLAIM AND DELIVERY.— REPLEVIN. [Tit. XV. wit: One steam-engine and one bunkhouse, 15 by 20 feet in size, a little more or less, all on said date situated upon block 8 in the town of Rolinda, said personal property being, prior to the severance herein complained of, appurtenant to said lands and a part and parcel thereof. 4. That said steam-engine is, and then was, of the value of $600, and said bunkhouse is, and then was, of the value of $100. 5. That the defendants herein, on or about the 25th day of August, 1905, at and in said county, without plaintiff's consent, and wrongfully and unlawfully, entered upon the premises above described, so belonging to plaintiff, and forcibly and wrongfully broke into the building in which said steam-engine was located, and removed said steam-engine from said premises, and at the same time did wrongfully and unlawfully enter upon said premises and seize and take said bunkhouse and remove the same therefrom. 6. That the defendants ever since said date have wrongfully and unlawfully withheld and detained, and now wrongfully withhold and detain, said property from the possession of plaintiff, to its damage in the sum of $300. 7. That the said property has not been taken for any tax, assess- ment, or fine pursuant to any statute, or seized under an execution or an attachment against the property of the plaintiff. Wherefore, plaintiff prays judgment against the defendants for the recovery of the possession of said personal property, or for the sum of $700, the value thereof in case a delivery can not be had, together with $300 damages, and for its costs of suit; further, that said property be taken from said defendants by the sheriff of said county in claim and delivery, and held in accordance with the law in such cases made and provided, and that it may have such other and further relief as to the court may seem proper in the premises. F. E. Cook, [Verification.] Attorney for plaintiff. FORM No. 1000 — By married woman, to recover possession of separate per- sonal property or the value thereof. (In Richey v. Haley, 138 Cal. 441; 71 Pac. 499.) [Title of court and cause.] The plaintiff complains of the defendant, and for cause of action alleges : Ch CXXIL] ANSWERS.— FORMS. 1G41 1. That plaintiff is a married woman, and the wife of Charles S. Richey, and that the property herein sued for and hereinafter described is the sole and separate property of the plaintiff. 2. That on the 12th day of November, 1897, in the county of Santa Clara, plaintiff was the owner and in the actual possession of the following goods and chattels, to wit: [Here follows a descrip- tion of said property] ; that said goods and chattels were at said time, and ever since have been, of the value of $420. 3. That the defendant, on the 12th day of November, 1897, in the said county of Santa Clara, without the consent of plaintiff, wrong- fully took said goods and chattels from the possession of the plaintiff. 4. That before the commencement of this action, to wit, on the 13th day of November, 1897, and again on the 2d day of December, 1897, the plaintiff demanded of the defendant possession of said goods and chattels, but to deliver the possession thereof the defend- ant refused. 5. That defendant still unlawfully withholds and detains said goods and chattels from the possession of the plaintiff, to her dam- age, by reason of said withholding and detention, in the sum of $200. [Concluding part.] §422. ANSWERS. FORM No. 1001 — Defense of general denial. [Title of court and cause.] The defendant answering the complaint [or petition] of the plaintiff, denies: 1. That the plaintiff was ever in possession or entitled to the possession of the goods and chattels in the complaint [or petition] described, or any thereof. 2. That the said goods and chattels, or any of them, are or ever were the property of the plaintiff. 3. That said goods and chattels are or were at the time alleged, or at any time since, of the value of $ , or any amount greater than $ [Concluding part.] 1642 CLAIM AND DELIVERY.— REPLEVIN. [Tit. XV FORM No. 1002 — Defense that title is in another than the plaintiff. [Title of court and cause.] The defendant answering the plaintiff's complaint [or petition], alleges : That the property therein described was at the time therein men- tioned, and still is, the property of one C. D., and not the property of the plaintiff. [Concluding part.] FORM No. 1003 — Defense that defendant is part owner. [Title of court and cause.] The defendant answering the plaintiff's complaint [or petition], alleges : That at the several times therein mentioned, the defendant was, and still is, the owner of one undivided half of said goods and chat- tels, and that the whole of the same then were rightfully in the possession of the defendant. [Concluding part.] FORM No. 1004 — Defense that defendant is entitled to a lien on goods Tor storage [or freight]. [Title of court and cause.] The defendant answering the plaintiff's complaint [or petition], alleges : 1. That on the day of , 19 , the plaintiff deposited the goods mentioned in the complaint [or petition] with the defend- ant for storage [or for carriage], agreeing to pay for the said storage [or carriage] of the same as follows: [State terms of agreement.] 2. That the defendant duly performed all the conditions of said contract on his part, and carefully and safely stored said goods [or safely transported the same according to his said agreement], and has always been, and still is, ready and willing to deliver the said goods to the plaintiff [or to his consignee] upon payment of the sum due for storage [or freight] . 3. That the plaintiff has not paid or tendered to the defendant th* said sum. or any part thereof. [Concluding part.] Ch. CXXIL] ANSWERS.— FORMS. 164:5 FORM No. 1005 — Defense by common carrier, claiming Hen for services.— Replevin, by the United States of America, to recover goods and supplies transported. (In Union Pacific R. Co. v. United States, 2 Wyo. 170.) [Title of court and cause.] Now comes the defendant, the Union Pacific Railroad Company, and for answer to the petition of the United States of America, says : 1. That it denies each and every of the allegations stated and contained in the said petition, except that the said defendant was a corporation as therein alleged. And of this the said defendant puts itself upon the country. 2. And the defendant, for a further answer to the petition of plaintiff, says : That it is a common carrier of goods and merchan- dise for hire and reward, from the city of Oklahoma, in the state of Nebraska, to the town of Rawlins, in the territory of Wyoming; that as such common carrier it received the said goods and chattels in the plaintiffs' petition mentioned long prior to the commence- ment of the action herein, at Omaha aforesaid, from one Dwight J. McCann, then lawfully in the possession and control of the said goods and chattels, for transportation to Rawlins, in the territory of Wyoming, and that thereafter, as a common carrier, the said defendant carried and transported the said goods and chattels from said Omaha to said Rawlins; that under and by virtue of the con- tract under which the said goods and merchandise were carried and transported the defendant was to have the right to retain the pos- session of the said goods, chattels, and merchandise, and of each and every part thereof, until its charges for the carriage, transportation, and storage of the same should be fully paid and discharged ; that its charges for the carriage, transportation, and storage of said goods, wares, and merchandise have not, nor has any part thereof, ever been paid ; that its charges as aforesaid on the 20th day of No- vember, 1877, amounted to the sum of $588.16, to wit, for freight and transportation, $496.86, and $91.30 for storage ; that on the 20th day of November, 1877, under and by virtue of the contract aforesaid, and under its lien as a common carrier, it had a special ownership in the said property, goods, wares, and merchandise, in the plaintiff's petition mentioned, and in each and every part thereof, and on said date was entitled to the possession of the said property, and of each and every part thereof; that, therefore, plaintiff wrongfully and 1644 CLAIM AND DELIVERY.— REPLEVIN. [Tit. XV. unlawfully deprived the defendant of the possession of the prop- erty in the plaintiff's petition mentioned, to the damage of the defendant in the sum of $588.16. Wherefore, the defendant prays judgment against the plaintiff for the said sum of $588.16, with interest thereon since the 20th day of November, 1877, and costs of this action. "W. R. Steele, Attorney for defendant. FORM No. 1006 — Defense of lien for services for manufacturing. [Title of court and cause.] The defendant answering the plaintiff's complaint [or petition], alleges : 1. That said goods were manufactured by the defendant, as [here state] , and were detained by him by virtue of his lien as a mechanic and the manufacturer thereof as security for the payment of $ , which is the amount due him from the plaintiff for work and labor in manufacturing them. 2. That the defendant has always been, and still is, ready and willing to deliver the said goods to the plaintiff upon receiving the said amount, but the plaintiff has not paid or tendered the same, which is still due and unpaid. FORM No. 1007 — Defense by sheriff. — Justification of taking under attach- ment. [Title of court and cause.] The defendant answering the plaintiff's complaint [or petition], alleges : 1. That on the day of , 19 , one C. D. was, and from that time until the day of , 19 , remained, the sole owner of all the goods and chattels described in the complaint [or peti- tion]. 2. That on the day of , 19 , an action was duly com- menced by one E. F. against the said C. D., in the court of the county of , in the state of , to recover $ , alleged to be due for [state what]. 3. That on the said date a summons was issued in due form in the last-named action, and on said date was duly served upon the said C. D. by the defendant, as the sheriff of the county of , by Ch. CXXII.] ANSWERS.— FORMS. 1645 delivering to the said C. D., personally a true copy thereof, attached to a copy of the complaint [or petition] therein, at 4. That on said date a writ of attachment was duly issued in due form in the said last-named action, after the summons was issued therein, and placed in the hands of the defendant, as sheriff afore- said ; that on said date the said sheriff delivered a true copy of said writ of attachment to , in whose possession the property described in said complaint [or petition] then was, together with a written notice signed by said sheriff, endorsed on said copy of said writ of attachment, and directed to said , notifying him that all moneys, goods, credits, effects, debts due or owing, or any other personal property in his possession or under his control belonging to said C. D., were attached by virtue of said writ of attachment, and not to pay over or transfer the same to any one but him, the said sheriff. 5. That thereafter, to wit, on the day of , 19 , judg- ment was duly made, rendered, and entered in said last-named action, in said court, against said C. D., and in favor of said E. F., for the sum of $ 6. That on the day of , 19 , an execution was duly issued in due form in said court, under and by virtue of said judgment, which execution was on said last-mentioned date placed in the hands of the defendant, as sheriff, for service. 7. That said sheriff executed the same by delivering to said , personally, on the day of , 19 , at , a true copy of said execution, and a notice, in writing, notifying said that all moneys, goods, credits, effects, debts due or owing, or any prop- erty in his possession or under his control, belonging to the said C. D., were levied upon by virtue of said writ of execution, and not to pay over or transfer the same to any one but him, the said sheriff, and by delivering to the said C. D. personally, on the day of , 19 , at , a true copy of said writ of execution and notice, together with a description of the property levied upon. 8. That said sheriff, by virtue of said writ of execution, duly levied upon, on the day of , 19 , all the right, title, and interest of said C. D. in and to the property described in the com- plaint, the same then being in the possession of said , and being the sole property of the said C. D., by taking all of said property into his possession, and by delivering to said on Ig46 CLAIM AND DELIVERY.— REPLEVIN. [Tit. XV. the day of , 19 , a true copy of said writ of execution, together with a description of all of said property, and a written notice that said property, and all the right, title, and interest of said C. D. therein, was levied upon, and by delivering to said C. D. personally on the day of , 19 , at , a true copy of said writ of execution, description, and notice. 9. That said sheriff, on the day of , 19 , duly adver- tised all of said property in accordance with law, by posting notices of sale, particularly describing said property, in public places in , advertising said property to be sold at public auction in view thereof, at [place of sale], on , 19 , between the hours of and , and that on said day all of said described property was by said sheriff, at the hour of , and at the place aforesaid, exposed for sale at public auction, and was sold in separate lots or parcels to the highest and best bidders for cash, the whole thereof being sold for the sum of $ , which said sum, less the sum of $ , sheriff's costs, was on the day of , 19 , credited on said execution and judgment. 10. [Denial that plaintiff was the owner or in possession of said goods and chattels, or any thereof.] [Concluding part.] FORM No. 1008 — Defenses — (1) that foreign corporation plaintiff had not filed articles or designated resident agent, (2) justifica- tion of the taking of outlawed and gambling devices, (3) specific denials of value, etc. — In replevin, by foreign corporation. (In Mills Novelty Co. v. Dunbar, 11 Idaho 671; 83 Pac. 932.) [Title of court and cause.] [After introductory part and admission of incorporation of plaintiff, the answer avers in substance:] * * * That the plaintiff has not filed a copy of its articles, certified or otherwise, in the office of the secretary of state of the state of Idaho, and has not, in writing or otherwise, designated any person residing within the state as its agent upon whom legal process may be served, and denies that the plaintiff was, on the 22d day of October, 1904, or at any other time, at the city of Boise, or any other place within the state of Idaho, lawfully possessed of said slot-machines, or that the plaintiff was at the commencement of this action, or at any time Ch. CXXIL] ANSWERS— FORMS. 1647 since, entitled to the possession of said slot-machines; denies that said slot-machines are of the value of $325, or any other sum; denies that said slot-machines, or any part thereof, were on said date, or at any time, the property of the plaintiff; denies that the plaintiff at any time before the commencement of this action demanded the possession of said slot-machines; denies that he still unjustly detains the same, or ever at any time unjustly detained the same, to the damage of the plaintiff in any sum whatever. For a second defense, the defendant alleges: That he is a duly appointed, qualified, and acting justice of the peace in and for Boise Precinct No. 2, Ada County, Idaho; that on the 22d day of October, 1904, information was presented to him as such justice of the peace, by which, as such justice of the peace, he was informed and satisfied that gambling devices, to wit, said nine slot-machines, were then within the said city, and then in operation as such gambling devices in said city ; that said information was derived from an affidavit of the prosecuting attorney of said county ; that thereupon defendant, acting as such justice of the peace, forth- with issued warrants to "the sheriff or any deputy sheriff or con- stable in said county," commanding that said slot-machines be brought before him at his office in said city; that thereupon said slot-machines were, under and by virtue of said warrants placed in the hands of A. Anderson, the constable of said county, seized and brought before the defendant, as justice of the peace, to be dealt with according to law and the statute in such cases made and pro- vided, and that such slot-machines were in the custody of the law, and in the possession and under the control of said A. Anderson, as constable, subject to the order of said justice's court, at the time of the commencement of this action, — all of which facts were well known to plaintiff and its agents and attorneys at the time of the institution of this action; that said slot-machines are, and each of them is, adapted to, and designed and designated for, the pur- pose of being used solely in gambling ; that they were at the time the same were seized and for many days prior thereto, * * * being used for the sole purpose of gambling and playing games, at which money was bet and won or lost; that said slot-machines were gam- bling devices, * * * and that the same and all of them are out- lawed property, without value or ownership, at the time of the com- mencement of this action and at all times since said date; that said 1648 CLAIM AND DELIVERY.— REPLEVIN. [Tit. XV. machines are not susceptible of any legitimate use, and that the same, and all thereof, are instruments of crime, designed and devised for the purpose of violating the statutes of this state prohibiting gam- bling, and are incapable of ownership ; that such slot-machines were at the time of the commencement of this action, and at the times men- tioned in the complaint, in the possession of the said constable. Wherefore [etc.]. Quarles & Pritchard, Attorneys for defendant. For various other forms in claim and delivery or replevin, see the following (ch. XXIII): Affidavit on claim and delivery, form No. 211; Order and demand upon sheriff, endorsed upon affidavit, form No. 212; Certificate of sheriff, endorsed upon affidavit, form No. 213; Undertaking, form No. 214; Justification of sureties on under- taking, form No. 215; Sheriff's certificate of service of undertaking, form No. 2l6. Forms of complaint in actions of replevin: Wegner v. Second Ward Sav. Bank, 76 Wis. 242, 44 N. W. 1096; Scully v. Porter, 3 Kan. App. 493, 496, 43 Pac. 824, 825. Form of answer in an action to obtain possession of certain personal property, held by the sheriff under attachment: Butts v. Privett, 36 Kan. 711, 14 Pac. 247. Form of answer in an action in replevin to recover the possession of a warranty deed: Richards v. Gaskill, 39 Kan. 428, 18 Pac. 494. Form of affidavit in replevin: Gardner v. King, 37 Kan. 671, 15 Pac. 920, 921. Form of bond in an action upon a redelivery bond in replevin: Kennedy v. Brown, 21 Kan. 171, 175. Form of redelivery bond in an action in replevin: Nye v. Weiss, 7 Kan. App. 627, 53 Pac. 152. Form of notice of appeal in an action in replevin to recover possession of sundry chattels alleged to be wrongfully taken and withheld by the defendant, sheriff, who seized said property as the property of the defendant: Corbell v. Childers, 17 Ore. 528, 21 Pac. 670. For agreed statement of facts in action to recover personal property or its value, Bee Blankinship v. Oklahoma City etc. Co., 4 Okla. 242, 43 Pac. 1088. For agreed statement of facts in action in replevin by the United States of America to recover from common carrier goods and supplies transported by such common carrier and upon which defendant claimed the right of lien for its services, see Union Pacific R. Co. v. United States, 2 Wyo. 170. For agreed statement of facts in action in replevin, and to determine rights and title to property of an attaching creditor whose remedy is perfected, as against an attaching creditor held to have released his lien by laches in pursuing his remedy, see Speelman v. Chaffee, 5 Colo. 247. §423. ANNOTATIONS. — Claim and delivery of personal property. — Replevin. 1. Essentials of complaint. 2, 3. Allegation as to ownership. 4, 5. Possession in defendant an essential. 6. Gist of the action of replevin under the statutes. 7-9. When action will lie. 10. Demand in replevin. 11. Demand unnecessary where seizin is unlawful. 12. Defense. — Estoppel to deny taking. 13. Defense as to demurrage tendered. Ch. CXXII.] ANNOTATIONS. 1640 14. Action npon replevin bond. 15. Dismissed attachment suit not a bar to replevin. 16. Decision in replevin. 1. Essentials of complaint. — In a suit to recover personal property, the com- plaint must show the ultimate fact that the plaintiff was the owner or entitled to the possession at the time of the commencement of the action; and it is not sufficient to merely aver that he was the owner or entitled to the pos- session at some period prior to that time: Manti City Sav. Bank v. Peter- son, 30 Utah 475, 86 Pac. 414, 116 Am. St. Rep. 862, (replevin), citing Freder- icks v. Tracy, 98 Cal. 658, 660, 33 Pac. 750; Afflerback v. McGovern, 79 Cal. 268, 269, 21 Pac. 837; Masterson v. Clark (Cal.), 41 Pac. 796; Holly v. Heiskell, 112 Cal. 174, 175, 44 Pac. 466; Kimball Co. v. Redfield, 33 Ore. 292, 54 Pac. 216. 2. Allegation as to ownership. — In an action of claim and delivery of personal property, a general allegation of owner- ship is ordinarily sufficient: Illinois Sewing M. Co. v. Harrison, 43 Colo. 362, &6 Pac. 177; Benesch v. Waggner, 12 Colo. 534, 21 Pac. 706, 13 Am. St. Rep. 254; Baker v. Cordwell, 6 Colo. 199; Hanna v. Barker, 6 Colo. 303, 313. 3. Ownership implies right of posses- sion. — A general allegation of a right to the possession of goods and chattels de- manded in replevin is sufficiently main- tained by evidence of ownership alone, for the reason that the ownership of property usually carries with it the right of possession; this, however, is subject to any special right to posses- sion of the property, as may be shown by the adverse party: Krebs Hop Co. v. Taylor, 52 Ore. 627, 97 Pac. 44, 45, citing Cassel v. Western Stage Co., 12 Iowa 47, as to exception where special right to possession is shown. 4. Possession in defendant an essen- tial.— A plaintiff can not recover in an action in claim and delivery where it appears that the defendant did not have the property in his possession at the time of the commencement of the ac- tion: Riciotto v. Clement, 94 Cal. 105, 29 Pac. 414. 5. A plaintiff in replevin must re- cover, if at all, on the strength of his own claim, and a failure to prove his right to the immediate possession of the property, where the illegal detention Is denied, is a failure of proof upon a ma- terial point: Bard well v. Stubbert, 17 Neb. 4S5, 23 N. W. 444; Krebs Hop Co. V. Taylor, 52 Ore. 627, 97 Pac. 44, 46. 6. Gist of the action of replevin under the statutes. — An action of replevin at common law could be maintained only when the personal property sought to be recovered was wrongfully taken. The remedy has generally been extended by statute so as to include an unlawful de- tention, and the gist of the action is now regarded as the wrongful holding by a person of goods, chattels, etc., the right to the immediate possession of which is in another: Krebs Hop. Co. v. Taylor, 52 Ore. 627, 97 Pac. 44, 45; Nunn v. Bird, 36 Ore. 515, 59 Pac. 808. 7. When action will lie. — The action of replevin lies only against the party who wrongfully detains the property in controversy from the complainant, — a fact which must be alleged by the re- lator in his complaint and proved on the trial: Barnes v. Plessner, 137 Mo. App. 571, 119 S. W. 457, 458, citing Mo. Rev. Stats. 1S99, § 3901, Ann. Stats. 1906, p. 2156; Davis v. Randolph, 3 Mo. App. 454. 8. An action in claim and delivery for the possession of shares of stock in a corporation, as being intangible prop- erty, will not lie: Ashton v. Heydenfeldt, 124 Cal. 14, 56 Pac. 624; Bell v. Bank of California, 153 Cal. 234, 238, 94 Pac. 889. 9. An action of replevin can not be maintained against one not in the actual or constructive possession of property, unless he has sold, disposed of, or re- moved the same with intent of avoid- ing the writ: Robb v. Dobrinski, 14 Okla. 563, 78 Pac. 101, 1 Am. & Eng. Ann. Cas. 981; Depriest v. McKinstry, 38 Neb. 194, 56 N. W. 806; Riciotto v. Clement, 94 Cal. 105, 29 Pac. 414; Davis v. Van De Mark, 45 Kan. 130, 25 Pac. 589; Gardner v. Brown, 22 Nev. 156, 37 Pac. 240. See cases enumerated in note to Robb v. Dobrinski, supra, 1 Am. & Eng. Ann. Cas. 984. 10. Demand In replevin. — The better rule would appear to be that a demand is not an essential averment in replevin; for, as it has been well said, "if the lG^O CLAIM AND DELIVERY.— REPLEVIN. [Tit. XV. plaintiff is entitled to immediate posses- sion, the detention by the defendant is wrongful; if, however, no demand be made before the institution of the suit, and the original possession of the de- fendant were lawful, he may tender the property to the plaintiff, and, upon its delivery, by proper plea, discharge the action. But if, instead of this course, he denies the right of the plaintiff, and contests the action upon its merits, he can not, after a verdict against him, de- feat a recovery on the ground that there was no demand. The writ is a demand, and defending the suit a refusal": Citi- zens' State Bank v. Chattanooga State Bank (Okla.), 101 Pac. 1118, 1120, quot- ing from Dearing v. Ford, 13 Smedes & M. (Miss.), 274, and referring for cases supporting this rule to 24 Am. & Eng. Ency. Law, 2d ed., p. 510, notes 4, 6. 11. Demand unnecessary where seizin is unlawful.— Where the seizin is un- lawful, it is not necessary to allege a demand in replevin: Krebs Hop Co. v. Taylor, 52 Ore. 627, 97 Pac. 44, 45; Surles v. Sweeney, 11 Ore. 21, 4 Pac. 469; Moorhouse v. Donaca, 14 Ore. 430, 13 Pac. 112. 12. Defense. — Estoppel to deny taking. Where to the complaint in an action in claim and delivery to recover the pos- session of certain cattle, the defendant answered and alleged the taking of the property described in the complaint, to- gether with other property, in a chattel mortgage, and afterwards upon the trial offered to show that the stock did not answer the description contained in the complaint; held, that such evidence was properly rejected, inasmuch as by its answer the defendant had estopped itself from claiming that it had not taken the property described in the com- plaint, there being no request made to amend the answer: Kime v. Edgemont, 22 S. Dak. 630, 119 N. W. 1003. 13. Defense as demurrage tendered. — A defense to an action in replevin to recover from defendant, a railway cor- poration, under the laws of Missouri, the possession of certain specifically de- scribed lumber, which defense is based upon a count in which the defendant al- leges a certain tender of demurrage as to each car, but fails to allege that the amount so tendered was a reasonable sum for such charges, and fails, in view of an interstate commerce regulation, to aver that the amounts were sufficient to meet the same; held, that the demurrer was properly sustained thereto: Dar- lington L. Co. v. Missouri Pacific R. Co., 216 Mo. 658, 116 S. W. 530, 537. 14. Action upon replevin bond. — In all suits on replevin bonds, it is provided in the Missouri statutes (Rev. Stats. 1899, § 3924, Ann. Stats. 1906, p. 2165> that where the action is dismissed for want of jurisdiction, the defendant therein shall have a right of action on the bond, but that in such action the defendants (plaintiffs in the original ac- tion) "shall have the right to set up as a defense the ownership or the right of possession of the property involved in the original replevin suit": Bailey v. Dennis, 135 Mo. App. 93, 115 S. W. 506, 507. 15. Dismissed attachment suit not a bar to replevin. — The bringing of an at- tachment suit which is dismissed before judgment does not bar a suit in re- plevin arising out of the same transac- tion: Johnson-Brinkman Com. Co. v. Missouri Pacific R. Co., 126 Mo. 344, 28 S. W. 870, 26 L. R. A. 840, 47 Am. St. Rep. 675, approved in Tower v. Compton Hill I. Co., 192 Mo. 379, 91 S. W. 104. 16. The decision in replevin should re- spond to all the issues raised by the pleadings, and, as unlawful detainer is the gist of the action, should speak un- equivocally as to that: Barnes v. Pless- ner, 137. Mo. App. 571, 119 S. W. 457. 458; Mercer v. James, 6 Neb. 406; Smith v. Smith, 17 Ore. 444, 21 Pac. 449. Ch. CXXIII.j CODE PROVISIONS, ETC. 1651 CHAPTER CXXIII. Injunction. Page § 424. Code provisions 1651 § 425. Complaints [or petitions] 1659 Form No. 1009. For injunction against waste 1659 Form No. 1010. To restrain negotiation of note 1660 Form No. 1011. To restrain threatened injury to an invaluable chattel 1660 Form No. 1012. To enjoin obstruction maintained by a rail- road corporation along a public highway.. 1661 Form No. 1013. To enjoin claimants from asserting or claim- ing, except in present action, under alleged mechanics' liens 1662 § 426. Orders, decrees, etc 1663 Form No. 1014. Order to show cause, and interlocutory in- junction 1663 Form No. 1015. Temporary injunction pendente lite, condi- tioned on giving of bond by the plaintiff.. 1664 Form No. 1016. Injunction pendente lite to restrain continu- ance of trespass 1666 Form No. 1017. Undertaking on injunction 1666 Form No. 1018. Order granting motion dissolving injunction. 1667 Form No. 1019. Order dissolving or modifying injunction 1667 Form No. 1020. Judgment for defendant dissolving temporary injunction, etc., in action to restrain a church society from converting church property, misdirecting its use, etc 1668 § 427. Annotations I 669 §424. CODE PROVISIONS. Preventive relief, how granted. California, § 3420. Preventive relief is granted by injunction, pro- visional or final. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6118. North Dakota, Rev. Codes 1905, § 6628. South Dakota, Rev. Codes 1903, C. C. § 2359. 1652 INJUNCTION. [Tit. XV. Provisional injunctions. California, § 3421. Provisional injunctions are regulated by the Code of Civil Procedure. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6119. North Dakota, Rev. Codes 1905, § 6629. South Dakota, Rev. Codes 1903, C. C. § 2360. Injunction to prevent breach of an obligation. California, § 3422. Except where otherwise provided by this title, a final injunction may be granted to prevent the breach of an obli- gation existing in favor of the applicant: 1. "Where pecuniary compensation would not afford adequate relief ; 2. Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief ; 3. Where the restraint is necessary to prevent a multiplicity of judicial proceedings; or, 4. Where the obligation arises from a trust. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: » Iowa, Ann. Code 1897, § 4354. Montana, Rev. Codes 1907, § 6120. North Dakota, Rev. Codes 1905, § 6630. South Dakota, Rev. Codes 1903, C. C. § 2361. a Iowa, § 4354. An injunction may be pray and have a writ of injunction obtained as an independent remedy in an against the repetition or continuance of action by equitable proceedings, in all such breach of contract or other injury, cases where such relief would have been or the commission of any breach of con- granted in equity previous to the adop- tract or injury of a like kind arising out tion of the code; and in all cases of of the same contract or relating to the breach of contract or other injury, where same property or right, and he may also, the party injured is entitled to maintain in the same action, include a claim for and has brought an action by ordinary damages or other redress, proceedings, he may, in the same cause, When injunction cannot be granted. California, § 3423. An injunction cannot be granted : 1. To stay a judicial proceeding pending at the commencement of the action in which the injunction is demanded, unless such restraint is necessary to prevent a multiplicity of such proceedings. 2. To stay proceedings in a court of the United States. Ch. CXXIII.] CODE PROVISIONS. 1653 3. To stay proceedings in another state upon a judgment of a court of that state. 4. To prevent the execution of a public statute, by officers of the law, for the public benefit. 5. To prevent the breach of a contract, the performance of which would not be specifically enforced. 6. To prevent the exercise of a public or private office, in a law- ful manner, by the person in possession. 7. To prevent a legislative act by a municipal corporation. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: • Arizona, Rev. Stats. 1901, H 2743. b Arkansas, Dig. of Stats. 1904 (Kirby), 5 3986. c lowa, Ann. Code 1897, § 4364. Montana, Rev. Codes 1907, § 6121. North Dakota, Rev. Codes 1905, § 6631. South Dakota, Rev. Codes 1903, C. C. §2362. 2 Arkansas, § 390. If the defendant shall have given bond for the retention of the property attached, as provided by section 362, and the attachment shall be sustained, the court or jury, in addition to finding the amount of debt or damages due to the plaintiff, shall, upon demand of the plaintiff, also assess the value of the property attached, and the court shall, in addition to judgment against the defendant for the amount due to the plaintiff and costs, render further judg- ment, that in case said property shall not be delivered up to the proper officer to be sold, and said officer shall not be able to make said judgment out of the property of said defendant, execution shall then issue against the property of said sureties for so much of said judg- ment as shall not exceed the value of said property, which execution shall be enforced as in other cases. c Iowa, § 3908. Such bond shall be part of the record. If judgment go against the defendant, the same shall be entered against him and sureties. 19 * F. G., Clerk. [Seal.] B y N - M -> Deputy Clork. •Ch. CXXIV.] WRITS, CERTIFICATES, ETC.— FORMS. 1695 FORM No. 1031 — Return of sheriff to writ of attachment. (In Harrison v. Trader, 29 Ark. 85. ) x [Title of court and cause.] I executed the within writ of attachment at Phillips County, Ark., on the 29th day of March, 1867, by declaring publicly, in the presence of Cameron Biscoe, a citizen of my county, that I did attach the fol- lowing-named lands as the property of the within-named defendant, William H. Trader, and Ellen Trader, his wife. [Here follows a -description of the land.] Levied on by virtue of the within writ of attachment. The said William Trader and Ellen Trader, his wife, are not found in my county. Bart y Turner gheriff FORM No. 1032 — Notice of garnishment [or attachment] of moneys [etc.] owing [or belonging] to defendant. County of Sheriff's office. To A. B. [naming the garnishee] Please take notice, that all moneys, goods, credits, stocks, or inter- ests or shares in the Company, all debts due and owing from you to the defendant above-named, and all other personal property in your possession or under your control, belonging to the said defendant, is hereby garnished [or attached] by virtue of a writ of which the annexed is a true copy; and you are hereby notified not to pay over or transfer said property [debts, etc.] to any one but the undersigned sheriff. You are hereby requested to make a state- ment of said property. R g Sheriff [Copy of writ annexed.] FORM No. 1033 — Certificate by sheriff of execution of writ of attachment in garnishment proceeding. (In Carter v. Koshland, 12 Ore. 492; 8 Pac. 556.) [Endorsed upon the writ:] I hereby certify that I received the within writ of attachment on the 14th day of May, 1885, at Portland, in the county of Multnomah, i The return to the writ of attachment, form No. 1031, was held to be a good levy on lands, and that the same created a lien thereon from the date of the attachment, under the 7th section of the act approved March 7, 1867: Harrison v. Trader, 29 Ark. 85. 1696 ATTACHMENT AND GARNISHMENT. [Tit. XV.. in said state, by serving a garnishment upon K. B., as required by law, garnishing all debts, property, moneys, rights, dues, and credits of every nature in their hands or under their control, belonging or owing to the said L. H. Frank, to which the said K. B. made an answer; said answer being hereto attached and made a part of this return. ir .. _,, ._ M. N., Sheriff. FORM No. 1034 — Answer of garnishee to the writ. (In Carter v. Koshland, 12 Ore. 492; 8 Pac. 556.) [Attached to the writ:] I hereby return [and answer] that I have no property in my hands at this time, nor have I any property, debts, money, dues, or credits, of any kind or nature, belonging to L. H. Frank [defendant]. [Signed] K. B. FORM No. 1035 — Receipt In satisfaction of claim, and directing release of goods attached. (In Levy v. McDowell, 45 Tex. 220, 222.) [Title of court and cause.] Received of the sum of $182, in full satisfaction of claim of Ralph Levy & Co. against James McDowell ; and J. B. Good, sheriff of Colorado County, will release the goods attached in the suit. R. V. Cook, Attorney for Ralph Levy & Co., plaintiff. §432. MOTIONS AND ORDERS. FORM No. 1036 — Motion to quash writ of attachment. (Special appearance.) (In Holzman v. Martinez, 2 N. Mex. 271, 282.) [Title of court and cause.] And now comes the defendant, and for the purpose of this motion, and for no other, moves the court to quash the writ of attach- ment herein, for the following reasons, to wit : 1. Said writ of attachment is void on its face. 2. Said writ of attachment is returnable to an impossible day and impossible term, if to any term at all. 3. The said writ bears no teste of any court. 4. The said writ has no endorsement containing a brief statement of the cause of action thereon, as required by law. €b. CXXIV.] MOTIONS AND ORDERS.— FORMS. 1G97 5. Said writ is otherwise uncertain, defective, and insufficient in many other respects, as appears from the face thereof. Said motion will be based upon the papers, records, etc., in said case. C. D., Attorney for defendant for said purpose. FORM No. 1037— Order releasing attachment. [Title of court and cause.] , the defendant in this action, having applied for the release of property attached therein, and an undertaking having been given in behalf of , defendant in this action, as required by the court, to obtain an order for the release from attachment of the property of said defendant, , attached under a writ of attachment issued in this action, and the sureties to such undertaking having justified [or no exception to the sufficiency of said sureties having been made] : It is therefore ordered, that the following-described property of the defendant, , namely: [Here describe the same], which has been attached under writ of attachment issued herein, be and the same is hereby released from said attachment. [Date.] S. T., Judge. FORM No. 1038 — Order discharging an attachment improperly or irregu- larly issued. [Title of court and cause.] It appearing to the court that the writ of attachment in this action was improperly [or irregularly] issued [or both improperly and irregularly issued], for the following reasons: [Here state the same briefly :] It is therefore ordered, that said writ of attachment be and the same is hereby discharged. [Date.] S. T., Judge. FORM No. 1039 — Order for the sale of attached property. [Title of court and cause.] It appearing to the satisfaction of the court from the stipulation of the attorneys of the parties to the action [or from affidavits or from evidence, as the case may be], that the property under attach- 1698 ATTACHMENT AND GARNISHMENT. [Tit. XV. ment herein is of a perishable character [or that the same is likely to materially depreciate in value], and it appearing that it will be for the interest and advantage of the parties to the action if said property be sold forthwith : It is therefore ordered, that said property so attached be sold by the sheriff in whose care said property is now held, and that sale thereof be made in the manner provided by law [or, if the statute make no provision as to manner of sale, specify the manner, if desired] ; and it is further ordered, that the proceeds of said sale be deposited in court to abide the judgment in this action. [Date.] S. T., Judge. FORM No. 1040 — Order reviving proceedings against non-resident defendant, and continuing attachment proceeding. [Title of court and cause.] [After introductory part, briefly setting forth filing of motion and hearing thereon :] It is ordered, that plaintiff have, and he is hereby granted, leave to proceed against , the executor [or administrator] of the estate of said , deceased, by the service of summons and the complaint upon him as the defendant herein; and that the proceed- ings by attachment stand revived and continued in the name of said executor as defendant. [Date.] S. T., Judge. Form of petition in an action for abuse of legal process in a civil suit, the defend- ant having directed the sheriff to serve the execution by a garnishment of a com- pany for a debt due for personal earnings exempt from execution: Nix v. GoodhiJl. 95 Iowa 282, 63 N. W. 701, 58 Am. St. Rep. 434. §433. ANNOTATIONS.— Attachment and garnishment. 1. Limitation upon right to attachment. 2, 3. Property subject to attachment. — Corporation stock. 4. Attachment of crops under mortgage. 5. Money lost in gambling. 6. Effect of assignment. 7. Liability upon undertaking. 8. Payee not designated in bond. — Effect of. 9. Liability of sheriff. 10, 11. Security for indebtedness. — Omission of statement. 12. Interest not required to be stated. 13. Defense of estoppel in relation to attachment proceedings. 14-16. Intervention. 17. Junior attaching creditor may intervene. 18. Texas practice as to intervention. 19. Interplea in attachment. 20, 21. Judgment against garnishee. Ch. CXXIV.] ANNOTATIONS. 1699 1. Limitation upon right to attach- ment. — Where a statute provides that the plaintiff may have the property of the defendant attached "in an action arising on contract for the recovery of money only, or in an action for the wrongful conversion of personal prop- erty," and further provides that "the warrant may issue upon affidavit stat- ing that a cause of action exists against such defendant, specifying the amount of the claim and the grounds thereof," etc., it has been held that the claim must be for some definite, ascertained amount, or an amount capable of being definitely ascertained and made certain by the contract and the statement in the affidavit; and further, that the lan- guage of such statute is broad and comprehensive enough to include all ac- tions on contract for the recovery of money only, whether the damages are liquidated or unliquidated. There would be included under this rule all claims for damages in which, from the contract and facts stated in the affidavit, the court in applying the law can definitely determine the amount which plaintiff is entitled to recover; and it would exclude all cases where the amount of the claim can be determined by no fixed rule of law, but is to be de- termined entirely by the opinion of a court or jury: Coats v. Arthur, 5 S. Dak. 274, 58 N. W. 675, (Fuller, J., dis- senting, and in his opinion stating that he did not consider the statute broad enough in its terms to include cases at which the facts are as stated in the af- fidavit). 2. Property subject to attachment. — Corporation stock. — An attachment may be levied upon transferred shares of stock as the property of the trans- ferrer, unless such transfer is completed by entry on the books of the corpora- tion: Weston v. Bear River etc. Co., 5 Cal. 186, 187-189, 63 Am. Dec. 117; Nag- lee v. Pacific Wharf Co., 20 Cal. 529, 533; Farmers' Nat. Gold Bank v. Wilson. 58 Cal. 600, 604; McFall v. Buckeye Grangers' Warehouse Assn., 122 Cal. 468, 471, 55 Pac. 253, 68 Am. St. Rep. 47; First Nat. Bank v. Hastings, 7 Colo. App. 129, 42 Pac. 691; Conway v. John, 14 Colo. 30, 33, 23 Pac. 170; Ft. Madi- son Lumber Co. v. Batavian Bank, 71 Iowa 270, 32 N. W. 336, 60 Am. Rep. 789; Lyndonville Nat. Bank v. Folsom, 7 N. Mex. 611, 38 Pac. 253; In re Argus Print Co., 1 N. Dak. 434, 48 NT. W. 347, 26 Am. St. Rep. 639, 12 L. R. A. 781; Union Bank v. Laird, 15 U. S. (2 Wheat.) 390, 4 L. ed. 269. 3. Equity will not permit the stock to be attached as belonging to the trans- ferrer where the transferee has been diligent in his efforts to comply with the statute, and the failure to have the entry made is due to no fault of his: Weber v. Bullock, 19 Colo. 214, 35 Pac. 183; Hastings v. First Nat. Bank, 4 Colo. App. 419, 36 Pac. 618; Colt v. Ives, 31 Conn. 25, 81 Am. Dec. 161. 4. Attachment of crops under mort- gage. — Attachment can not issue upon growing crops included in a chattel mortgage until payment of mortgage debt or tender thereof has been made: Wood v. Franks, 56 Cal. 217; Chittenden v. Pratt, 89 Cal. 178, 183, 26 Pac. 626. See Rudolph v. Saunders, 111 Cal. 233, 234, 43 Pac. 619. 5. Money lost in gambling, where in- trusted to a clerk, can not be recovered by his principal in attachment proceed- ings: Babcock v. Briggs, 52 Cal. 502, 503. 6. Effect of assignment. — All that can be reached under execution or by gar- nishment is the right which remains in the assignor, where the assignment is made bona fide. This interest is the legal title, subject to the equitable in- terests of the assignee: Wheless v. Meyer etc. Co., 140 Mo. App. 572, 120 S. W. 708, 714. 7. Liability upon undertaking. — An undertaking in attachment does not ren- der the obligors liable for remote and possible consequences, but only for the proximate consequences naturally and ordinarily resulting from effect of writs: Elder v. Kutner, 97 Cal. 490, 493, 32 Pac. 563. 8. Payee not designated in bond. — Ef- fect of. — A bond given by interveners upon an order of sale enforcing an at- tachment lien, which order of sale and bond were directed to the sheriff, the bond designating no payee, but naming the party for whose security the obliga- tion was to be executed, has been up- held as a good common-law bond: Eichoff v. Tidball, 61 Tex. 421, 423, (form of the bond set out in the report of the case). 9. Liability of sheriff. — It is the duty of the sheriff, when he receives instruc- tions, to release the levy and to return 1700 ATTACHMENT AND GARNISHMENT. [Tit. XV. the goods to the defendant or to his agent; and the sheriff and his sureties are responsible to the owner of the goods for their value in case he fails to do so, or in case he turns them over to some person not authorized to receive the same, although, by misapprehension, he, the sheriff, believed that such per- son was the agent of the defendant: Levy v. McDowell, 45 Texas 220, 226. 10. Security for indebtedness. — Omis- sion of statement. — An affidavit for at- tachment is insufficient where it pro- ceeds to follow the language of the statute and omits one of the important elements which the statute provides that it must contain. Under this rule, it has been held that where the statute provides that the affidavit shall state, among other things, that the indebted- ness or demand "has not been secured by • • * any mortgage or lien upon real or personal property, or any pledge of personal property," an omission of the provision that the debt was not se- cured by "any pledge of personal prop- erty," or any substantially equivalent expression, is fatal to the affidavit: Knutsen v. Phillips, 16 Idaho 267, 101 Pac. 596, 598. 11. A contrary, and perhaps a better, doctrine than that declared upon in Knutsen v. Phillips, 16 Idaho 267, 101 Pac. 596, is that a declaration that the affiant has no lien upon personal prop- erty is sufficient to negative all possi- bility of his having a pledge; for if he had any pledge of personal property, he must have had a lien upon it: Glidden v. Whittier, 46 Fed. (C. C.) 437; O'Con- nor v. Witherby, 112 Cal. 38, 44 Pac. 340. 12. Interest not required to be stated. — It is not a material objection to an af- fidavit for attachment that it does not state the amount of interest due upon plaintiff's demand, where the principal sum is stated: Wright v. Ragland, 18 Tex. 289, 292. 13. Defense of estoppel In relation to attachment proceedings. [Title of court and cause.] [It has been held that the following paragraphs in an answer set forth facts by averment sufficient to constitute an estoppel if established on the trial, and that therefore it was error to sustain a demurrer thereto: Ashley v. Pick, 53 Ore. 410, 100 Pac. 1103.] [After introductory averments the an- swer proceeds:] (5) That afterwards, to wit, on the 1st day of May, 1907, in a civil action for recovery of money then pending in the justice court, Portland District, Mult- nomah County, state of Oregon, wherein D. H. Smith was plaintiff and said A. J. Parrington and Olive Parrington, his wife, were defendants, a writ of attach- ment was duly issued, commanding the constable of said district, of the personal property of said defendant to attach and safely keep to satisfy the demands of plaintiff in said action, together with the costs and expenses thereof. That under and pursuant to said writ all the prop- erty described in said complaint, and so received by this defendant, was duly at- tached and levied upon as the property of said defendants in said action. That afterwards, and on the 6th day of June, 1907, said court having jurisdiction over said defendant and the subject-matter of said action, rendered a judgment therein in favor of plaintiff, and against said defendant, and all of said attached property was by the order of said court directed to be sold to satisfy said judg- ment. That, pursuant to such order and judgment of said court, the constable of said district did on or about the 22d day of June, 1907, take from the posses- sion of this defendant all of said per- sonal property, and pursuant to said judgment and order of sale, after having duly advertised the same, sold all said personal property to satisfy the judg- ment so rendered by said court in such action against said defendants, A. J. Parrington and wife. (6) Further answering, defendant avers that he had no knowledge or any infor- mation of any sale, assignment, or transfer of the receipt so issued by him for the personal property so received from said A. J. Parrington and wife, prior to the said 27th day of July, 1907, and long after the attachment levy upon and sale of said personal property; that said plaintiffs knew and were well aware that all of said personal property was so attached and levied upon as the property of said A. J. Parrington and wife, and was being advertised and sold as such; that the place of business of plaintiffs is in the same vicinity as that of defendant, and, during all the while said property so sold under attachment was being advertised and sold to sat- isfy the judgment against said Parring- ton and wife, the said plaintiffs, being Ch. CXXIV.] ANNOTATIONS. noi fully advised thereof, acquiesced there- in, and did not then or ever prior to such sale make any claim of ownership or of any Interest in said personal prop- erty, or cause any information to be given to this defendant that they had or claimed the same, or any interest there- in; that solely by reason of such acquiescence of plaintiffs in the pro- ceedings then being had to subject said property to the payment of said judg- ment, and the lack of any knowledge or information that plaintiffs claimed said property or any interest therein, this defendant took no appeal from the order and judgment of said court directing the sale of said property, or any steps to enjoin the constable of said district from taking possession of said property under said writ, and this defendant al- leges that, by reason of the acquiescence of plaintiffs on such levy and sale of said property, the plaintiffs are now estopped from making claim thereto. [Prayer.] John M. Gearin, Attorney for defendant. [Verification.] 14. Intervention is uniformly allowed In favor of the owner of attached goods Letchford v. Jacobs, 17 La. Ann. 79 Dennis v. Kolm, 131 Cal. 91, 63 Pac. 141 Potlatch L. Co. v. Runkel, 16 Idaho 192, 101 Pac. 396, 398, 23 L. R. A. (N. S.) 536; Taylor v. Adair, 22 Iowa 279. 15. One who claims to be the owner of attached property, or to have a lien on it by mortgage, attachment, or other- wise, is entitled to intervene in an ac- tion where the property has been at- tached as being the property of another party: Potlatch L. Co. v. Runkel, 16 Idaho 192, 101 Pac. 396, 398, 23 L. R. A. (N. S.) 536. 16. If intervention were not allowed in favor of the owner of attached property, it would seem that it would be neces- sary for the owner to prosecute his ac- tion to remove the cloud of the attach- ment, unless the plaintiff in the action should voluntarily relinquish his claim. It is for just such a case, and for the purpose of preventing circuity and mul- tiplicity of actions, that the statute authorizing intervention by strangers was enacted: Potlatch L. Co. v. Runkel, 16 Idaho 192, 101 Pac. 396, 398, 23 L. R. A. (N. S.) 536; Pittock v. Buck, 15 Idaho 47, 96 Pac. 212; Pence v. Jury's PI.— 108. Sweeney, 3 Idaho (Hasb.) 181, 28 Pac. 413; Gold Hunter M. & S. Co. v. Holle- man, 3 Idaho (Hasb.) 99, 27 Pac. 413. 17. A Junior attaching creditor may Intervene in the action of a senior at- taching creditor for the purpose of test- ing the validity of the first attachment: McComb v. Reed, 28 Cal. 281, 87 Am. Dec. 115; Coghill v. Marks, 29 Cal. 673; Stich v. Dickenson, 38 Cal. 608; Kimball v. Richardson-Kimball Co., Ill Cal. 386, 43 Pac. 1111; McEldowney v. Madden, 124 Cal. 108, 56 Pac. 783. 18. Texas practice as to intervention. — Under the Texas practice, a third party, as owner or claimant of the prop- erty attached, may not intervene in the same case for the purpose of asserting his right, for the reason that, in such cases, the subject-matter of the suit is the debt to be collected, and the owner- ship of the property is in no way put in issue by the pleadings in the case, and therefore forms no part of the sub- ject-matter of the action: Williams v. Bailey (Tex. Civ. App.), 29 S. W. 834; Rodigues v. Trevino, 54 Tex. 198; Meyer v. Sligh, 81 Tex. 336, 16 S. W. 1022. 19. Interplea in attachment. — An in- terplea under the statute requiring that any person before the sale of attached property, or before the payment of the proceeds thereof to the plaintiff, may present his verified complaint to the court disputing the validity of the at- tachment or stating his claim to the property or an interest therein, must be read in connection with the code sec- tions which say "no objection shall be taken after judgment to any pleading for want of, or defect in, the verifica- tion": Burke v. Sharp, 88 Ark. 433, 115 S. W. 145, 148, citing Ark. Civ. Code, §§ 159, 257, and Kirby's Digest, §§ 391, 6152, 6182. 20. Judgment against a garnishee can not lawfully be rendered until judgment has been rendered against the defend- ant in the main action: Norman v. Poole, 70 Ark. 127, 66 S. W. 433. 21. But where that judgment has been rendered, and can not be enforced on account of failure to comply with the statutes, such failure should be set up by the garnishee as a defense: St. Louis etc. R. Co. v. McDermitt, 91 Ark. 112, 120 S. W. 831, 833. 1702 RECEIVERS. [Tit. XV. CHAPTER CXXV. Receivers. Page § 434. Code provisions 1702 § 435. Petitions and orders for leave to sue 1706 Form No. 1041. Petition for leave to sue a receiver 170& Form No. 1042. Certificate of attorney as to merits 1707 Form No. 1043. Order granting leave to sue a receiver 1707 Form No. 1044. Petition of receiver for leave to sue 1707 Form No. 1045. Order authorizing receiver to sue 1708 § 436. Complaints [or petitions] 1709 Form No. 1046. By a receiver appointed by a court in an action 1709 Form No. 1047. By receiver of a mining corporation, to recover assets belonging thereto 1710 Form No. 1048. Action against a receiver 1712 § 437. Annotations 1712 §434. CODE PROVISIONS. Receiver — When and in what cases appointed. California, § 564. A receiver may be appointed by the court in which an action is pending, or by the judge thereof : 1. In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to his claim, or between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff, or of any party whose right to or interest in the property or fund, or the pro- ceeds thereof, is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured; 2. In an action by a mortgagee for the foreclosure of his mortgage and sale of the mortgaged property, where it appears that the mort- gaged property is in danger of being lost, removed, or materially injured, or that the condition of the mortgage has not been per- formed, and that the property is probably insufficient to discharge the mortgage debt ; 3. After judgment, to carry the judgment into effect; 4. After judgment, to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal, or in proceedings in aid of execution, when an execution has been returned Ch. CXXV.] CODE PROVISIONS. 1703 unsatisfied, or when the judgment debtor refuses to apply his prop- erty in satisfaction of the judgment; 5. In the cases when a corporation has been dissolved, or is insolv- ent, or in imminent danger of insolvency, or has forfeited its corpo- rate rights; 6. In all other cases where receivers have heretofore been appointed by the usages of courts of equity. (Kerr's Cyc. Code Civ. Proc.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Alaska, Ann. Codes 1907, C. C. P. (Carter), §753. b Arizona, Rev. Stats 1901, U 1532. c Arkansas, Dig. of Stats. 1904 (Kirby), §§6342, 6353, 6354 d Colorado, Rev. Stats. 1908, C. C. P. §179. e Idaho, Rev. Codes 1909, §4329 tlowa, Ann. Code 1897, §3822. g Kansas, Gen. Stats. 1905 (Dassler), §5149 h Minnesota, Rev. Laws 1905, § 4262. i Missouri, Ann. Stats. 1906, § 753. Mon tana, Rev. Codes 1907, § 6698. J Nebraska, Comp. Stats. Ann. 1909, § 6816 Ann. Stats. 1909 (Cobbey), §1248. k Nevada, Comp. Laws Ann. 1900 (Cut ting), § 3241. i North Dakota, Rev. Codes 1905, § 6989. m Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §4441; Comp. Laws 1909 (Snyder), §5772. "Oregon, Ann. Codes and Stats. 1902 (Bel. & Cot), §1081. South Dakota, Rev. Codes 1903, C. C. P. § 227. "Texas, Civ. Stats. 1897 (Sayles), Art. 1465. Utah, Comp. Laws 1907, §3114. p Washington, Code 1910 (Rem. & Bal.), §741. q Wisconsin, Stats. 1898 (San. & Ber. Ann.), §2787. r Wyoming, Rev. Stats. 1899, § 4054. a Alaska, § 753. A receiver may be ap- solvency, or has forfeited its corporate pointed in any civil action, or proceed- rights; ing, other than an action for the recov- Fifth In the cases when a deMor has ery of specific personal property— been dec lared insolvent. First. Provisionally, before judgment, t . . „«„« on the application of either party, when 4 b Arlz °™> H 1532. Judges of the dis- his right to the property which is the trlct courts ' ln term time or in vacation, subject of the action, or proceeding, and may appoint a receiver in suits, pending which is in the possession of an adverse in sald courts - when no other adequate party, is probable, and the property or [ emedy ' s ^iven by law for the protec- ts rents or profits are in danger of being tion and preservation of property, or the lost or materially injured or impaired; " ghts of Parties therein pending litiga- . ,. , , . . . tion in respect thereto. Second. After judgment, to carry the same into effect; cl Arkansas, § 6342. Whenever it shali Third. To dispose of the property ac- not be forbidden by law, and shall be cording to the judgment, or to preserve deemed fair and proper in any case in it during the pendency of an appeal, or equity, the court, judge or chancellor when an execution has been returned sha11 appoint some prudent and discreet unsatisfied, and the debtor refuses to Person as receiver. * * * apply his property in satisfaction of the c2 Arkansas, § 6353, substantially same judgment or decree; as sub. 1, Cal. C. C. P. § 564, except add Fourth. In cases provided in this at the end, "the court may appoint a re- code, or by other statutes, when a cor- ceiver to take charge thereof during the poration has been dissolved or is in- pendency of the action, and may order bclve.it, or in imminent danger of ln- and coerce the delivery of it to him." 1704 RECEIVERS. [Tit. XV. c3 Arkansas, § 6354, substantially same as sub. 2, Cal. C. C. P. § 564. d Colorado, C. C. P. § 179. A receiver may be appointed by the court in which the action is pending, or by a judge thereof, or, pending proceedings in the supreme court upon appeal or writ of error, by the court from whose final judgment such appellant proceedings are prosecuted, or by the judge of such court: First, before judgment, provision- ally, on application of either party, when he establishes a prima facie right to the property, or to an interest in the prop- erty, which is the subject of the action, and which is in possession of an adverse party, and the property, or its rents and profits, are in danger of being lost, or materially injured or impaired. Second, after judgment to dispose of the prop- erty according to the judgment, or to preserve it during the pending of an ap- peal; and third, in such other cases as are in accordance with the practice of courts of equity jurisdiction. e Idaho, § 4329, substantially same as Cal. C. C. P. § 564, except in the opening passage in line two after "pending" in- sert "or has passed to judgment." (Amended Mch. 5, 1909, Session Laws 1909, p. 26.) f Iowa, § 3822. On the petition of either party to a civil action or proceed- ing, wherein he shows that he has a probable right to, or interest in, any property which is the subject of the con- troversy, and that such property, or its rents or profits, are in danger of being lost or materially injured or impaired, and on such notice to the adverse party as the court or judge shall prescribe, the court, or, in vacation, the judge thereof, if satisfied that the interests of one or both parties will be thereby promoted, and the substantial rights of neither un- duly infringed, may appoint a receiver to take charge of and control such prop- erty under its direction during the pend- ency of the action, and may order and coerce the delivery of it to him. Upon the hearing of the application, affidavits, and such other proof as the court or Judge permits, may be introduced, and upon the whole case such order made as will be for the best interest of all par- ties concerned. e Kansas, § 5149. A receiver may be appointed by the supreme court, the dis- trict court, or any Judge of either, or in the absence of said Judges from the county, by the probate judge: [Subs. 1 to 6, inclusive, substantially same as Cal. C. C. P. § 564.] (Amended Mch. 12, 1909, Laws 1909, p. 329, C. C. P. § 266.) h Minnesota, § 4262. A receiver may be appointed in the following cases: 1. Before judgment, on the application of any party to the action who shall show an apparent right to property which is the subject of such action and is in the possession of an adverse party, and the property, or its rents and profits, are in danger of loss or material impairment, except in cases wherein judgment upon failure to answer may be had without application to the court. 2. By the judgment, or after judgment, to carry the same into effect, or to pre- serve the property pending an appeal, or when an execution has been returned un- satisfied and the judgment debtor refuses to apply his property in satisfaction of the judgment. 3. In the cases provided by law, when a corporation is dissolved, or is insolvent or in imminent danger of insolvency, or has forfeited its corporate rights; and, in like cases, of the property within this state of foreign corporations. 4. In such other cases as are now pro- vided by law, or are in accordance with the existing practice, except as otherwise prescribed in this section. i Missouri, §753. The court, or any judge thereof in vacation, shall have power to appoint a receiver, whenever such appointment shall be deemed neces- sary, whose duty it shall be to keep and preserve any money or other thing de- posited in court, or that may be the subject of a tender, and to keep and preserve all property and protect any business or business interest intrusted to him pending any legal or equitable pro- ceeding concerning the same, subject to the order of court. i Nebraska, § 6816. A receiver may be appointed by the supreme court, or the district court, or by the judge of either, in the following cases: First, in an action by a vendor to vacate a fraudulent pur- chase of property, or by a creditor to subject any property or fund to his claim, or between partners or others jointly owning or interested in any prop- erty or fund, on the application of any party to suit, when the property or fund ia in danger of being lost, removed, or Ch. CXXV.] CODE PROVISIONS. 170.") materially Injured; second, in an action for the foreclosure of a mortgage, when the mortgaged property is in danger of oeing lost, removed, or materially in- jured, or is probably insufficient to dis- charge the mortgage debt; third, after judgment, or decree to carry the same into execution, or to dispose of the prop- erty according to the decree or judg- ment, or to preserve it during the pend- ency of an appeal; fourth, in all cases provided for by special statutes; fifth, in all other cases where receivers have heretofore been appointed by the usages of courts of equity. k Nevada, § 3241. A receiver may be appointed by the court in which the ac- tion is pending, or by a judge thereof: First, before judgment, provisionally, on the application of either party, when he establishes a prima facie right to the property, or an interest in the property which is the subject of the action, and which is in the possession of an adverse party, and the property or its rents and profits are in danger of being lost or ma- terially injured or impaired; second, after judgment to dispose of the prop- erty according to the judgment, or to preserve it during the pendency of an appeal; and, third, in such other cases as are in accordance with the practice of courts of equity jurisdiction. 'l North Dakota, § 6989, substantially same as Cal. C. C. P. § 564, except in sub. 5, line one after "cases" insert "provided in this code"; and also at the end of sub. 5, add "and in like cases within this state, of foreign corpora- tions." m Oklahoma, § 4441, opening passage same as Kansas § 5149, remainder sub- stantially same as subs. 1 to 6 inclusive, Cal. C. C. P. § 564. n Oregon, § 1081, substantially same as Alaska C. C. P. § 753. o Texas, Art. 1465, substantially same as Cal. C. C. P. § 564, except substitute for the opening passage the words "Re- ceivers may be appointed by any judge of a court of competent jurisdiction in this state in the following cases"; also omit subs. 3 and 4 of Cal. C. C. P. § 564, and renumber subs. 5 and 6 to 3 and 4 respectively. p Washington, § 741. A receiver may be appointed by the court in the follow- ing cases: 1. In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to his claim; 2. In an action between partners, oi other persons jointly interested in anj property or fund; 3. In all actions where it is shown that the property, fund, or rents and profits in controversy are in danger of being lost, removed, or materially injured; 4. In an action by a mortgagee for the foreclosure of a mortgage and the sale of the mortgaged property, when it appears that such property is in danger of being lost, removed, or materially injured; or when such property is insufficient to dis- charge of the debt, to secure the applica- tion of the rents and profits accruing, before a sale can be had; 5. When a corporation has been dis- solved or is insolvent, or is in imminent danger of insolvency, or has forfeited its corporate rights; 6. And in such other cases as may be provided for by law, or when, in the dis- cretion of the court, it may be necessary to secure ample justice to the parties; provided, that no party or attorney or other person interested in an action shall be appointed receiver therein. q Wisconsin, § 27S7. A receiver may be appointed: 1. Before judgment, on the applica- tion of either party, when he establishes an apparent right to or interest in prop- erty which is the subject of the action and which is in the possession of an ad- verse party, and the property or its rents and profits are in danger of being lost or materially impaired. 2. By the judgment, or after judgment, to carry the judgment into effect or to dispose of the property according to the judgment. 3. After judgment, to preserve the property during the pendency of an ap- peal; or when an execution has been re- turned unsatisfied and the judgment debtor refuses to apply his property in satisfaction of the judgment or in an action by a creditor under section 3029. 4. In cases provided by any statute when a corporation has been dissolved or is insolvent or in imminent danger of in- solvency, or has forfeited its corporate rights. 5. In such cases as are now provided by law or may be in accordance with the existing practice except as otherwise provided in this chapter. 1706 RECEIVERS. [Tit. XV. r Wyoming, §4054. A receiver may be debtor refuses to apply the property in appointed by the district court or by a satisfaction of the judgment, judge thereof, in the following cases: 5. In the cases provided in this divis- [Subs. 1, 2 and 3 same as correspond- ion, and by special statute, when a ing sub-divisions in Cal. C. C. P. § 564.] corporation has been dissolved or is 4. After judgment, to dispose of the insolvent or in imminent danger of property according to the judgment or insolvency or has forfeited its corporate preserve it during the pendency of an rights. appeal, or when an execution has been 6. [Same as sub. 6 in Cal. C. C. P. returned unsatisfied, and the judgment i 564.] §435. PETITIONS AND ORDERS FOR LEAVE TO SUE. FORM No. 1041 — Petition for leave to sue a receiver. [Title of court and cause.] To the court for County : 1. The petition of respectfully shows to the court that on the day of , 19 , was, by an order of this court duly given and made, appointed receiver of the property and effects of , in an action then pending in this court [here state briefly the nature of the action] ; that thereafter said duly qualified as such, and that he is now the duly qualified and acting receiver in said matter. 2. That said receiver has now in his possession, claiming title thereto as such receiver, certain property [here describe the same] ; that your petitioner is in fact the owner of such property, but that his title thereto is denied by the said receiver. 3. That your petitioner has demanded of said receiver that he deliver up the said property to your petitioner, but that said receiver refuses so to do. 4. That your petitioner has fully and fairly stated the case [or all the facts] to , his counsel, whose address is at , and upon such statement he is advised by his said counsel, and verily believes, that he has a good and substantial cause of action against the said receiver to recover possession of said property. [Or state any other cause of action existing in favor of the petitioner and against said receiver.] Wherefore, your petitioner prays that leave may be granted to him to bring an action in the court for the county of , against said receiver, to recover the said property [or state the relief prayed for in the action] , and for such other relief thereupon as to the court may seem just. [Signature.] [Verification as in case of a pleading, where required.] Ch. CXXV.] PETITIONS, ETC.— LEAVE TO SUE. 1707 FORM No. 1042 — Certificate of attorney as to merits. I, , attorney for said petitioner, do hereby certify that I have examined [or know of my own knowledge] all the facts set forth in the foregoing petition, and that in my opinion the petitioner has a valid and meritorious cause of action thereon. A. B., Attorney for D. E., Receiver, etc. FORM No. 1043 — Order granting leave to sue a receiver. [Title of court and cause.] The petition of , having come on to be heard before this court, appearing for the said petitioner, and appearing for the said receiver [or, no one appearing in opposition], and the court being now fully advised in the premises : It is ordered, that leave be and the same is hereby granted to the said to sue said receiver, as prayed in said petition. By the court. [Date.] S. T., Judge. FORM No. 1044 — Petition of receiver for leave to sue. [Title of court.] In the matter of the application > of , as receiver of , for leave to bring an action against . [Or the applica- tion may be under the title in the action or proceeding in which the receiver was ap- pointed.] To the court of the state of , in and for the county of : Your petitioner herein, , as receiver of , respectfully shows : 1. That on the day of , 19 , by order duly given, made, and entered in the court, your petitioner was duly appointed receiver of [here state the facts relating to the appoint- ment of the receiver] ; that thereafter your petitioner qualified as such, and that he is now the duly appointed, qualified, and acting receiver in said matter. 1708 RECEIVERS. [Tit. XV. 2. That your petitioner is advised, and verily believes, that he, as such receiver, has a good cause of action against , by reason of the following facts : [Here state concisely, in the form of a com- plaint, the facts constituting the cause of action.] 3. That your petitioner, upon diligent inquiry, is informed and believes, and, upon such information and belief, alleges, that the said is solvent, and that the said claim is collectable from him by means of an action [or otherwise indicate to the court why the action, if prosecuted, will be of advantage to the estate represented by the receiver]. 4. That your petitioner has sufficient property of said estate, con- sisting of [here specify what property is in the receiver's hands], to secure the said for any costs which he may recover from your petitioner if such action is unsuccessful. [If the receiver was appointed in supplementary proceedings, state that this application is presented at the instance of a creditor, and aver a written request of such creditor, where required by statute, that said action be brought, and annex such request.] 5. [Add, if this application is the first made :] That no previous application for such leave has been made. Wherefore, your petitioner prays for leave to bring an action as such receiver in the court against the said , on the cause of action hereinbefore stated. Dated , 19 . , Keceiver, etc., petitioner. A. B., Attorney for receiver. [Verification in the form required for a complaint.] FORM No. 1045 — Order authorizing receiver to sue. [Title of court and cause, etc.] On reading and filing the verified petition of , receiver for , asking for leave to bring an action against on the fol- lowing cause of action: [Here state briefly the nature of the action] ; and on due proof of proper service of a notice of motion upon this application on [here state persons on whom notices of motion were served, if any], and after hearing , attorney for said receiver, in favor of said motion, and , attorney for , in opposition thereto [if any opposition is made], and the court Ch. CXXV.] COMPLAINTS [OR PETITIONS].— FORMS. 1709 being satisfied that the receiver ought to be authorized to bring such action : Now, on motion of , attorney for said receiver, it is hereby ordered, that said , as such receiver, be and he is hereby authorized and directed to commence and prosecute an action in such court as he may be advised by his counsel, against the said , to recover upon said [here state the debt or demand to be sued upon], and such other and further relief therein as may be proper. [If security for costs is required, add a provision to that effect ; or if the receiver has sufficient funds in his hands to pay such costs, add, where permitted by statute or by rule of court, that security for costs is dispensed with by reason of the fact that the receiver has sufficient to pay such costs.] Dated , 19 . S. T., Judge. §436. COMPLAINTS [OR PETITIONS]. FORM No. 1046 — By a receiver appointed by a court in an action. [Title of court] John Doe, as receiver [etc.],' plaintiff, v. Richard Roe, defendant. The plaintiff complains of the defendant, and alleges : 1. [State the original cause of action.] 2. That on the day of , 19 , at , the plaintiff was, by an order duly given and made in the court of the county of , state of , in a certain action then pending between A. B., plaintiff, and C. D., defendant, numbered , appointed receiver of [state the property, so as to include that involved in the present cause of action]. 3. That on the same day [or on the day of , 19 ,] he duly qualified as, and now is, such receiver. 4. That [plaintiff demanded payment of said , but] defend- ant has not paid the same, nor any part thereof. [Concluding part.] 1710 RECEIVERS. [Tit. XV. FORM No. 1047 — By receiver of a mining corporation to recover assets belonging thereto. (Modified to meet suggestions in the opinion: Allen v. Baxter, 42 Wash. 434; 85 Pac. 26.) [Title of court and cause.] Plaintiff complains of defendant, and for cause of action alleges : 1. That the De Soto Placer Mining Company is a foreign corpora- tion, organized under the laws of the state of West Virginia, and authorized to transact business in the state of Washington. 2. That during all the times hereinafter mentioned, and until the appointment of a receiver, the said corporation was maintaining an office in the city of Seattle, King County, Washington, where service could be had upon the said corporation. 3. That on the 29th day of March, 1904, the defendant herein, Marion B. Baxter, filed her complaint in this court against the said De Soto Placer Mining Company as- defendant, which said action is docketed and numbered as No. 42,347, wherein she is to recover from the said defendant for services rendered, the sum of $3,000. 4. That afterwards, to wit, on March 30, 1904, a writ of attach- ment against the certain property of the said De Soto Placer Mining Company hereinafter described was sued out, and issued and directed to Frank P. Brewer, sheriff of Snohomish County, Washington, for service ; that the said Frank P. Brewer, as said sheriff, made service of the said writ of attachment by filing the same with the auditor of the said Snohomish County; that the said De Soto Placer Mining Company duly entered its appearance by general denial in the said action. 5. That afterwards, to wit, on the 20th day of October, 1904, judg- ment was rendered in favor of the said Marion D. Baxter and against the said De Soto Placer Mining Company in the sum of $3,000, with interest. 6. That on the 20th day of October, 1904, a writ of execution against the property hereinafter described was issued out of this court and directed to the said Frank P. Brewer, as sheriff of the said Snohomish County, for execution, and service of said writ was made by filing the same with the auditor of said county. 7. That on the 23d day of July, 1904, one Arthur G. Mather was regularly appointed as receiver for all the property and assets of the said De Soto Placer Mining Company, in an action wherein one Ch. CXXV.] COMPLAINTS [OR PETITIONS].— FORMS. 1711 Louis L. Lang was plaintiff, and the said De Soto Placer Mining Company was defendant. 8. That afterwards, to wit, on the day of November, 1904, the said Arthur G. Mather was, at his own request, removed as said receiver, and the plaintiff herein was, on the 16th day of November, 1904, by order of the Hon. George E. Morris, judge of the said supe- rior court of King County, Washington, appointed as receiver of the property and assets of the said De Soto Placer Mining Company. 9. That the plaintiff before the commencement of this action duly made and filed his oath and qualified as such receiver, and that he is now, and during all the times since said last-named date has been, the duly qualified and acting receiver of the said De Soto Placer Mining Company. 10. That at the time of the filing of the suit of the said Marion B. Baxter against the said De Soto Placer Mining Company, and at the time of the issue and service of the writ of attachment thereunder, and at the time of the issue and service of the writ of execution and the judgment obtained in said suit, the said De Soto Placer Mining Company was wholly insolvent. 11. That prior to all the dates hereinbefore mentioned, to wit, on or before the month of November in the year 1903, practically all of the real estate and personal property of the said company had been conveyed, transferred, and leased to the said company. 12. That the debts and liabilities due from the said company to its creditors at the time of the filing of the said Marion B. Baxter's complaint aggregated approximately the sum of $90,000, and the property and assets at that time belonging to the said company did not then exceed in value, and do not now exceed in value, the sum of $10,000, including the property hereinafter described; that the fol- lowing is a description of the property attached and levied upon ia the proceedings commenced by the said Marion B. Baxter aforesaid, to wit : [Then follows a long list of real property and mining claims located in Snohomish County, Washington.] 13. That the said Frank P. Brewer, as sheriff of Snohomish County, is authorized to sell the property hereinbefore described in the said writ of attachment under said execution. 14. That there is little or no property of the said company; that should sale be made of the property hereinbefore described, and pro- ceeds thereof appropriated, the said Marion B. Baxter will receive 1712 RECEIVERS. [Tit. XV. approximately the full amount of her claim against the said com- pany, while the other creditors herein will take nothing. Wherefore, the plaintiff prays : That the claim of the said Marion B. Baxter be declared a general claim against the said corporation; that the levy under the writ of attachment and the levy of the writ of execution sued out by these defendants be dissolved and set aside; that the property herein be given into the control of the receiver as- an asset of the said corporation; and that the plaintiff, as such receiver, be given judgment for his costs herein incurred. Byers & Byers, and Clay Allen, [Verification.] Attorneys for plaintiff. FORM No. 1048 — Action against a receiver. [Title of court.] John Doe, plaintiff, v. Richard Roe, as receiver [state in what case and of what], defendant. The plaintiff complains of the defendant, and alleges: 1. [State the cause of action.] 2. That the defendant is the receiver, duly appointed, qualified, and acting, in [state what case and of what] . 3. [Here allege that leave to sue the receiver upon said cause of action was, upon due application to the court, granted.] 4. That [plaintiff demanded payment of said , but] said sum has not been paid, nor any part thereof. [Concluding part] §437. ANNOTATIONS. Averment of appointment. — Where a complaint alleges that the order appointing a receiver was "duly made" by the superior court, this, under the rule of pleading declared in section 456 of the Code of Civil Procedure of California, is equivalent to an averment that all the jurisdictional prerequisites to the appointment of a receiver existed: Title Insurance etc. Co. v. Grider, 152 Cal. 746, 94 Pac. 601, 602, (by receiver, to recover moneys from sale of lots). Adverse party essential to proceedings. — The provisions of the Colorado statute relating to the appointment of receivers — Code Civ. Proa, §§ 141 (subs. 1, 3), 142 — are construed to be no more than a codification of the law in practice governing the appointment of receivers before their enactment; and it is evidently necessary to this jurisdiction in all these proceedings that there be an adverse party whose right* Ch. CXXVI.] ANNOTATIONS.— CODE PROVISIONS. 1713 to certain property are to be protected and adjudicated: Jones v. Bank of Leadville, 10 Colo. 464, 17 Pac. 272, 276. When court may appoint receiver of Its own motion. — Where an action is brought under a statute providing in itself for the appointment of a receiver, where a cer- tain state of facts exists, — as, for example, the insolvency of a banking corporation, — the court will appoint a receiver as a part of the relief sought by the action, and this even though the pleadings offer no issue in that behalf: People v. Bank of San Luis Obispo, 154 Cal. 194, 203, 97 Pac. 306. Receivers to administer affairs of corporations. — When appointment invalid. — Courts have no jurisdiction to appoint a receiver except in a suit pending in which a receiver Is desired, unless empowered by statute. Under this doctrine, proceed- ings instituted upon the ex-parte application of a corporation for the appointment of a receiver to take charge of the property of the corporation and control and protect the same are invalid; for to permit this would be to make corporations the administrators of every estate where the owners thereof were incapable or unwill- ing to administer them themselves: Jones v. Bank of Leadville, 10 Colo. 469, 17 Pac. 272, 276. For cases illustrating the same doctrine, see Baker v. Backus, 32 111. 79; Davis v. Flagstaff, 2 Utah 74; French Bank case, 53 Cal. 495; Kimball v. Goodburn, 32 Mich. 10. Collateral attack of order appointing receiver. — An order appointing a receiver can not be collaterally attacked upon any ground except of a want of jurisdiction to make it: Title Insurance etc. Co. v. Grider, 152 Cal. 746, 94 Pac. 601, 602, (by receiver to recover moneys from sale of lots). For actions by and against receivers after their discharge, see note to 7 Am. & Eng. Ann. Cas. 44. CHAPTER CXXVI. Deposit in Court. Page § 438. Code provisions 1713 Form No. 1049. Motion to deposit money [or other personal property] in court 1714 Form No. 1050. Order for deposit in court, or the delivery to another party, of money or other prop- erty 1715 §438. CODE PROVISIONS. Deposit in Court. California, § 572. When it is admitted by the pleadings, or shown upon the examination of a party to the action, that he has in his pos- session, or under his control, any money or other thing capable of delivery, which, being the subject of litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same, upon motion, to be deposited in court or delivered to such party, upon such conditions as may be just, subject to the further direction of the court. (Kerr's Cyc. Code Civ. Proc. Amended March 20, 1907, Stats, and Amdts. 1907, p. 710.) 1714. DEPOSIT IN COURT. [Tit. XV. The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Arizona, Rev. Stats. 1901, If 1528. Arkansas, Dig. of Stats. 1904 (Kirby), §6358. Colorado, Rev. Stats. 1908, C. C. P. §178. Hawaii, Rev. Laws 1905, § 1759. Idaho, Rev. Codes, 1909, § 4339. t> Kansas, Gen. Stats. 1905 (Dassler),. §5154. c Minnesota, Rev. Laws 1905, §4263. Montana, Rev. Codes 1907, § 6705. Nevada, Comp. Laws Ann. 1900 (Cutting), § 3240. a North Dakota, Rev. Codes 1905, §6994. e Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §4446; Comp. Laws 1909 (Snyder), §5777. « South Dakota, Rev. Codes 1903, C. C. P. §233. Utah, Comp. Laws 1907, §3120. s Washington, Code 1910 (Rem. & Bal.), §745. h Wisconsin, Stats. 1898 (San. & Ber. Ann.), §2793. i Wyoming, Rev. Stats. 1899, §4059. a Arizona, H 1528, substantially same tempt, and may also require the sheriff as Cal. C. C. P. § 572. (Amended Mch. or other proper officer to take the money 19, 1903, Laws 1903, pp. 157, 15S.) or property and deposit or deliver it in b Kansas, § 5154, substantially same as accordance with the direction given." Cal. C. C. P. § 572, except in the third d North Dakota, § 6994, substantially line from the end, omit the words "upon same as Kansas § 5154. motion" after "same"; and in the fol- e Oklahoma, §4446, substantially same lowing line after "party" substitute for as Kansas § 5154. "upon such conditions as may be just" t South Dakota, C. C. P. § 233, substan- the words "with or without security." tially same as Kansas § 5154. (Re-enacted Mch. 12, 1909, Laws 1909, p. g Washington, § 745, substantially same 329, C. C. P. § 271.) as Kansas § 5154. c Minnesota, § 4263, substantially same h Wisconsin, § 2793, substantially same as Kansas § 5154, except add at the end as Kansas § 5154. "If such order be disobeyed, the court i Wyoming, § 4059, substantially same may punish the disobedience as a con- as Kansas § 5154. FORM No. 1049 — Motion to deposit money [or other personal property] in court. [Title of court and cause.] Now comes , [defendant,] in the above-entitled action and moves the court for an order directing him, the said defendant, to deposit the sum of $ [or other personal property, describing it] in court [or with such party as may be authorized to receive the same], to abide the determination of this action : [Or state any other conditions.] Said motion is made upon the grounds that the said money [etc.] is held by defendant as trustee for , [or that said money (etc.) belongs to ,] and that defendant has disclaimed in his [answer] herein any interest therein or right thereto as ap- pears from the papers and proceedings herein. A. B., Attorney for defendant. Ch. CXXVI.] MOTION AND ORDER.— FORMS. 1715 FORM No. 1050— Order for deposit in court, or the delivery to another party, of money or other property. [Title of court and cause.] It appearing to the satisfaction of the court that has in his possession [or under his control] the sum of $ [or the follow- ing-described personal property, to wit: (Here describe tfce same)], which sum [or property] is the subject of litigation in this action; that the same is held by him as trustee for , [or which belongs to, or is due to] , and that he, said , [trustee,] disclaims any interest therein [or it appearing on the examination of said that he has no interest therein] : Now, on motion of , the attorney for , it is ordered, that said deposit said money in court [or deliver the said property to , who is hereby authorized to receive the same,] upon the following conditions: [Describe them], [he, the said receiver thereof, to hold the same] subject to the further direction and orders of the court. [Date.] S. T., Judge. TITLE XVI. Compensatory and Specific Relief. Page Chapter CXXVII. Damages 1716 CXXVIII. Penalties and Forfeitures 1744 CXXIX. Specific Performance 1755 CXXX. Kevision or Reformation of Contracts 1775 CXXXI. Rescission 1782 CXXXII. Cancelation of Instruments 1791 [For preventive relief, see Injunction, ch. CXXIII.] CHAPTER CXXVII. Damages. Page § 439. Nature and extent of compensatory relief 1716 § 440. Interest as damages 1719 § 441. Damages for breach of contracts, generally 1722 § 442. Damages for breach of carriers' obligations 1724 § 443. Damages for breach of contracts relating to real property 1725 § 444. Damages for breach of contracts relating to personal property. . 1728 § 445. Damages for wrongs 1730 § 446. Penal damages 1737 § 447. Annotations 1742 §439. NATURE AND EXTENT OF COMPENSATORY RELIEF. Species of relief provided by the code. California, § 3274. As a general rule, compensation is the relief or remedy provided by the law of this state for the violation of private rights, and the means of securing their observance; and specific and preventive relief may be given in no other cases than those specified in this part [relating to relief] of the Civil Code. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6038. North Dakota, Rev. Codes 1905, § 6554. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2721; Comp. Laws 1909 (Snyder), §2879. South Dakota, Rev. Codes 1903, C. C. §2284. Person suffering detriment may recover damages. California, § 3281. Every person who suffers detriment from the unlawful act or omission of another, may recover from the person (1716) Ch. CXXVII.] COMPENSATORY RELIEF. jjjj in fault a compensation therefor in money, which is called damages. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6040. North Dakota, Rev. Codes 1905, § 6556. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2723; Comp. Laws 1909 (Snyder), § 2881. South Dakota, Rev. Codes 1903, C. C. § 2286. Detriment defined. California, § 3282. Detriment is a loss or harm suffered in person or property. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6041. North Dakota, Rev. Codes 1905, § 6557. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2724; Comp. Laws 1909 (Snyder), § 2882. South Dakota, Rev. Codes 1903, C. C. § 2287. Detriment resulting, or certain, after suit brought. California, § 3283. Damages may be awarded, in a judicial pro- ceeding, for detriment resulting after the commencement thereof, or certain to result in the future. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6042. North Dakota, Rev. Codes 1905, § 6558. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2725; Comp. Laws 1909 (Snyder), § 2883. South Dakota, Rev. Codes 1903, C. C. § 2288. Value, how estimated in favor of seller. California, § 3353. In estimating damages, the value of the prop- erty to a seller thereof is deemed to be the price which he could have obtained therefor in the market nearest to the place at which it should have been accepted by the buyer, and at such time after the breach of the contract as would have sufficed, with reasonable dili- gence, for the seller to effect a resale. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6084. North Dakota, Rev. Codes 1905, § 6597. Oklahoma. Rev. and Ann. Stats. 1903 (Wilson), §2764; Comp. Laws 1909 (Snyder), § 2922. South Dakota, Rev. Codes 1903, C. C. § 2327. Limitation of damages. California, § 3358. Notwithstanding the provisions of this chap- ter, [as to measure of damages] no person can recover a greater amount in damages for the breach of an obligation than he could Jury's PI.— 109. j 7 1 S DAMAGES. [Tit. XVI. have gained by the full performance thereof on both sides, except in the cases specified in the articles on exemplary damages and penal damages, and in section thirty-three hundred and nineteen, thirty- three hundred and thirty-nine, and thirty-three hundred and forty. (Kerr's Cyc. Civ. Code.) For sections referred to in the above section, see page 1723 (§ 3319), page 1734 (§ 3339), page 1738 (§ 3340), and page 1737 et seq., (sections relating to exemplary damages). The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6086. North Dakota, Rev. Codes 1905, § 6599. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2766; Comp. Laws 1009 (Snyder), § 2924. South Dakota, Rev. Codes 1903, C. C. § 2329. Damages to be reasonable. California, § 3359. Damages must, in all cases, be reasonable, and where an obligation of any kind appears to create a right to uncon- scionable and grossly oppressive damages, contrary to substantial justice, no more than reasonable damages can be recovered. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: Montana, Rev. Codes 1907, § 6087. North Dakota, Rev. Codes 1905, § 6600. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2767; Comp. Laws 1909 (Snyder), § 2925. South Dakota, Rev. Codes 1903, C. C. § 2330. » Wisconsin, Stats. 1898 (San. & Ber. Ann.), § 2887. a Wisconsin, §2887. Whenever dam- which he might have heretofore recov- ages are recoverable the plaintiff may ered for the same cause of action, ex- claim and recover, if he show himself cept as provided otherwise in special entitled thereto, any rate of damages cases. Nominal damages. California, § 3360. When a breach of duty has caused no appre- ciable detriment to the party affected, he may yet recover nominal damages. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6088. North Dakota, Rev. Codes 1905. § 6601. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2768; Comp. Laws 1909 (Snyder), §2926. South Dakota, Rev. Codes 1903, C. C. §2331. Ch. CXXVII.] INTEREST AS DAMAGES. 1719 §440. INTEREST AS DAMAGES. Interest recoverable with damages. California, § 3287. Every person who is entitled to recover dam- ages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor, from paying the debt. The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6043. North Dakota, Rev. Codes 1905, § 6559. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2726; Comp. Laws 1909 (Snyder), § 2884. South Dakota, Rev. Codes 1903, C. C. § 2289. Interest in actions not arising from breach of contract. California, § 3288. In an action for the breach of an obligation not arising from the contract, and in every case of oppression, fraud, or malice, interest may be given, in the discretion of the jury. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Missouri, Ann. Stats. 1906, §2869. Montana, Rev. Codes 1907, §6044. b New Mexico, Comp. Laws 1897, § 3219. North Dakota, Rev. Codes 1905. §6560. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2727; Comp. Laws 1909 (Snyder), §2885. South Dakota, Rev. Codes 1903, C. C. §2290. a Missouri, § 2869. The jury on the over and above the value of the goods at trial of any issue, or on any inquisition the time of the conversion or seizure, of damages, may, if they shall think fit, b New Mexico, § 3219, substantially give damages, in the nature of interest, same as Missouri § 2869. Rate stipulated by contract — When superseded. California, § 3289. Any legal rate of interest stipulated by a con- tract remains chargeable after a breach thereof, as before, until the contract is superseded by a verdict or other new obligation. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Arizona, Rev. Stats. 1901, II 2774. b Arkansas, Dig. of Stats. 1904 (Kirby), §5388. c Colorado, Rev. Stats. 1908, §3163. Montana, Rev. Codes 1907, 1720 DAMAGES. [Tit. XVI. §6045. I Nebraska, Comp. Stats. Ann. 1909, §4119; Ann. Stats. (Cobbey), §6752. J Nevada, Comp. Laws Ann. 1900 (Cutting), §2746. k New Mexico, Comp. Laws 1897, § 2551. North Dakota, Rev. Codes 1905, § 5515. Oklahoma. Rev. and Ann. Stats. 1903 (Wilson), § 851; Comp. Laws 1909 (Snyder), § 1158. South Dakota, Rev. Codes 1903, C. C. § 1421. I Utah, Comp. Laws 1907, § 1241x9. m Washington, Code 1910 (Rem. & Bal.), § 457. a Arizona, U 2774. In the absence of an agreement in writing, signed by the debtor, interest shall be paid at the rate of six per cent per annum on money due on any bond, bill, promis- sory note, or other instrument in writ- ing, on judgments, on money lent, on the sum due on accounts stated, on the sum due from the time it is audited from the territory, any county, city or village; provided, however, a different rate of interest, not to exceed twelve per cent per annum, if agreed to in writ- ing, signed by the payor, shall be paid. A judgment rendered on such agree- ment shall bear the rate of interest provided for in the agreement, and it shall be so specified in the judgment. Any person so contracting for a greater rate of interest than twelve per cent per annun shall forfeit all inter- est so contracted for in excess of such twelve per cent; and in addition there- to, shall forfeit a sum of money to be deducted from the amount due for prin- cipal and lawful interest, equal to the amount of interest contracted for in excess of twelve per cent per annum. All payments of money or property made by way of usurious interest, or of inducements to contract for more than twelve per cent per annum, whether made in advance or not, shall be deemed and taken to be payments made on account of the principal and twelve per cent per annum, and the courts shall render judgment for no greater sum than the balance found due after deducting the payments of money or property made as aforesaid. (Amended March 18, 1909, Laws 1909, p. 221.) b Arkansas, § 5388. Judgments or de- crees upon contracts bearing more than six per cent interest shall bear the same interest as may be specified in such contracts and the rate of interest shall be expressed in such judgments and decrees and all other judgments and decrees shall bear interest at the rate of six per cent per annum until satis- faction is made; provided, no judgment rendered or to be rendered against any county in the state on county warrants or other evidences of county indebted- ness shall bear any interest after the passage of this act. c Colorado, § 3163. The parties to any bond, bill, promissory note, or other in- strument of writing, may stipulate therein for the payment of a greater or higher rate of interest than eight per centum per annum, and any such stip- ulation may be enforced in any court of competent jurisdiction in the state. d Iowa, § 3039. Interest shall be al- lowed on all money due on judgments and decrees of courts at the rate of six cents on the hundred by the year, un- less a different rate is fixed by the con- tract on which the judgment or decree is rendered, in which case the judgment or decree shall draw interest at the rate expressed in the contract, not ex- ceeding eight cents on the hundred by the year, which rate must be expressed in the judgment or decree. e Kansas, § 3721. When a rate of in- terest is specified in any contract, that rate shall continue until full payment is made, and any judgment rendered on any such contract shall bear the same rate of interest mentioned in the contract, which rate shall be specified in the judgment; but in no case shall such rate exceed ten per cent per annum, and any bond, note bill, or other contract for the payment of money, which in effect provides that any interest or any higher rate of in- terest shall accrue as a penalty for any default, shall be void as to any such provision. t Minnesota, § 2733. The interest for any legal indebtedness shall be at the rate of six dollars upon one hundred dol- lars for a year, unless a different rate is contracted for in writing; and no person shall directly or indirectly take or re- ceive in money, goods, or things in ac- tion, or in any other way, any greater sum, or any greater value, for the loan «r forbearance of money, goods, or things in action, than ten dollars on one hundred dollars for one year; and In the Ch. CXXVII.] INTEREST AS DAMAGES. 1721 computation of interest upon any bond, note, or other instrument or agreement interest shall not be compounded, but any contract to pay interest, not usurious, upon interest overdue, shall not be con- strued to be usury. Contracts shall bear the same rate of interest after they become due as before, and any pro- vision in any contract, note, or instru- ment providing for an increase of the rate of interest after maturity, or any increase therein after making and deliv- ery, shall work a forfeiture of the entire interest; but this provision shall not ap- ply to notes or contracts which bear no interest before maturity. g Missouri, § 3707. Interest shall be allowed on all money due upon any judg- ment or order of any court, from the day of rendering the same until satisfaction be made by payment, accord or sale of property; all such judgments and orders for money upon contracts bearing more than six per cent interest shall bear the same interest borne by such contracts, and all other judgments and orders for money shall bear six per cent per an- num until satisfaction made, as afore- said. h Montana, § 6045, substantially same as Cal. Civ. Code § 32S9, except in the last line after "verdict" the word "or" is printed "of." i Nebraska, § 4119. Interest on all de- crees and judgments for the payment of money shall be from the date of the ren- dition thereof at the rate of seven dol- lars upon each one hundred dollars an- nually until the same shall be paid; pro- vided, that if said judgment or decree shall be founded upon any contract, either verbal or written, by the terms of which a greater rate of interest, not ex- ceeding the amount allowed by law, than seven per centum shall have been agreed upon, the rate of interest upon such judgi.ient or decree shall be the same as provided for by the terms of the con- tract upon which the same was founded. i Nevada, § 2746. Parties may agree, in writing, for the payment of any rate of interest whatever on money due, or to become due, on any contract. Any judgment rendered on such contract, shall conform thereto, and shall bear the in- terest agreed upon by the parties, and which shall be specified in the judgment; provided, only the amount of the origi- nal claim or demand shall draw interest after judgment. k New Mexico, § 2551. Judgments and decrees for the payment of money shall draw the same rate of interest with the contract on which they are rendered, and such rate, if other than six per cent shall be expressed in the judgment or decree, but no judgment or decree shall draw more than twelve per cent interest. 1 Utah, § 1241x9. Any judgment ren- dered on a lawful contract shall conform thereto and shall bear the interest agreed upon by the parties, which shall be specified in the judgment; other judg- ments shall bear interest at the rate of eight per cent per annum, which shall be specified in the judgment. m Washington, § 457. Judgments here- after rendered founded on written con- tracts, providing for the payment of in- terest until paid at a specified rate, shall bear interest at the rate specified in such contracts, not in any case, how- ever, to exceed ten per cent per annum: Provided, that said interest rate is set forth in the judgment; and all other judgments shall bear interest at the rate of six per centum per annum from date of entry thereof. Acceptance of principal waives claim to interest. California, § 3290. Accepting payment of the whole principal, as such, waives all claim to interest. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: Montana, Rev. Codes 1907, § 6046. a North Dakota, Rev. Codes 1905, § 6561 Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2728; Comp. Laws 1909 (Snyder), §2886. South Dakota, Rev. Codes 1903, C. C. §2291. 1722 DAMAGES. [Tit. XVI a North Dakota, § 6561, substantially same as Cal. Civ. Code § 3290, except at the end after "interest" add "unless interest is expressly provided for in the contract." §441. DAMAGES FOR BREACH OF CONTRACTS, GENERALLY. Measure of damages for breach of contract. California, § 3300. For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Hawaii, Rev. Laws 1905, § 1745. Montana, Rev. Codes 1907, § 6048. b North Dakota, Rev. Codes 1905, §6563. c Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2730; Comp. Laws 1909 (Snyder), §2888. a South Dakota, Rev. Codes 1903, C. C. § 2293. a Hawaii, § 1745. The measure of dam- property, real or personal, the measure ages in all cases contemplated by section of damages shall be determined by the 1712, shall be according to the true legal jury. interpretation of the court upon the law, b North Dakota, § 6563, first sentence instrument, contract or agreement; and same as Cal. Civ. Code § 3300. in all cases of injury, direct or conse- c Oklahoma, § 2730, first sentence sub- quential, to the plaintiff in person, or stantially same as Cal. Civ. Code § 3300. his wife, child or servant, or to his, her, d South Dakota, Civ. Code § 2293, first or their character or feelings, or to his sentence same as Cal. Civ. Code § 3300. Damages must be ascertainable. California, § 3301. No damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and origin. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: Montana, Rev. Codes 1907, § 6049. a North Dakota, Rev. Codes 1905, § 6563. s> Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2730; Comp. Laws 1909 (Snyder), §2888. c South Dakota, Rev. Codes 1903, C. C. §2293. a North Dakota, § 6563, last sentence same as Cal. Civ. Code § 3301. b Oklahoma, § 2730, last sentence same as Cal. Civ. Code § 3301. <• South Dakota, C. C. 2293, last sentence same as Cal. Civ. Code § 3301. Ch.CXXVIL] BREACH OF CONTRACTS, GENERALLY. 1723 Detriment for breach of obligation to pay money. California, § 3302. The detriment caused by the breach of an ob- ligation to pay money only, is deemed to be the amount due by the terms of the obligation, with interest thereon. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Hawaii, Rev. Laws 1905, § 1745. Montana, Rev. Codes 1907, § 6050. North Dakota, Rev. Codes 1905. § 6564. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2731; Comp. Laws 1909 (Snyder), §2889. South Dakota, Rev. Codes 1903, C. C. § 2294. a Hawaii, § 1745, see note a to Cal. Civ. Code § 3300, page 1722. Breach of warranty of agent's authority. California, § 3318. The detriment caused by the breach of a war- ranty of an agent's authority, is deemed to be the amount which could have been recovered and collected from his principal if the warranty had been complied with, and the reasonable expenses oi. legal proceedings taken, in good faith, to enforce the act of the agent against his principal. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Hawaii, Rev. Laws 1905, § 1745. Montana, Rev. Codes 1907, § 6066. North Dakota, Rev. Codes 1905, § 6580. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2747; Comp. Laws 1909 (Snyder), §2905. South Dakota, Rev. Codes 1903. C. C. § 2310. a Hawaii, $ 1745, see note a to Cal. Civ. Code | 3300, page 1722. Breach of promise of marriage. California, § 3319. The damages for the breach of a promise of marriage rest in the sound discretion of the jury. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Hawaii, Rev. Laws 1905, § 1745. b Montana, Rev. Codes 1907, § 6067. North Dakota, Rev. Codes 1905, § 6581. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2748; Comp. Laws 1909 (Snyder), §2906. South Dakota, Rev. Codes 1903, C. C. § 2311. 1724 DAMAGES. [Tit. XVI. a Hawaii, § 1745, see note a to Cal. Civ. Code § 3300, p. 1722. b Montana, § 6067, substantially same as Cal. Civ. Code § 3319, except in the last line after discretion "of" is printed "for." §442. DAMAGES FOR BREACH OF CARRIERS' OBLIGATIONS. Breach of carrier's obligation to accept freight, passengers, etc. California, § 3315. The detriment caused by the breach of a car- rier's obligation to accept freight, messages, or passengers, is deemed to be the difference between the amount which he had a right to charge for the carriage and the amount which it would be necessary to pay for the same service when it ought to be performed. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Hawaii, Rev. Laws 1905, § 1745. Montana, Rev. Codes 1907, § 6063. North Dakota, Rev. Codes 1905, § 6577. Oklahoma, Rev. and Ann. Stats. 1903 (Wil- son), §2744; Comp. Laws 1909 (Snyder), §2902. South Dakota, Rev. Codes 1903, C. C. §2307. b Texas, Civ. Stats. 1897 (Sayles), Art. 321. a Hawaii, § 1745, see note a to Cal. Civ. goods, as above provided, taking In the Code §3300, page 1722. same in the order presented, shall be b Texas, Art. 321. Upon the tender of liable to the party injured for damages the legal or customary rates of freight sustained by reason of his refusal, and on goods offered for transportation, to shall also be liable to a penalty of not any common carrier whatever such car- less than five nor more than five hun- rier shall receive and transport such dred dollars, to be recovered in each case goods, provided his vehicle or vessel has by the owner of the goods in any court capacity safely to carry the goods so of- having jurisdiction in the county where fered on the trip or voyage then pending, the wrong is done or where the common and such goods are of the kind usually carrier resides; provided, this article carried upon such vehicle or vessel, and shall not affect such corporations as are are offered at a reasonable time. Any embraced in article 4496 of these stat- common carrier refusing to transport utes. Breach of carrier's obligation to deliver freight. California, § 3316. The detriment caused by the breach of a car- rier's obligation to deliver freight, where he has not converted it to his own use, is deemed to be the value thereof at the place and on the day at which it should have been delivered, deducting the freightage to which he would have been entitled if he had completed the delivery. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: * Hawaii, Rev. Laws 1905, § 1745. Montana, Rev. Codes 1907, § 6064. North Dakota. Rev. Codes 1905, § 6578. Oklahoma, Rev. and Ann. Stats. 1903 Jh. CXXVIL] BREACH OF CARRIERS - CONTRACTS. 1725 (Wilson), §2745; Comp. Laws 1909 (Snyder), §2903. South Dakota, Rev. Codes 1903, C. C. § 2308. b Texas, Civ. Stats. 1897 (Sayles), Art. 322. a Hawaii, S 1745, see note * to Cal. Civ. tear and deterioration in due course of Code § 3300, page 1722. transportation only excepted; and in b Texas, Art. 322. Common carriers case such common carrier shall fail to are required, when they receive goods deliver goods as above required, they for transportation, to give to the ship- shall be liable to the party injured for per, when it is demanded, a bill of lad- his damages, as at common law; and in ing or memorandum in writing, stating case such common carrier[s] shall fail to the quantity, character, order and con- liver a bill of lading or memorandum in dition of the goods; and such goods shall writing, as above required, they shall be be delivered, in the manner provided by liable to a penalty of not less than five common law, in like order and condition nor more than five hundred dollars, to be- to consignee, the unavoidable wear and recovered as in the preceding article. Detriment caused by carrier's delay in delivery. California, § 3317. The detriment caused by a carrier's delay in the delivery of freight, is deemed to be the depreciation in the intrin- sic value of the freight during the delay, and also the depreciation, if any, in the market value thereof, otherwise than by reason of a depreciation in its intrinsic value, at the place where it ought to have been delivered, and between the day at which it ought to have been delivered, and the day of its actual delivery. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered ncte succeeding and the difference there shown: * Hawaii, Rev. Laws 1905, § 1745. b Montana, Rev. Codes 1907, § 6065. North Dakota, Rev. Codes 1905, § 6579. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2746: Comp. Laws 1909 (Snyder), §2904. South Dakota, Rev. Codes 1903, C. C. § 2309. a Hawaii, § 1745, see note a to Cal. Civ. Code § 3300, page 1722. b Montana, § 6065, substantially same as Cal. Civ. Code § 3317, except in the second line the words "the depreciation" are omitted between "to be" and "in the." §443. DAMAGES FOR BREACH OF CONTRACTS RELATING TO REAL PROPERTY. Detriment caused by breach of covenant of seizin, etc. California, § 3304. The detriment caused by the breach of a cove- nant of "seizin," of "right to convey," of "warranty," or of "quiet enjoyment," in a grant of an estate in real property, is deemed to be : 1. The price paid to the grantor ; or, if the breach is partial only, such proportion of the price as the value of the property affected by 1726 DAMAGES. [Tit. XVI. the breach bore at the time of the grant to the value of the whole property ; 2. Interest thereon for the time during which the grantee derived no benefit from the property, not exceeding five years; 3. Any expenses properly incurred by the covenantee in defend- ing his possession. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: • Hawaii, Rev. Laws 1905, §1745. Montana, Rev. Codes 1907, §6052. o North Dakota, Rev. Codes 1905, §6566. c Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2733; Comp. Laws 1909 (Snyder), §2891. <* South Dakota, Rev. Codes 1903, C. C. § 2296. a Hawaii, § 1745, see note a to Cal. Civ. c Oklahoma, § 2733, same as North Da- Code § 3300, page 1722. kota § 6566. b North Dakota, § 6566, substantially d South Dakota, Civ. Code § 2296, same same as Cal. Civ. Code § 3304, except as North Dakota g 6566. near the end of sub. 2, change "five" to ■"six" before "years." Detriment caused by breach of covenant against encumbrances. California, § 3305. The detriment caused by the breach of a cove- nant against encumbrances in a grant of an estate in real property is deemed to be the amount which has been actually expended by the covenantee in extinguishing either the principal or interest thereof, not exceeding in the former case a proportion of the price paid to the grantor equivalent to the relative value at the time of the grant of the property affected by the breach, as compared with the whole, or, in the latter case, interest on a like amount. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Hawaii, Rev. Laws 1905, §1745. t> Minnesota, Rev. Laws 1905, §3345. Montana, Rev. Codes 1907, § 6053. North Dakota, Rev. Codes 1905, § 6567. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2734; Comp. Laws 1909 (Snyder), §2892. South Dakota, Rev. Codes 1903, C. C. §2297. a Hawaii, § 1745, see note a to Cal. Civ. Code § 3300, page 1722. b Minnesota, § 3345. Whoever conveys real estate by deed or mortgage containing a covenant that it is free from all encumbrances, when an encumbrance, whether known to him or not, appears of record to exist thereon, but does not exist in fact, shall be liable in an action of contract to the grantee, his heirs, executors, admin- istrators, successors, or assigns, for all damages sustained in removing the sanr.e. Ch. CXXVII.] ON REAL PROPERTY CONTRACTS. 1727 Breath of agreement to convey real estate. California, § 3306. The detriment caused by the breach of an agreement to convey an estate in real property, is deemed to be the price paid, and the expenses properly incurred in examining the title and preparing the necessary papers, with interest thereon ; but adding thereto, in case of bad faith, the difference between the price agreed to be paid and the value of the estate agreed to be conveyed, at the time of the breach, and the expenses properly incurred in pre- paring to enter upon the land. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ material^ from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Hawaii, Rev. Laws 1905, § 1745. Montana, Rev. Codes 1907, § 6054. b North Dakota, Rev. Codes 1905, § 6568. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2735; Comp. Laws 1909 (Snyder), §2893. South Dakota, Rev. Codes 1903, C. C. § 2298. a Hawaii, § 1745, see note a to Cal. Civ. to be conveyed at the time of the breach Code § 3300, page 1722. and the expenses properly incurred in b North Dakota, § 6568. The detriment examining the title with interest thereon, caused by the breach of an agreement to and in preparing to enter upon the land convey an estate in real property is the and the amount paid on the purchase difference between the price agreed to be price, if any, with interest thereon from paid and the value of the estate agreed the time of the breach. Breach of agreement to buy real estate. California, § 3307. The detriment caused by the breach of an agreement to purchase an estate in real property, is deemed to be the excess, if any, of the amount which would have been due to the seller, under the contract, over the value of the property to him. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Hawaii, Rev. Laws 1905, § 1745. Montana, Rev. Codes 1907, § 6055. b North Dakota, Rev. Codes 1905, § 6569. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2736; Comp. Laws 1909 (Snyder), §2894. South Dakota, Rev. Codes 1903, C. C. § 2299. a Hawaii, § 1745, see note a to Cal. Civ. Code § 33(0, page 1722. b North Dakota, § 6569, substantially same as Cai. Civ. Code § 3307, except at tha end omit "to him" after "property." 172S DAMAGES. [Tit. XVI. §444. DAMAGES FOR BREACH OF CONTRACTS RELATING TO PER- SONAL PROPERTY. Breach of agreement to deliver personal property not paid for. California, § 3308. The detriment caused by the breach of a seller's agreement to deliver personal property, the price of which has not been fully paid in advance, is deemed to be the excess, if any, of the value of the property to the buyer, over the amount which would have been due to the seller under the contract, if it had been ful- filled. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Hawaii, Rev. Laws 1905, § 1745. Montana, Rev. Codes 1907, § 6056. North Dakota, Rev. Codes 1905, § 6570. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2737; Comp. Laws 1909 (Snyder), §2895. South Dakota, Rev. Codes 1903, C. C. § 2300. a Hawaii, § 1745, see note a to Cal. Civ. Code § 3300, page 1722. Breach of agreement to deliver personal property paid for. California, § 3309. The detriment caused by the breach of a seller's agreement to deliver personal property, the price of which has been fully paid to him in advance, is deemed to be the same as in case of wrongful conversion. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Hawaii, Rev. Laws 1905, §1745. Montana, Rev. Codes 1907, §6057. North Dakota, Rev. Codes 1905, § 6571. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2738; Comp. Laws 1909 (Snyder), §2896. South Dakota, Rev. Codes 1903, C. C. § 2301. a Hawaii, § 1745, see note a to Cal. Civ. Code § 3300, page 1722. Breach of agreement to accept and pay for personal property sold California, § 3310. The detriment caused by the breach of a buy- er's agreement to accept and pay for personal property, the title to which is vested in him, is deemed to be the contract price. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: Ch. CXXVII.] ON PERSONAL PROPERTY CONTRACTS. 1729 » Hawaii, Rev. Laws 1905, § 1745. Montana, Rev. Codes 1907, § 605S North Dakota, Rev. Codes 1905, § 6572. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2739; Comp. Laws 1909 (Snyder), §2897. South Dakota, Rev. Codes 1903, C. C. § 2302. • Hawaii, § 1745, see note a to Cal. Civ. Code § 3300, page 1722. Breach of buyer's agreement in conditional sale. California, § 3311. The detriment caused by the breach of a buy- er's agreement to accept and pay for personal property, the title to which is not vested in him, is deemed to be: 1. If the property has been resold, pursuant to section three thou- sand and forty-nine, the excess, if <.r any person at any time to kill any dog which may be found worrying or injur- ing sheep. gi Minnesota, § 27S6. The owner or keeper of any dog that shall kill, wound. 1736 DAMAGES. [Tit. XVI. or worry any domestic animal shall be liable to the owner thereof for the value of such animal, without proving notice to such owner or keeper, or knowledge by him, that such dog was mischievous or disposed to kill or worry such animals. g2 Minnesota, § 27S8. Any person may kill any dog found injuring or worrying sheep, and any owner of sheep may kill any dog found on his premises where sheep are kept, not under the restraint or control of his owner or other person. hi Missouri, § 6975. In every case where sheep or other domestic animals are killed or maimed by dogs, the owner of such animals may recover against the owner or keeper of such dog or dogs the full amount of damages, and the owner shall forthwith kill such dog or dogs; and for every day he shall refuse or neg- lect to do so, after notice, he shall pay and forfeit the sum of one dollar, and it shall be lawful for any person to kill such dog or dogs. h2 Missouri, § 6976. If any person shall discover any dog or dogs in the act of killing, wounding or chasing sheep ih any portion of this state, or shall discover any dog or dogs under such circum- stances as to satisfactorily show that such dog or dogs has or have been re- cently engaged in killing or chasing sheep or other domestic animal or ani- mals, such person is authorized to im- mediately pursue and kill such dog or dogs: Provided, however, that such dog or dogs shall not be killed in any enclos- ure belonging to or being in lawful pos- session of the owner of such dog or dogs. I Nebraska, § 542. That dogs are hereby declared to be personal property for all intents and purposes and the owner or owners of any dog or dogs shall be liable for any and all damages that may accrue to any person, firm or corporation by reason of such dog or dogs killing, wounding, worrying, or chasing any sheep or other domestic animal belonging to such other person, firm or corporation and such damage [may] be recovered from [in] any court having jurisdiction of the amount claimed. J New Mexico, Laws 1901, p. 198, § 2. If any dog shall kill or injure any sheep, the owner or keeper of such dog shall be liable for all damages that may be sustained thereby, to be recovered by the party so injured before any court having competent jurisdiction, and It shall be unlawful to keep such dog after it is kno ivn that the dog is liable to kill sheep, but it shall be the duty of the owner to kill the same. (Enacted March 21, 1901.) ki North Dakota, § 1957. If any person shall discover any dog in the act of kill- ing, wounding, or chasing sheep in this state, or shall discover any dog under such circumstances as satisfactorily to show that it has been recently engaged in killing or chasing sheep, such person is authorized immediately to pursue and kill such dog. k2 North Dakota, § 1958. The owner of any dog shall be liable in a civil action for all damages that may accrue to any person by reason of such dog's killing, wounding or chasing any sheep or other domestic animal belonging to such per- son. li Oregon, § 4198. The owner of any dog shall be liable for all damages that may accrue to any person or persons in this state by reason of such dog killing, wounding, or chasing any sheep or other domestic animal belonging to such other person or persons, the same to be' recov- ered in an action for debt before any court having jurisdiction. 12 Oregon, § 4199. If any person shall discover any dog in the act of killing, wounding, or chasing any sheep or other domestic animals in any portion of this state, or shall discover any dog under such circumstances as to satisfactorily show that such dog has been recently en- gaged in killing or chasing sheep or other domestic animals for the purpose of killing them, such person is authorized to immediately pursue and kill such dog. mi South Dakota, Pol. C. § 2956. Aay person keeping, owning or harboring a dog that shall chase, worry or kill horses, mules, cattle or sheep, shall be liable for all damages committed by such dog upon any horses, mules, cattle or sheep, to the owner or owners of such horses, mules, cattle or sheep, and shall not be entitled to any benefit from the laws exempting property from execution, but all property shall be subject to execution and judg- ment for such damages and costs. m2 South Dakota, Pol. C. § 2957. It shall be lawful for any person to kill any dog off the premises of the owner of such dog found chasing or worrying sheep. ni Utah, § 70. Every person owning or keeping a dog shall be liable in damages Ch. CXXVII.] PENAL DAMAGES. 1737 for any injurious act committed by such dog; and it shall not be necessary in any action brought therefor to allege or prove that such dog was of a vicious or mis- chievous disposition, or that the owner or keeper thereof knew that it was vicious or mischievous. n2 Utah, § 71. Where any injury has been committed by two or more dogs acting together, and such dogs are owned or kept by different persons, all such persons may be joined as defendants in the same action to recover damages therefor, and the amount found by the court or jury for such injury shall be apportioned among the several defend- ants found liable, and judgment entered severally against them for the amount so apportioned. oi Wisconsin, § 1619. Any person may kill any dog, that he knows is affected with the disease known as hydrophobia, or that may suddenly assault him while he is peacefully walking or riding and while being out of the enclosure or im- mediate care of its owner or keeper, and may kill any dog before its return to the enclosure or immediate care of its owner or keeper which shall be found killing, wounding or worrying any horses, cattle, sheep, lambs or other domestic animals. (Amended 1903, Sup. 3, p. 722.) 02 Wisconsin, § 1620. The owner or keeper of any dog which shall have in- jured or caused the injury of any person or property or killed, wounded or wor- ried any horses, cattle, sheep or lambs shall be liable to the person so injured and the owner of such animals for all damages so done, without proving notice to the owner or keeper of such dog or knowledge by him that his dog was mis- chievous or disposed to kill, wound or worry horses, cattle, sheep or lambs. o3 Wisconsin, § 1621. If any dog shall w«rry, wound or kill any horses, cattle, eheep or lambs, and the person owning or harboring such dog shall not keep such dog confined after being notified of such worrying, wounding or killing, such owner or keeper shall be liable to pay damage in double the value of any horses, cattle, sheep or lambs which may be thereafter killed or injured by such dog, to be recovered in an action by the owner of such animals; and any person may kill any such dog if found out of the enclosure or immediate care of its owner or keeper after the twenty-four hours from the time of such notice. o4 Wisconsin, § 1622. Any person suf- fering personal injury by any dog in the manner set forth in the first section of this chapter may give notice to the owner or keeper of the act done, and if after such notice such dog shall injure any person, or wound or kill any horses, cattle, sheep or lambs, or do any other mischief or injury the owner or keeper shall be liable to pay to the person in° jured thereby treble damages. p Wyoming, § 2014. Dogs running live- stock against the wish of the owner of such livestock, may be killed in cases where the livestock has been injured or is threatened with injury thereby; and! the person killing any such dog shall not be liable to the owner thereof where th« vicious chracter of the dog, or the dam- age or danger of damage, is shown; pro- vided, however, that when livestock Irj trespassing upon property, the owner thereof may use dogs to drive and keep off livestock from said property. §446. PENAL DAMAGES. Exemplary or punitive damages. California, § 3294. In an action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppres- sion, fraud, or malice, express or implied, the plaintiff, in addition to the actual damages, may recover damages for the sake of exam- ple and by way of punishing the defendant. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where th# provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: 1738 DAMAGES. [Tit. XVI. • Colorado, Rev. Stats. 1908, §2067. b Montana, Rev. Codes 1907, §6047. « North Dakota, Rev. Codes 1905, §6562. a Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2729; Comp. Laws 1909 (Snyder), §2887. e South Dakota, Rev. Codes 1903, C. C. § 2292. a Colorado, § 2067. That in all civil b Montana, § 6047, substantially same actions in which damages shall be as- as Cal. Civ. Code § 3294, except in line 3 sessed by a jury for a wrong done to the after "malice" change "express or im- person, or to personal or real property, plied, the plaintiff," to "actual or pre- and the injury complained of shall have sumed, the jury"; also in line 4 after been attended by circumstances of fraud, "may" change "recover" to "give." malice or insult, or a wanton and reck- c North Dakota, § 6562, substantially less disregard of the injured party's same as Montana § 6047. rights and feelings, such jury may, in d Oklahoma, § 2729, same as Montana addition to the actual damages sus- § 6047. tained by such party, award him reason- e South Dakota, C. C. § 2292, same as able exemplary damages. Montana § 6047. Damages for wilful or negligent injuries to animals. California, § 3340. For wrongful injuries to animals being sub- jects of property, committed wilfully or by gross negligence, in disre- gard of humanity, exemplary damages may be given. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6075. North Dakota, Rev. Codes 1905, § 6589. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2756; Comp. Laws 1909 (Snyder), §2914. South Dakota, Rev. Codes 1903, C. C. §2319. Damages for failure to quit after notice. California, § 3344. If any tenant give notice of his intention to quit the premises, and does not deliver up the possession at the time specified in the notice, he must pay to the landlord treble rent during the time he continues in possession after such notice. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Arkansas, Dig. of Stats. 1904 (Kirby), §4694. b Iowa, Ann. Code 1897, § 2989. o Missouri, Ann. Stats. 1906, § 4104. Montana, Rev. Codes 1907, § 6076, d North Dakota, Rev. Codes 1905, §6590. e Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2757; Comp. Laws 1909 (Snyder), §2915. f South Dakota, Rev. Codes 1903, C. C. §2320. e Wisconsin, Stats. 1898 (San. & Ber. Ann.), § 2185. a Arkansas, § 4694. If any tenant shall not deliver up the possession thereof give notice in writing of his intention at such time, such tenant, his executor to quit the premises held by him at a or administrator, shall from thencefor- time specified in such notice, and shall ward pay to the landlord, his heirs or Ch. CXXVII.] PENAL DAMAGES. 1739 assigns, double the rent reserved dur- ing all the time such tenant shall so continue in possession of such premises. b Iowa, § 29S9. A tenant giving notice of his intention to quit leased premises at a time named, and afterwards hold- ing over, and a tenant or his assignee wilfully holding over after the term, and after notice to quit, shall pay double the rental value thereof during the time he holds over to the person entitled thereto. c Missouri, § 4104, substantially same as Arkansas § 4694. d North Dakota, § 6590. For the failure of a tenant to give up the premises held by him, when he has given notice of his intention to do so, the measure of dam- ages is double the rent which he ought otherwise to pay. e Oklahoma, § 2757, same as North Da- kota § 6590. f South Dakota, C. C. § 2320, same as North Dakota § 6590. g Wisconsin, § 21S5, substantially same as Arkansas § 4694. Damages for wilfully holding over after demand and notice. California, § 3345. If any tenant, or any person in collusion with the tenant, holds over any lands or tenements after demand made and one month's notice, in writing given, requiring the possession thereof, such person holding over must pay to the landlord treble rent during the time he continues in possession after such notice. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: • Arkansas, Dig. of Stats. 1904 (Kirby), §4696. b | wa, Ann. Code 1897, §2989. o Missouri, Ann. Stats. 1906, §4106. Montana, Rev. Codes 1907, § 6077. * North Dakota, Rev. Codes 1905, § 6591. e Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2758; Comp. Laws 1909 (Snyder), §2916. t South Dakota, Rev. Codes 1903, C. C. §2321. g Wisconsin, Stats. 1898 (San. & Ber. Ann.), § 2186. a Arkansas, § 4696. If any tenant for life or years, or if any other person who may have come into possession of any lands and tenements, under or by col- lusion with such tenant, shall wilfully hold over the same after the termina- tion of such term, and thirty days' pre- vious notice in writing given requiring the possession thereof by the person en- titled thereto, such person so holding over shall pay to the person so kept out of possession double the yearly rents of the lands or tenements so detained for all time he shall keep the person entitled thereto out of possession. b Iowa, § 29S9, see note b to Cal. Civ. Code § 3344. c Missouri, § 4106, substantially same as Arkansas § 4696, except in line 7 after "term, and" change "thirty days' pre- vious" to "after demand made and" be- fore "notice in writing"; also in line 4 from the end after "yearly" change "rents" to "value." d North Dakota, § 6591. For wilfully holding over real property by a tenant after the end of his term and after no- tice to quit has been duly given and de- mand of possession made the measure of damages is double the yearly value of the property for the time of withholding in addition to compensation for the det- riment occasioned thereby. e Oklahoma, § 2758, same as North Da- kota § 6591. f South Dakota, C. C. § 2321, same as North Dakota § 6591. g Wisconsin, § 2186, substantially same as Arkansas § 4969, except in line 4 after "such" change "term, and thirty days' previous" to "time and after de- mand made and one month's" before 1740 DAMAGE3. [Tit. XVI. "notice"; also in line 4 from the last, "yearly"; also at the end add "and shall after "possession," insert "or his repre- also pay and remunerate all special dam- sentatives at the rate of" before age whatever to which the person so "double"; also in line 4 from the last kept out of possession may be subjected change "rents" to "value" after by reason of such holding over." Measure of damages for injuries to trees, etc. California, § 3346. For wrongful injuries to timber, trees, or un- derwood upon the land of another, or removal thereof, the measure of damages is three times such a sum as would compensate for the actual detriment, except where the trespass was casual and involun- tary, or committed under the belief that the land belonged to the trespasser, or where the wood was taken by the authority of highway officers for the purposes of a highway ; in which cases the damages are a sum equal to the actual detriment. (Kerr's Cyc. Civ. Code.) Damages for firing woods. California, § 3346a. Every person negligently setting fire to his own woods, or negligently suffering any fire to extend beyond his own land, is liable in treble damages to the party injured. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is mad* in a lettered note succeeding and the difference there shown: • Arkansas, Dig. of Stats. 1904 (Kirby), §1698. b Colorado, Rev. Stats. 1908, §2070. o Kansas, Gen. Stats. 1905 (Dassler), §8742. a Missouri, Ann. Stats. 1906, § 2872. e New Mexico, Comp. Laws 1897, § 3222. t North Dakota, Rev. Codes 1905, §2067. e Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2361; Comp. Laws 1909 (Snyder), §2484. » South Dakota, Rev. Codes 1903, Pen. Code §473. i Washington, Code 1910 (Rem. & Bal.), §5141. i Wiscon- sin, Stats. 1898 (San. & Ber. Ann.), §4406. a Arkansas, § 1698. If any person shall ries so as thereby to occasion damage to wilfully set on fire any woods, marshes any other person, he shall be liable to or prairies, whether his own or not, so the party injured for the full amount of as thereby to occasion any damage to such damage, to be recovered by civil any other person, such person shall action. make satisfaction in double damages to d Missouri, § 2872, same as Arkansas the party injured, to be recovered by | 1698. civil action. e New Mexico, § 3222, substantially b Colorado, § 2070. If any person shall same as Arkansas § 1698, except in line set on fire any woods or prairie, so as to 2 after "shall" omit "wilfully" before damage any other person, such person "set on fire." shall make satisfaction for the damage t North Dakota, § 2067. If any person to the party injured, to be recovered in shall wilfully, negligently or carelessly an action before any court of competent set or cause to be set on fire any woods, jurisdiction. marsh or prairie in this state, or if any c Kansas, § 8742. If any person shall person having made any camp or other set on fire any woods, marshes or prai- fire, shall leave such fire without having Ch. CXXVIL] penal damages. 1741 thoroughly extinguished the same, so that the fire shall spread and burn any wood, marsh or prairie, the person guilty of setting or causing to set such fire or leaving such camp or other fire without having thoroughly extinguished the same, so that the fire shall not spread there- from, Is guilty of a misdemeanor, and upon conviction thereof is punishable by a fine not exceeding two hundred dollars or by imprisonment in the county jail not exceeding one year, or by both in the discretion of the court, and shall also be liable in a civil action to any person damaged by such fire to the amount of such damage. g Oklahoma, § 2361. Every person who negligently or carelessly sets on fire, or causes to be set on fire, any woods, marshes, or prairies, or who, having set the same on fire, or caused it to be done, negligently or carelessly, or without full precaution or efforts to prevent, permits it to spread beyond his control, shall, upon conviction, be fined not exceeding one hundred dollars and not less than ten dollars, and shall be liable to the in- jured parties for all damages occasioned thereby. One-half of such fine shall, when collected, go to the informer. h South Dakota, Pen. Code § 473, same as Oklahoma § 2361. 1 Washington, § 5141. If any person shall for any lawful purpose kindle a fire upon his own land, he shall do it at such time and in such manner, and shall take such care of it to prevent it from spread- ing and doing damage to other persons' property, as a prudent and careful man would do, and if he fail so to do he shall be liable in an action to any person suf- fering damage thereby to the full amount of such damage. 1 Wisconsin, §4406. * * • Any per- son who shall wilfully or negligently set fire to or assist another to set fire on any land, whereby such land is in- jured or endangered, or shall wilfully or negligently suffer any fire upon his own land to escape beyond the limits thereof, to the injury of the land of another, shall be punished as hereinbefore pro- vided and be liable to the person injured for all damage that may be caused by the fire. Damages for detriment caused by a duel . California, § 3347. If any person slays or permanently disables another person in a duel in this state, the slayer must provide for the maintenance of the widow or wife of the person slain or permanently disabled, and for the minor children, in such manner and at such cost, either by aggregate compensation in damages to each, or by a monthly, quarterly, or annual allowance, to be determined by the court. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: Montana, Rev. Codes 1907, § 6079. a Washington, Code 1910 (Rem. & Bal.), §183. a Washington, 8 183. The widow, or widow and her children, or child or children if no widow, of a man killed in a duel, shall have a right of action against the persons killing him, and against the seconds and all aiders and abettors. * * * In every such action the jury may give such damages, as under all circumstances of the case may to them seem Just. 1742 DAMAGES. [Tit. XVI. Liability to pay debts of person slain or permanently disabled in duel. California, § 3348. If any person slays or permanently disables another person in a duel in this state, the slayer is liable for and must pay all debts of the person slain or permanently disabled. (Kerr's Cyc. Civ. Code.) The following statute treats of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6080. §447. ANNOTATIONS.— Damages. 1. Redress in law and equity. — Distinctions. 2. "Proximate cause" defined. 3, 4. Future earnings as element of damages. — Loss of time. 5, 6. Special damages. 7. Speculative damages. 8. Liquidated damages. 9. Demand for damages not necessary. 10. Breach of contract to buy. — Measure of damages. 11. Pleading damages. 12. Allowance of interest. 13. Personal injuries caused by known defect. 14. Punitive damages. 15, 16. Exemplary damages. — For malicious ejection. 17, 18. "Wilful." — Meaning construed. 19. Allegation as basis for exemplary damages. 1. Redress in law and equity. — Dis- tinctions. — Distinctions between kinds of redress given by law and equity are not sought to be obliterated by the Cali- fornia statute, although courts of law and equity are merged into one, and a party is awarded such legal or equita- ble redress as the simple pleading of ultimate facts shows him to be entitled to: Glock v. Howard & W. C. Co., 123 Cal. 1, 6, 55 Pac. 713, 69 Am. St. Rep. 17, 43 L. R. A. 199. 2. "Proximate cause" defined. — "Prox- imate cause" means that efficient cause which necessarily sets other causes in operation. Causes which are merely in- cidental or instruments of some other controlling agency are not proximate: Smith v. Los Angeles & P. R. Co., 98 Cal. 210, 214, 33 Pac. 53; Westwater v. Grace Church, 140 Cal. 339, 342, 73 Pac. 1055. See Friend & T. L. Co. v. Miller, €7 Cal. 464, 467, 8 Pac. 40; Cederberg v. Robison, 100 Cal. 93, 97-99, 34 Pac. 625; Martin v. Deetz, 102 Cal. 55, 36 Pac. 368, 41 Am. St. Rep. 151; Shoemaker v. Acker, 116 Cal. 239, 244, 48 Pac. 62; Crow v. San Joaquin etc. C. & I. Co., 130 Cal. 309, 314, 62 Pac. 562, 1058. 3. Futvrc earnings as element of dam* ages. — Under an averment in the peti- tion, "that, because of the premanency of her said injuries, she is and ever will be incapacitated from earning her live- lihood at her chosen and established trade, to wit, that of seamstress and dressmaker"; held, that the defendant was sufficiently notified by this aver- ment to prepare to meet the issue of earnings lost from the date of the in- jury of the plaintiff in an action to re- cover for such injuries: Hitchings v. City of Maryville, 134 Mo. App. 712, 115 S. W. 473, 475, citing Wilbur v. Railway, 110 Mo. App. 689, 85 S. W. 671. 4. An averment of loss of time in an action to recover for injuries caused by the reckless driving of an automobile, held equivalent to an averment of loss of earnings: Scholl v. Grayson (Mo. App.), 127 S. W. 415, 417. See Slaughter v. Railroad, 116 Mo. 269, 275, 23 S. W. 760. 5. Special damages which are the nat- ural, but not the necessary, result of the injury complained of must be specially alleged: O'Brien v. Quinn, 35 Mont. 441, 90 Pac. 166, 168; Root v. Ch. CXXVII.] ANNOTATIONS. 174:; Butte etc. R. Co., 20 Mont. 354, 51 Pac. 155. 6. Special damages are those which are awarded upon the theory that par- ties who contracted with full knowledge of facts, circumstances, and objects of the agreement may well be supposed to have had in contemplation all the prox- imate and natural results flowing from its breach: Wallace v. Ah Sam, 71 Cal. 197, 201, 12 Pac. 46, 60 Am. Rep. 534. 7. Speculative damages are not recov- erable. The verdict should be confined to such detriment only as was proxi- mately caused by the wrongful act: Hawthorne v. Siegel, 88 Cal. 159, 163- 166, 25 Pac. 1114, 22 Am. St. Rep. 291. 8. Liquidated damages will be allowed in accordance with the stipulation of the parties if it appears that the sum named was not intended as a mere forfeiture or penalty, even if the agreement seem to have been made improvidently: Streeter v. Rush, 25 Cal. 67, 71; Muldoon v. Lynch, 66 Cal. 536, 539, 540, 6 Pac. 417. 9. Demand for damages is not neces- sary in order to maintain an action for damages or to abate a nuisance: Wil- hite v. Billings & E. M. P. Co., 39 Mont. 1, 101 Pac. 16S, 169. 10. Breach of contract to buy. — Meas- ure of damages.— Upon a breach of con- tract to purchase goods by the buyer, the general rule is that the measure of damages is the excess of the price fixed by the contract over the market value of the goods at the time and place of the delivery: Kirchman v. Tuf- fll Bros. (Ark.), 122 S. W. 239, 241, and cases there cited. 11. Pleading damages. — Where the complaint conforms to the statute in re- gard to the estimate and measure of damages in case of a breach of con- tract, it is not necessary to be more definite or specific in alleging items of damage: Kirchman v. Tuffli Bros. (Ark.), 122 S. W. 239, 241. 12. Allowance of interest. — In a suit for breach of contract, the court may in a proper case allow the plaintiff inter- est upon the amount of damages sus- tained from the date of filing the com- plaint: Cutting F. P. Co. v. Canty, 141 Cal. 692, 697, 75 Pac. 564. 13. Personal injuries caused by known defect. — Where a defective article was sold under the representation that it was safe for use, but the vendor knew it to be dangerous, he is liable for personal injuries caused by reason of such known defect to any person who used the arti- cle, notwithstanding the fact that there was no privity of contract between them: Lewis v. Terry, 111 Cal. 39, 43 Pac. 398. 52 Am. St. Rep. 146, 31 L. R. A. 22C 14. Punitive damages are not assessa- ble as a matter of right: Tilton v. James L. Gates L. Co., 140 Wis. 197, 121 N. W. 331, 336; Robinson v. Superior R. T. Co., 94 Wis. 345, 68 N. W. 961, 59 Am. St. Rep. 897, 34 L. R. A. 205. 15. Exemplary damages can be recov- ered only where the act complained of is the result of wilful misconduct: Yerian v. Linkletter, 80 Cal. 135. 138, 22 Pac. 70. 16. Exemplary damages for malicious ejection. — A railroad company is not liable in exemplary damages for any malicious or wanton conduct of its conductor In wrongfully ejecting a passenger from a train, unless the act complained of was done with the author- ity, express or implied, of such com- pany, or was subsequently adopted by it: Warner v. Southern Pacific Co., 113 Cal. 105, 106, 45 Pac. 187, 54 Am. St. Rep. 327. 17. "Wilful" does not imply malice or wrong towards the other party, but is synonymous with "intentional": Benk- ert v. Benkert, 32 Cal. 467, 470. See Thornburg v. Thornburg, IS W. Va. 526. 18. The word "wilful" is not neces- sarily technical. Ordinary words shall be construed "according to the context and the approved usage of the lan- guage": Towle v. Matheus, 130 Cal. 574, 577, 62 Pac. 1064. 19. An allegation as a basis for ex- emplary damages within section 3294 of the California Civil Code is sufficient which reads as follows: "That the de- fendant refused to comply with said de- mand and refused to supply the plaint- iff with water unless the plaintiff would repay to the defendant the amount paid by defendant to plaintiff for the right of way across his lands for the said ditch or canal; that the said refusal of the defendant was wanton, wilful, ma- licious, and without any right whatever, and was made for the purpose of ex- torting from this plaintiff the amount of money paid by defendant to plaintiff for said right of way, * • • an( j f 0r 1744 PENALTIES AND FORFEITURES. [Tit. XVI. the purpose of damaging, injuring, and (for damages for failure to deliver water destroying the crop growing on said for Irrigation). See Greenberg v. West- lands, and for the purpose of vexing, era Turf Assn., 140 Cal. 358, 78 Pac. harassing, and annoying this plaintiff 1050, (holding Instruction proper for herein": Lowe v. Yolo County C. W. punitive damages). Co., 8 Cal. App* 167, 96 Pac. 379, 381, CHAPTER CXXVIII. Penalties and Forfeitures. Pag© § 448. Code provisions 1744 § 449. Complaints [or petitions] 1753 Form No. 1051. For penalty. (General form.) 1753 Form No. 1052. For penalty for violation of ordinance of board of supervisors 1753 Form No. 1053. For penalty for sale of liquors without license 1754 Form No. 1054. Against witness for disobeying subpoena 1754 §448. CODE PROVISIONS. Relief in case of forfeiture. California, § 3275. Whenever, by the terms of an obligation, a party thereto incurs a forfeiture, or a loss in the nature of a for- feiture, by reason of his failure to comply with its provisions, he may be relieved therefrom, upon making full compensation to the other party, except in case of a grossly negligent, wilful, or fraud- ulent breach of duty. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6039. North Dakota, Rev. Codes 1905, § 6555. Oklahoma, Rev. and Ann. Stats. 1903 (Wilson), §2722; Comp. Laws 190& (Snyder), § 2880. South Dakota, Rev. Codes 1903, C. C. § 2285. Penalty for overcharging. California, § 504. Any corporation, or agent or employee thereof, demanding or charging a greater sum of money for fare on the cars of [a] * * * street railroad than that fixed, as provided in this title, [regulating street railroad corporations generally,] for- feits to the person from whom such sum is received, or who is thus overcharged, the sum of two hundred dollars, to be recovered in a civil action, in any justice's court having jurisdiction thereof, against the corporation. (Kerr's Cyc. Civ. Code.) Ch. CXXVIIL] CODE PROVISIONS. 1745 The following statute treats of the same subject as the foregoing: » Hawaii, Rev. Laws 1905, § 843. a Hawaii, § 843. (After providing for agent or employee shall forfeit to the fares, regulations, etc.) * * * person who is thus overcharged the sum If said association and others, or any of one hundred dollars, to be recovered agent or employee thereof, shall demand in a civil action in any court having or charge a greater sum of money for jurisdiction thereof. * * * (The re- fare on the cars of said association and mainder of the section relates to trial, others than that fixed by this chapter, presumptions, etc.) such association and others, or such Regulations as to tolls, toll-roads — Penalties, etc. California, § 514. All wagon-road corporations may bridge or keep ferries on streams on the line of their road, and must do all things necessary to keep the same in repair. They may take such tolls only on their roads, ferries, or bridges, as are fixed by the board of supervisors of the proper county through which the road passes, or in which the ferry or bridge is situate. But in no case must the tolls be more than sufficient to pay fifteen per cent, nor less than ten per cent per annum, on the cost of construction, after paying for repairs and other expenses for attending to the roads, bridges, or ferries. If tolls, other than as herein provided, are charged or demanded, the corporation forfeits its franchise, and must pay to the party so charged one hundred dollars as liquidated damages. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Arizona, Rev. Stats. 1901, flfl 3999, 4005. b Colorado, Rev. Stats. 1908, C. C. §6465. c Idaho, Rev. Codes 1909, §§991, 998. enforced, may be thus enforced, though a penalty is imposed, or th* damages are liquidated for its breach, and the party in default is willing to pay the same. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6101. North Dakota, Rev. Codes 1905, § 6613. 6outh Dakota, Rev. Codes 1903, C. C. § 2343. 1758 SPECIFIC PERFORMANCE. [Tit. XVI. Obligations not specifically enforceable. California, § 3390. The following obligations cannot be specifically enforced : 1. An obligation to render personal service; 2. An obligation to employ another in personal service ; 3. An agreement to submit a controversy to arbitration ; 4. An agreement to perform an act which the party has not power lawfully to perform when required to do so ; 5. An agreement to procure the act or consent of the wife of the contracting party, or of any other third person; or. 6. An agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Hawaii, Rev. Laws 1905, Organic Act, § 10. b Montana, Rev. Codes 1907, § 6102. North Dakota, Rev. Codes 1905, § 6614. South Dakota, Rev. Codes 1903, C. C. § 2344. a Hawaii, Organic Act, § 10. * • • b Montana, § 6102, substantially same Provided. That no suit or proceedings as Cal. Civ. Code § 3390, except subs. 1 shall be maintained for the specific per- and 2 of Cal. Civ. Code § 3390, are both formance of any contract heretofore or substantially included in sub. 1, Mon- hereafter entered into for personal labor tana § 6102; and for sub. 2, Montana or service, nor shall any remedy exist or § 6102, insert, "2. An agreement to marry be enforced for breach of any such con- or live with another." tract, except in a civil suit or proceed- ing instituted solely to recover damages for such breach. * * * Parties against whom specific performance cannot be enforced. California, § 3391. Specific performance cannot be enforced against a party to a contract in any of the following cases : 1. If he has not received an adequate consideration for the con- tract ; 2. If it is not, as to him, just and reasonable ; 3. If his assent was obtained by the misrepresentation, conceal- ment, circumvention, or unfair practices of any party to whom per- formance would become due under the contract, or by any promise of such party which has not been substantially fulfilled ; or, 4. If his assent was given under the influence of mistake, misap- prehension, or surprise, except that where the contract provides for compensation in case of mistake, a mistake within the scope of such Ch. CXXIX.] CODE PROVISIONS. 175«J provision may be compensated for, and the contract specifically enforced in other respects, if proper to be so enforced. (Kerr's ■Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6103. North Dakota, Rev. Codes 1905, § 6615. South Dakota, Rev. Codes 1903, C. C. § 2345. Parties in whose favor specific performance cannot be enforced. California, § 3392. Specific performance cannot be enforced in favor of a party who has not fully and fairly performed all the conditions precedent on his part to the obligation of the other party, except where his failure to perform is only partial, and either entirely imma- terial, or capable of being fully compensated, in which case specific performance may be compelled, upon full compensation being made for the default. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6104. North Dakota, Rev. Codes 1905, § 6616. South Dakota, Rev. Codes 1903, C. C. § 2346. Agreement to sell property by one who cannot give title. California, § 3394. An agreement for the sale of property cannot be specifically enforced in favor of a seller who cannot give to the buyer a title free from reasonable doubt. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6106. North Dakota, Rev. Codes 1905, § 6617. South Dakota, Rev. Codes 1903, C. C. § 2347. Relief against parties claiming under person bound to perform. California, § 3395. Whenever an obligation in respect to real property would be specifically enforced against a particular person, it may be in like manner enforced against any other person claiming under him by a title created subsequently to the obligation, except a purchaser or encumbrancer in good faith and for value, and except, also, that any such person may exonerate himself by conveying all his estate to the person entitled to enforce the obligation. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6107. North Dakota, Rev. Codes 1905, § 6618. South Dakota, Rev. Codes 1903, C. C. § 2348. jjGO SPECIFIC PERFORMANCE. [Tit. XVI. §451. COMPLAINTS [OR PETITIONS]. FORM No. 1055 — For specific performance of an agreement to make a lease. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , the defendant, being owner in fee of the following premises [describing the same], duly executed an agreement with the plaintiff, whereby he agreed to lease the same, with the appurtenances, to the plaintiff, for the term of years, from the day of , 19 , on the following conditions: [Set out the same.] 2. That the plaintiff, relying upon said agreement, has expended the sum of $ in improving said premises, in this : [State what improvements were made.] 3. That the plaintiff has duly performed all the conditions on his part to be performed, and has always been, and still is, ready and willing to accept a lease of said premises, but the defendant has failed and refused, and still refuses, to execute a lease to the plaintiff. 4. That said contract, and the terms and conditions thereof afore- said, were and are in all respects just and fair and reasonable be- tween the parties thereto. Wherefore, the plaintiff demands judgment, that the defendant be required to execute to the plaintiff a lease, according to the terms of said agreement, and for such other relief as is just and proper. r , T .„ ,. n A. B., Attorney for plaintiff. [Verification.] FORM No. 1056 — For specific performance of an agreement to exchange property. [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , at , the plaintiff and defendant entered into an agreement, in writing, of that date, whereby, in consideration of the covenants on the part of the plaintiff hereinafter mentioned, the defendant covenanted that he would, on or before the day of , 19 , convey to the plaintiff in fee, by warranty deed, a tract of land situated in the county of , in the state of , bounded and described as follows [giving descrip- tion] ; in consideration whereof, the plaintiff covenanted in and by gaid agreement to convey to the defendant in fee-simple a certain Ch. CXXIX.] COMPLAINTS [OR PETITIONS].— FORMS. 1701 house and lot situate in the city of , in this state, [describing the same]. 2. That the plaintiff duly performed all the conditions of said agreement on his part, and on the day of , 19 , at , tendered to the defendant a warranty deed of said premises, signed and sealed by the plaintiff, and demanded of him a deed of said premises in ; but the defendant refused to execute and deliver said or any deed to the plaintiff. 3. [As in paragraph 4, preceding form.] 4. That on the day of , 19 , in pursuance o\ said agreement, the plaintiff delivered, and the defendant took, posses- sion of the premises so to be conveyed to the defendant, and that defendant has ever since occupied, and now occupies, the same. Wherefore, the plaintiff prays judgment, that the defendant con- vey to the plaintiff said lot in , pursuant to the contract, and for the costs of this action. „ „ , . .«. A. B., Attorney for plaintiff. [Verification.] FORM No. 1057 — By vendee, to compel specific performance of contract to convey real estate under which possession was given. (In Noyes v. Schlegel, 9 Cal. App. 516; 99 Pac. 726.) x [Title of court and cause.] Comes now the plaintiff above named, and for cause of action against the defendants, alleges : 1. That on the 24th day of February, 1904, the plaintiff and the defendant L. Schlegel entered into a certain contract and agree- ment, in writing, whereby said defendant agreed to sell and transfer to this plaintiff certain lots, pieces, and parcels of land situate in the county of Los Angeles, state of California, and more particularly described as follows, to wit : [Here follows description of said prop- erty] , for the sum of $625, gold coin of the United States, payable in instalments as provided in said contract. * * * A copy of the said agreement of February 24, 1904, is hereunto attached, marked " Exhibit A," and made a part hereof. l This action involved, in addition to property wholly paid for, certain other lots upon which instalments remained unpaid. The defendant contended that he was released from his obligation to convey because the plaintiff had failed to pay some of the instalments within the time limited by the contract. The court held that the defendant had, by express oral agreement, and by the acceptance of overdue pay- ments, and in other ways, waived his right to forfeiture for these defaults or delays in payment: Noyes v. Schlegel, 9 Cal. App. 516, 99 Pac. 726, 727. 1762 SPECIFIC PERFORMANCE. [Tit. XVI. 2. That thereafter, and on the 12th day of July, 1906, the said agreement was duly recorded in the office of the county recorder of the county of Los Angeles, in book 726 of deeds, at page 267 thereof, records of said county. 3. That pursuant to the said agreement the plaintiff went into pos- session of the said property, and is now in possession thereof, and that plaintiff has made all of the payments on account of the pur- chase price of [said] lots * * * above described, provided in the said contract to be paid, together with interest on said payments as provided therein. That demand has been made upon the said defendant that he execute and deliver to this plaintiff the deed of conveyance to said lots * * * pursuant to his said contract with plaintiff, but said defendant has refused, and still refuses, to execute the necessary deed of conveyance to the said property, and refuses to carry out his said agreement in reference to the transfer of said lots or either of them. A copy of said demand in writing so served upon the said defendant is hereunto attached, marked "Exhibit B,' r and made a part of this complaint. * * * 4. That the said agreement of February 24, 1904, was and is a just and equitable contract as between plaintiff and said defendant, and the price therein agreed to be paid by the plaintiff for said lots * * * was the reasonable value thereof at the time the said con- tract was entered into, and the said contract, at the time of its execution, was, and it now is, a just and equitable and reasonable contract. * * * 5. * * * That the said defendant at all times herein mentioned was, and now is, the legal owner of the title to the said premises above described, and was, and now is, able to transfer to the plaintiff a good and sufficient title to the same; that the defendant Harriett Schlegel is the wife of L. Schlegel, and has, or claims to have, some interest in the said premises, and that said interest is subject to and inferior to the rights of the plaintiff herein ; that the defendants John Doe, Richard Roe, Mary Doe, and Jane Roe are sued herein under fictitious names, because the true names of said defendants are unknown to plaintiff ; that said last-named defendants have, or claim to have, some interest in the said premises adverse to plaintiff, and plaintiff asks that when their true names are ascertained that he may be allowed to amend his complaint by inserting the same herein. Wherefore, plaintiff prays judgment and decree of this court: Ch. CXX1X.] COMPLAINTS [OR PETITIONS].— FORMS. 1763 That the defendant be required to execute to this plaintiff a good and sufficient deed to the said property free and clear of all encum- brances, and that upon a refusal to so execute and deliver said deed a commissioner be appointed by this court to execute such deed, and that such transfer shall operate as a transfer to plaintiff of said premises; * * * that it be adjudged and decreed, that plaintiff is the owner in fee-simple of the said premises, free and clear of all encumbrances, and that defendants and each of them be restrained and enjoined from asserting any right, title, or interest therein or thereto; and for such other and further relief as may be just and equitable, and for costs. T ^ . _, ,,. Kemp & Collier, [Verification.] Attorneys for plaintiff. FORM No. 1058 — Against administrator of vendor's estate, for specific per- formance of contract made with decedent. (In Carr v. Howell, 154 Cal. 372; 97 Pac. 885.) [Title of court and cause.] Now comes the plaintiff in the above-entitled action, and com- plaining of the defendant, for cause of action alleges : 1. That Lelia Dwyer died at the city of New Orleans, in the state of Louisiana, on or about the 22d day of June, 1905, and was at the time of her death a resident of the said city and state, but left real property situated in the city of Los Angeles, county of Los Angeles, state of California. 2. That the said Lelia Dwyer left a will, and prior to the 8th day of August, 1905, the defendant, Wesley Clark, presented his petition to this court, praying that the said will be admitted to probate, and that he, the said Wesley Clark, be appointed administrator of the estate of the said Lelia Dwyer with the will annexed, and such pro- ceedings were had upon the said petition in this court that on the 8th day of August, 1905, an order was duly given and made in this court and in the said proceedings, admitting the said instrument to probate, and appointing the said defendant, Wesley Clark, adminis- trator of the estate with the will annexed, and the said Wesley Clark did thereafter, and on the 9th day of August, 1905, duly qualify as such administrator by giving the bond and taking the oath required by law, and thereupon letters of administration of the estate of the said Lelia Dwyer with the will annexed were duly issued to him, said 1764 SPECIFIC PERFORMANCE. [Tit. XVI. Wesley Clark, and he, the said Wesley Clark, ever since has been, and now is, the duly appointed, qualified, and acting administrator with the will annexed of the said Lelia Dwyer, deceased. 3. That during the lifetime of the said Lelia Dwyer, and on or about the 4th day of March, 1905, she was the owner of the following- described parcel of land : [Here follows description of land] ; and that she died seized of the said land (subject to the written agree- ment hereinafter set out). * * * 4. That on or about the 4th day of March, 1905, plaintiff and defendant entered into * * * a certain agreement, in writing, which agreement was and is in words and figures following, to wit : [Here the said agreement is set out.] * * * 5-8. Plaintiff further alleges that he paid to the said Lelia Dwyer, upon and under and in pursuance of said contract, the said sum of: $1,000, as part payment for said tract of land, as recited in said agreement; and prior to the 13th day of May, 1905, to wit, on the 26th day of April, 1905, plaintiff offered to pay unto the said Lelia Dwyer, and tendered to her, * * * the further sum of $9,000, in cash, and did at the same time offer to deliver the six promissory notes signed by the plaintiff, each in the sum of $15,000, due respect- ively on or before one, two, three, four, five, and six years, payable to the said Lelia Dwyer, or her order, [etc., stating the offer to per- form the remaining conditions of the contract on the part of the plaintiff to be performed] ; * * * that plaintiff then and there was, and ever since has been, and now is, able, ready, and willing, and now offers, to pay all sums of money by him to be paid under the terms of the said written agreement and to deliver the notes and mortgage required thereby to the said defendant upon the execution of the deed of conveyance to the plaintiff as provided in the said agreement [etc.] ; * * * but the said Lelia Dwyer failed and refused and neglected to [accept said tender] or deliver such con- veyance. 9. [Here follows averment as to tender made to the representative after his appointment and qualifying aforesaid.] 10. Plaintiff further avers that the said sums of money agreed by him to be paid for the said property as in the said contract of March 4, 1905, set forth, and amounting altogether to the sum of $100,000, Os CXXTX.J CROSS-COMPLAINT, ANSWERS.— FORMS. X765 was the full and fair value of the said property at the time the said contract was made. * * * Wherefore, [etc., following with the prayer]. John S. Chapman, and Barker & Bowen, [Verification.] Attorneys for plaintiff. §452. CROSS-COMPLAINT [OR CROSS-PETITION]. FORM No. 1059 — By defendant, to quiet title against plaintiff who sues for specific performance. (In Gish v. Ferrea, 10 Cal. App. 53; 101 Pac. 27.) 1 [Title of court and cause.] Defendant, J. P. LeFevre, files this his cross-complaint against Mary F. Gish, and alleges : 1. That cross-complainant, J. P. LeFevre, is now, and for a long time has been, the owner, and entitled to the possession, of that cer- tain piece or parcel of land situate, lying, and being in the city and county of San Francisco, state of California, and bounded and described as follows, to wit : [Here follows description of said prop- erty.] 2. That said Mary F. Gish claims and asserts an interest therein adverse to cross-complainant, and that the said claim of said Mary F. Gish is without any right whatever, and that said Mary F. Gish has no estate, right, title, or interest whatever in said land or premises, or any part thereof. [Concluding part as in actions to quiet title generally.] §453. ANSWERS. FORM No. 1060 — Denial of readiness to convey. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition] : Denies that the plaintiff was ready or willing to convey the prem- ises as alleged, or at all; but [state refusal or inability to convey according to the fact]. [Etc.] l The cross-complaint In Gish v. Ferrea, eupra, was filed with the answer, the latter containing a specific denial of the averments of the complaint, the action being for specific performance. Tury's PI.— 112. 1766 SPECIFIC PERFORMANCE. [Tit. XVI> FORM No. 1061 — Denial of payment or tender. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition] : Denies that the plaintiff has ever paid or tendered to the defend- ant $ , the residue of the purchase money agreed to be paid. [Etc.] FORM No. 1062 — Demand after plaintiff's tender. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition] r That after the making of the tender alleged, and on the day of , 19 , at , the defendant requested the plaintiff to pay him said sum, but the plaintiff then and ever since refused to- pay the same. [Etc.] FORM No. 1063— Denial of title. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition] r Denies that the plaintiff was at the time mentioned, or that at any time since has been, seized of an estate in fee-simple in said premises [or any estate therein], and avers in this connection that plaintiff could not make or procure to be conveyed a good and sufficient title [or any title] thereto to defendant, free and clear of encumbrances, as he had covenanted to make by his agreement with the defendant herein. FORM No. 1064 — Denial of performance. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition] : Denies that said took possession of the said premises, or made the said improvements thereon alleged, or any improvements thereon, or that defendant has in any manner performed the said co«- tract on his part. Ch. CXXIX.] ANSWERS.— FORMS. 1767 FORM No. 1065 — Defense of rescission of contract by agreement of the parties. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition] : That after the making of the contract alleged, and before any breach of the same, to wit, on [or about] the day of , 19 , it was agreed by and between the plaintiff and the defendant that said contract should be waived, abandoned, and rescinded ; and they then waived, abandoned, and rescinded the same accordingly. [Etc.] FORM No. 1066 — Defenses — (1) denials, (2) inadequate and unfair consid- eration and fraudulent representations. — Action for spe- cific performance of contract to convey land. (In Cummings v. Roeth, 10 Cal. App. 144; 101 Pac. 434.) [Title of court and cause.] Come now the defendants, and for answer to plaintiff's complaint, allege and deny as follows, to wit : Defendants deny that on the 26th day of March, 1906, plaintiff, Annie E. Cummings, and defendant George Roeth entered into an agreement, in writing, whereby said Roeth agreed to sell to said Annie E. Cummings the aforesaid property in plaintiff's complaint herein described, or to execute or deliver to her a deed thereof, con- veying the same to her free and clear of all encumbrances thereon, in consideration of the sum of $20,000, in gold coin of the United States, to be paid to him, and the delivering and assignment to him, the said George Roeth, of forty bonds of $1,000 each of the American Mag- nesite Company, a corporation, or that said money and bonds said Annie E. Cummings therein agreed to pay, or transfer or deliver, to said Roeth therefor, or that said money and said bonds were then and there a full or adequate consideration or price for said prop- erty; or that said contract was in all respects or at all just or reason- able; and in this connection defendants allege that said forty bonds were not of the value of $1,000 each, or of any market value, and would not be of any value whatever to defendants; and defendants allege that $20,000 is not a fair, or full, or adequate consideration for said land and premises. [Here follow other denials of the averments of the complaint con- forming to the defense made.] 1768 SPECIFIC PERFORMANCE. [Tit. XVI. [Defense of inadequate and unfair consideration and of fraudulent representa- tions.] For a further and separate answer to plaintiff's amended com- plaint herein, defendants allege : 1. Defendants, upon their information and belief, allege that the bonds of the American Magnesite Company are not worth their par value, and are of very little or no value, and are of a value, if any, not exceeding $100 per bond. 2. Defendants allege that on said 26th day of March, 1906, plaint- iff represented that the bonds of said American Magnesite Company covered property known as the Kose Brick Company, whereas, in truth and in fact, on said 26th day of March, 1906, said bonds of the American Magnesite Company did not cover or include the Rose Brick Company or any part thereof. 3. That on said 26th day of March, 1906, plaintiff represented that the bonds of said American Magnesite Company were of their face value, that is to say, of the value of $1,000 per bond, whereas, in truth and in fact, on said 26th day of March, 1906, or at any time since said date, said bonds have not been of any value other than $100 per bond, and that they are not marketable at $100 per bond, or at any value whatever, and their value is not capable of any pecuniary estimation. 4. Defendants, upon their information and belief, allege that the plaintiff is, by fraud and false representation, endeavoring to force defendants to convey said premises to plaintiff for an inadequate and unjust consideration, to wit, the sum of $20,000, and that the pre- tended forty bonds of the American Magnesite Company are of no value, and do not form any part of the consideration for the convey- ance of said property. Wherefore, defendants pray that plaintiff take nothing by this, her said action, and that defendants may have judgment for costs, and for such other and further relief in the premises as may seem just. "Welles Whitmore, [Verification.] Attorney for defendants. Ch. CXXIX.] ANSWERS.— FORMS. 1769 FORM No. 1067 — Defenses — (1) that contract was not fair or reasonable, (2) withdrawal and rescission of contract. — Action relat- ing to sale of mining property. (In Mitchel v. Gray, 9 Cal. App. 423; 97 Pac. 160.) [Title of court and cause.] Now comes the defendant and answers to the complaint of plaint- iffs herein, as follows: 1. Defendant admits that upon July 21, 1905, plaintiff George G. Skillen was the owner of the Lanky Bob quartz-mine, described in plaintiff's complaint, and upon that date executed a contract, a copy of which is set out in said complaint, and marked "Exhibit A." 2. Defendant denies that there was or is any consideration, ade- quate or otherwise, for said agreement; and denies that said agree- ment is or was in all respects fair or reasonable, or in any respect fair or reasonable. 3. Defendant denies that plaintiff Charles E. Mitchel has complied with all or any of his covenants under said agreement, said exhibit A; denies that said Mitchel paid the first payment or any payment to plaintiff George G. Skillen, provided for in said agreement ; denies that said agreement was, at the commencement of this action, or at any other time, in full force or effect, or that the said contract ever had at any time any force or effect whatever. 4. [Here follow particular averments and denials in support of said defenses:] * * * That on or about October 5, 1905, and prior to any tender to him by plaintiff Mitchel thereunder, said Skil- len notified said Mitchel that he revoked and rescinded said agree- ment, exhibit A, and withdrew from said Mitchel all authority to sell said Lanky Bob mine, such notice being in writing and as fol- lows: To Charles A. Mitchel: You are hereby notified that I withdraw the option here- tofore given you, July 21st, 1905, for the purchase of the Lanky Bob quartz-mining claim, situated in Liberty Mining District, county of Siskiyou, state of California. I have concluded to make other arrangements and not to wait any longer. Dated October 5th, 1905. George G. Skillen. "Wherefore, defendant prays that said action be dismissed and for his costs herein incurred. R. S. Taylor, Attorney for defendant. 1770 SPECIFIC PERFORMANCE. [Tit. XV!. §454. JUDGMENTS [OR DECREES]. FORM No. 1068— For plaintiff. (In Noyes v. Schlegel, 9 Cal. App. 516 ; 99 Pac. 726.) This cause coining on regularly for trial on the 6th day of January, 1308, before the court, without a jury, a jury having been expressly waived, John W. Kemp appearing as attorney for the plaintiff, and Frank M. Porter and Trusten P. Dyer appearing as attorneys for the defendants, oral and documentary evidence was introduced on behalf of the plaintiff and the defendants, and the same having been closed, the court files its findings and decisions in writing, and orders judgment in favor of the plaintiff. Wherefore, by reason of the law, and the findings aforesaid : It is hereby ordered, adjudged, and decreed, that the plaintiff, L. B. Noyes, is the owner in fee-simple, and entitled to a conveyance of lots [here described], and that the defendant be and he is hereby required to execute and deliver to the plaintiff a good and sufficient deed to the said property, conveying the same to the plaintiff free and clear of all encumbrances. [It is further ordered, adjudged, and decreed, that upon the pay- ment to the said defendant of the sum of $625 by the plaintiff herein, that the defendant execute and deliver to the plaintiff a good and sufficient deed of conveyance, conveying to the plaintiff lots (here other lots involved in the action are described) free and clear of all encumbrances.] It is further ordered, adjudged, and decreed, if the said L. Schlegel shall fail, refuse, and neglect to make such conveyance, that the clerk of this court be and he is hereby appointed a commissioner to exe- cute such deed or deeds, and that such transfer when made by such clerk appointed as such commissioner shall operate as a transfer to plaintiff of the said premises. It is further ordered, adjudged, and decreed, that upon the pay- ment of the said sum of $625 as aforesaid, and upon the execution of the said deed of conveyance by defendant, or in lieu thereof by the clerk of this court as hereinbefore provided, the defendant be and he is hereby restrained and enjoined from thereafter asserting any right, title, or interest in or to any of the property described in plaintiff's complaint. It is further ordered, adjudged, and decreed, that the plaintiff do Ch. CXXIX.] JUDGMENTS [OR DECREES].— FORMS. 1771 have and recover of the defendant L. Sehlegel his necessary costs and disbursements incurred in this action, taxed at $34.60. Dated this 20th day of January, 1908. George H. Hutton, Judge of Superior Court. FORM No. 1069— For defendant. (In Cummings v. Roeth, 10 Cal. App. 144; 101 Pac. 434.) [Title of court and cause.] [After preliminary recitals:] Wherefore, by reason of the law and by the findings aforesaid, it is by the court hereby ordered, adjudged, and decreed, that plaint- iff take nothing by her action herein against the defendants, or either of them, and that defendants do have and recover of and from the plaintiff their costs and disbursements incurred herein, amounting to the sum of $69. Judgment entered this 4th day of September, 1907. John P. Cook, Clerk. By A. A. Rogers, Deputy Clerk. FORM No. 1070 — Decree quieting title of cross-complainant in an action com- menced by plaintiff for specific performance. (In Gish v. Ferrea, 10 Cal. App. 53; 101 Pac. 27.) [Title of court and cause.] This cause came on regularly to be heard on the 21st day of August, 1907, H. D. Newhouse appearing for plaintiff, and Berry & Brady appearing for defendants, and for cross-complainant, J. P. LeFevre. The court having heard all the evidence and proofs produced herein, and having considered the same, and being fully advised in the premises, and it appearing therefrom that during the month of September, 1905, defendant Virginia Ferrea was the owner, in pos- session of, and entitled to the possession of, that certain lot [here follows description of said property]. That on or about the 9th day of February, 1906, by mesne convey- ances, the said property was sold to defendant J. P. LeFevre, who was also the cross-complainant herein, and that the said J. P. Le- Fevre now is, and ever since said 9th day of February, 1906, has been, the owner in fee-simple and entitled to the possession of the 1772 SPECIFIC PERFORMANCE. [Tit. XVI. said lot, piece, and parcel of land, together with the improvements thereon ; that the claim of Mary F. Gish in and to the said property is without any right whatever, and that the said Mary F. Gish has no estate, right, title, or interest in or to said land or premises or in any part thereof. It is therefore hereby ordered, adjudged, and decreed, that defend- ants herein have judgment for their costs in this action, and that plaintiff take nothing by said action. It is further ordered, adjudged, and decreed, that J. P. LeFevre, the cross-complainant herein, is the owner in fee-simple absolute of the above-described premises and every part thereof, and the im- provements thereon, and that Mary F. Gish has no estate or interest in or to said premises or any part thereof, or the improvements thereon, and that the said Mary F. Gish be forever debarred from asserting any claim whatever in or to said land or premises or any part thereof, or the improvements thereon, adverse to the interest of cross-complainant, J. P. LeFevre. Let judgment be entered accordingly. Done in open court, this 15th day of April, 1908. J. M. Seawell, Judge. §455. ANNOTATIONS. — Specific performance. 1, 2. Mutuality of remedy. 3. Limitations of the remedy. — Reference. 4. Agreement to give personal services not enforceable specifically. 5. Contract to enforce transfer of corporation stock. 6. Contract for return of stock. — When enforceable. 7. Party can not both rescind and affirm. 8. Action in personam. 9. Right, when negatived by the bill itself. 10. Joinder with action for damages. 11, 12. Essential averments. — Complaint deficient. 13-15. Adequate consideration must be shown. 16. Distinction as between executed and executory contracts. 17. Contracts must be equitable. 18-21. Fairness of contract must affirmatively appear. 22. Bill in equity to redeem personal property. 23. Tender. — When unnecessary to plead. 24. Prayer for alternative relief. 1. Mutuality of remedy. — Equity will conditions of the contract upon which not enforce a contract where there is he relies: Coonrod v. Studebaker, 53 want of mutuality in reference to the Wash. 32, 101 Pac. 489, 490. remedy sought to be enforced: Los An- 3. Limitations of the remedy of spe- geles & B. O. & D. Co. v. Occidental Oil cific performance of contracts: See Tur- Co., 144 Cal. 528, 532, 78 Pac. 25. ley v. Thomas (Nev.), 101 Pac. 568, 574- 2. Specific performance of a contract 579. can not be enforced by a party unless 4. Agreement to give personal services he himself is able to comply with the not enforceable specifically. — Agreement Ch. CXX1X.] ANNOTATIONS. 1773 of a daughter to support and give per- sonal care and attention to her mother during the remainder of her life in con- sideration of receiving from the mother a deed of certain property can not be sipecifically enforced by the mother: Grimmer v. Carlton, 93 Cal. 189, 194, 28 Pac. 1043, 27 Am. St. Rep. 171. See Cooper v. Pena, 21 Cal. 403; King v. Gildersleeve, 79 Cal. 504, 509, 21 Pac. 961. 5. Contract to enforce transfer of cor- poration stock. — A corporation is not a necessary party defendant in an action against a stockholder to specifically en- force a contract to transfer stock to the plaintiff and to compel him to account for and pay over dividends, although it is not improper to make the corporation a defendant: Say ward v. Houghton, 82 Cal. 628, 630, 23 Pac. 120. 6. Contract for return of stock. — When enforceable. — Specific performance of contract for return of stock in corpora- tion pledged as security for debt may be enforced by the pledgeor upon pay- ment or tender of the amount of the in- debtedness where the stock has no mar- ket value and where no other shares of such corporation are in the market for sale: Krouse v. Woodward, 110 Cal. 638, 642, 42 Pac. 1084. See Senter v. Davis, 38 Cal. 450; Adams v. Messinger, 147 Mass. 185, 17 N. E. 491, 9 Am. St. Rep. 679; Cushman v. Thayer Mfg. Co., 76 N. Y. 365, 32 Am. Rep. 315; Johnson v. Brooks, 93 N. T. 337, 342. 7. Party can not both rescind and af- firm.— A party can not, while he re- tains the benefit of a substantial per- formance, totally defeat an action for the price which he has agreed to pay, or for specific performance on his part, on the ground that the plaintiff has not completed the contract. He can not at the same time affirm the contract by re- taining its benefits and rescind it by re- pudiating its burdens: German Sav. Inst. v. DeLaVergne R. M. Co., 70 Fed. 146, 17 C. C. A. 34, cited in Turley v. Thomas, 31 Nev. 181, 101 Pac. 568, 573. 8. Action in personam. — An action for specific performance of a contract to convey real estate is one in personam: Silver Camp Mining Co. v. Dickert, 31 Mont. 488, 78 Pac. 967, 67 L. R. A. 940, 3 Am. & Eng. Ann. Cas. 1000; Close v. Wheaton, 65 Kan. 830, 70 Pac. 891. 9. Right, when negatived by the bill Itself. — Where the complaint affirma- tively shows that the defendant is un- known to plaintiff, the right to specific relief is negatived by the bill itself: Bell v. Bank of California, 153 Cal. 234, 239, 94 Pac. 889, citing Columbine v. Chichester, 2 Phila. 27; Roanoke St. R. Co. v. Hicks, 96 Va. 510, 32 S. E. 295. 10. Joinder with action for damages. — The distinction in the English courts between an equitable action for specific performance and an action for damages triable only in a court of law is gener- ally abolished by statute. Under the code, the plaintiff may join an action for specific performance with an action for damages upon the principle that he is entitled to relief in damages where the specific relief can not be granted: Huey v. Starr, 79 Kan. 781, 101 Pac. 1075, 104 Pac. 1135, citing Civ. Code, §10, Gen. Stats. 1901, §4438; Henry v. McKittrick, 42 Kan. 485, 22 Pac. 576. 11. Essential averments. — Under sec- tion 3391 of the Civil Code of California, the complaint in an action by a vendor against a vendee for the specific per- formance of an executory agreement for the sale of land, must affirmatively show, first, that the vendee has received an adequate consideration for the con- tract, and, second, that the contract is, as to him, just and reasonable. Where the complaint is lacking in these es- sentials it is insufficient: White v. Sage, 139 Cal. 613, 87 Pac. 193. 12. Complaint deficient In essential averments. — A complaint in an action to enforce specific performance of contract by the vendor in an executory agree- ment for the sale of land, is insufficient where there is no allegation whatever as to the value of the land, nor any averment that the price was adequate or in fair proportion to the value of the land, nor that the defendant ever had possession of the land, nor of any other facts going to show that the considera- tion of the contract of the defendant to buy the land was adequate, or that, as to him, it was just and reasonable. A court of equity can not enforce specific performance where the complaint is lacking in these essentials: White v. Sage, 149 Cal. 613, 87 Pac. 193. 13. Adequate consideration must be shown. — In an action for the specific performance of a contract for the sale of lands, it is necessary to allege and show to the court an adequate consid- 1774 SPECIFIC PERFORMANCE. [Tit. XVI. eration for the performance of the con- tract sought to be enforced: Nicholson v. Tarpey, 70 Cal. 608, 12 Pac. 778; Arguello v. Bours, 67 Cal. 447, 8 Pac. 49; Windsor v. Miner, 124 Cal. 492, 57 Pac. 386; Kiger v. McCarthy Co., 10 Cal. App. 308, 101 Pac. 928, 929. 14. Specific performance will not be decreed under section 3391 of the Cali- fornia Civil Code unless there is ade- quate consideration: Morrill v. Everson, 77 Cal. 114, 19 Pac. 190; Flood v. Tem- pleton, 148 Cal. 374, 83 Pac. 148. 15. A complaint to enforce specifically a contract for the purchase of real es- tate, but which fails to allege adequacy of consideration for the purchase, may nevertheless be deemed good as an ac- tion for damages for the breach of the contract set forth in the complaint, and the full relief sought, except specific performance, may be awarded there- under: Kiger v. McCarthy Co., 10 Cal. App. 308, 101 Pac. 928, 929. 16. Distinction as between executed and executory contracts. — A distinction as to the rule is made between executed and executory contracts. "Where the parties to an executed contract have knowingly and deliberately fixed upon the price, however great or small, there is no occasion for interference by a court; for owners have the right to sell their property for what they please, and purchasers have a right to pay what they please: Harris v. Tyson, 24 Pa. 347, 64 Am. Dec. 661; Davidson v. Little, 22 Pa. 245, 247, 60 Am. Dec. 81. 17. Contracts must be equitable. — Con- tracts perfectly valid, free from fraud or mistake, may, nevertheless, be de- nied specific performance, if harsh, un- just, and unfair. And this doctrine ap- plies equally to vendor and vendee: White v. Sage, 149 Cal. 613, 87 Pac. 193; Cummings v. Roeth, 10 Cal. App. 144, 101 Pac. 434, 437. 18. Fairness of contract must affirm- atively appear. — In a suit for specific performance, it must be affirmatively shown that the contract is fair and iust, and that it would not be inequita- ble to enforce it: Agard v. Valencia, 39 Cal. 292, 302; Newman v. Freitas, 129 Cal. 283, 288, 61 Pac. 907, 50 L. R. A. 548; Sharp v. Bowie, 142 Cal. 462, 467, 76 Pac. 62. 19. A complaint for specific perform- ance, in order to make out a case good as against general demurrer, must state facts from which the court may deter- mine that the consideration is adequate, and that the contract is as to the de- fendant just and reasonable: Herzog v. Atchison etc. R. Co., 153 Cal. 496, 501, 95 Pac. 898, citing Cal. Civ. Code, § 3391. See Agard v. Valencia, 39 Cal. 292. 20. It is incumbent upon the plaintiff, under the rule that in a suit for specific performance it must be affirmatively shown that the contract is fair and just, to state such facts as will enable the court to decide whether the contract is of such a character that it would not be inequitable to enforce it: Herzog v. Atchison etc. R. Co., 153 Cal. 496, 95 Pac. 898; White v. Sage, 149 Cal. 613, 87 Pac. 193; Flood v. Templeton, 148 Cal. 374, 83 Pac. 148; Stiles v. Cain, 134 Cal. 170, 66 Pac. 231; Prince v. Lamb, 128 Cal. 120, 60 Pac. 689; Windsor v. Miner, 124 Cal. 492, 57 Pac. 386; Morrill v. Ever- son, 77 Cal. 114, 19 Pac. 190; Nicholson v. Tarpey, 70 Cal. 608, 12 Pac. 778; Bruck v. Tucker, 42 Cal. 346. 21. A complaint looking to the enforce- ment of a bare legal right to have the defendant comply with the contract of a predecessor, without showing that the contract as originally made was fair and just as between the parties, or that it would be equitable to enforce it, and which fails to show that the recovery of damages for a breach of the contract would not be an adequate remedy, is in- sufficient for obtaining a decree in spe- cific performance: Herzog v. Atchison etc. R. Co., 153 Cal. 496, 502, 95 Pac. 898. See Flood v. Templeton, 148 Cal. 374, S3 Pac. 148, and Senter v. Davis, 38 Cal. 450, as to necessity for showing that re- covery of damages for a breach of con- tract would not be an adequate remedy, a condition which is essential to obtain specific performance or any other form of equitable relief. 22. A bill In equity to redeem per- sonal property, held essentially a bill for specific performance: Angus v. Robin- son's Admr., 62 Vt. 60, 19 Atl. 993; Bell v. Bank of California, 153 Cal. 234, 238, 94 Pac. 889. 23. Tender. — When unnecessary to plead. — It is not necessary to plead a tender where the complaint shows that the defendant had refused to carry out the terms of the contract, arid that a tender would have been useless: Long Ch. CXXX.] CODE PROVISIONS, ETC. 1775 v. Needham, 37 Mont. 408, 96 Pac. 731, proper for the plaintiff to ask for al- 736; Finlen v. Heinze, 32 Mont. 354, 80 ternative relief, either for damages or Pac. 918; Christiansen v. Oldrich, 30 for appraisement of the value of that Mont. 446, 76 Pac. 1007. which may be decreed and of that which 24. Prayer for alternative relief.— In may not: Huey v. Starr, 79 Kan. 781, an action for specific performance of a 101 Pac. 1075, 1077, citing Henry v. Mc- contract, it is quite customary and Kittrick, 42 Kan. 485, 22 Pac. 576. CHAPTER CXXX. Revision or Reformation of Contracts. Page § 456. Code provisions I'*? § 457. Complaints [or petitions] l^ 76 Form No. 1071. For reformation of a deed for mistake. (Gen- eral form.) 111$ Form No. 1072. To correct and reform a deed to lands for mutual mistake 1776 Form No. 1073. To reform written instrument, and for specific performance of instrument as reformed. . . . 1778 § 458. Annotations 1780 §456. CODE PROVISIONS. When contract may be revised. California, § 3399. When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6108. North Dakota, Rev. Codes 1905, § 6619. South Dakota, Rev. Codes 1903, C. C. § 2349. Presumption as to intent of parties. California, § 3400. For the purpose of revising a contract, it must be presumed that all the parties thereto intended to make an equi- table and conscientious agreement. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6109. North Dakota, Rev. Codes 1905, § 6620. South Dakota, Rev. Codes 1903, C. C. § 2350. 1776 REFORMATION OF CONTRACTS. [Tit. XVI. Scope of inquiry on revision. California, § 3401. In revising a written instrument, the court may inquire what the instrument was intended to mean, and what were intended to be its legal consequences, and is not confined to the inquiry what the language of the instrument was intended to be. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6110. North Dakota, Rev. Codes 1905, § 6621. South Dakota, Rev. Codes 1903, C. C. § 2351. Specific enforcement of revised contract. California, § 3402. A contract may be first revised and then spe- cifically enforced. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6111. North Dakota, Rev. Codes 1905, § 6622. South Dakota, Rev. Codes 1903, C. C. § 2352. §457. COMPLAINTS [OR PETITIONS]. FORM No. 1071 — For reformation of a deed for mistake. (General form.) [Title of court and cause.] The plaintiff complains of the defendant, and alleges : 1. That on the day of , 19 , in consideration of $ , the defendants sold to the plaintiff the following-described prem- ises: [Give correct description of same.] 2. That on said day the defendant executed and delivered to the plaintiff a deed, which both parties supposed conveyed the said premises to the plaintiff, whereas the description of the premises in said deed was by mistake made as follows : [Give description as it appears in the deed.] Wherefore, the plaintiff prays that said deed may be reformed so as to describe said premises properly, and for such relief as is proper. A. B., Attorney for plaintiff. [Verification.] FORM No. 1072 — To correct and reform a deed to lands for mutual mistake. (In Home and Farm Co. v. Freitas, 153 Cal. 680; 96 Pac. 308.) [Title of court and cause.] Plaintiff for the cause of action against defendant alleges : 1. That plaintiff is, and at all times hereinafter mentioned was, a Ch. CXXX.] COMPLAINTS [OR PETITIONS].— FORMS. 1777 corporation organized and existing under the laws of the state of California. 2. That on the 1st day of April, 1903, plaintiff was the owner in fee of a tract of land situated in the county of Marin, state of Cali- fornia, consisting of 171 acres, and particularly described as follows : [Here follows description.] 3. That on the 1st day of April, 1903, plaintiff agreed to sell, and defendant agreed to purchase, said tract of 171 acres, * * * at the agreed purchase price of $8,633.82. 4-8. [Here follow averments as to the mutual mistake of the par- ties as to the extent and boundaries of said land, and the mistake in the plat and description thereof in the deed.] * * * and because of such mistake and incorrect delineation the tract of land included within the boundary lines delineated and shown upon said plat, and described in said deed to defendant, consisted of 187 acres instead of 171 acres, as both plaintiff and defendant believed at the time of the execution and delivery of said deed, and because of such mistake in said plat the said deed by plaintiff to defendant conveyed sixteen acres in excess and outside of the true boundary line of said tract of 171 acres. 9. That the sixteen acres of land in excess of said tract of 171 acres, erroneously and by mistake conveyed by plaintiff to defendant as aforesaid, is particularly described as follows: [Here follows description of lands conveyed by mistake.] 10. That plaintiff was at the date of the execution and delivery of said deed the owner of the fee-simple title to the said tract of sixteen acres in the last preceding paragraph particularly described. 11. That plaintiff did not discover or become aware of the mis- take * * * in delineating the boundary lines of said tract of 171 acres upon said plat as aforesaid, nor of the mistake thereby made in said conveyance to defendant, until the 8th day of April, 1903 ; that immediately upon discovery of said mistake plaintiff noti- fied defendant thereof, and demanded of defendant that said mis- take be corrected, and that defendant reconvey to plaintiff the said sixteen acres erroneously, and by mistake, conveyed to defendant as aforesaid, and plaintiff offered to prepare, and did prepare, the necessary deed reconveying to plaintiff the said sixteen acres of land, and also prepared a new deed conveying to defendant by proper and accurate description the said tract of 171 acres, and 1778 REFORMATION OF CONTRACTS. [Tit. XVI. offered to execute and deliver the same to defendant at its own expense, in exchange for defendant's deed reconveying to plaintiff the sixteen acres of land conveyed to defendant by a mistake as aforesaid, and plaintiff was, ever since has been, and now is ready and willing to prepare and cause to be executed at its expense all conveyances necessary to correct and rectify the said mistake and error in the description of said tract of land as aforesaid ; but defend- ant refused, and still refuses, to reconvey said sixteen acres of land to plaintiff, or to correct said mistake in any respect. 12. That said sixteen acres of land erroneously and by mistake conveyed by plaintiff to defendant as aforesaid was and is of the value of $60 per acre. Wherefore, plaintiff prays judgment: That the said deed of April 1, 1903, be reformed and corrected so as to express the true intent and meaning of the parties thereto; that it be adjudged and decreed that plaintiff is the owner in fee-simple of the land and premises described in the ninth paragraph of this complaint ; and that plaint- iff have and recover its costs from defendant ; and for such other and further relief as may be agreeable to equity. "VVm. Singer, Jr., and Guy Shoup, [Verification.] Attorneys for plaintiff. FORM No. 1073 — To reform written instrument, and for specific performance of instrument as reformed. k (Adapted from House v. Mc Mullen, 9 Cal. App. 664; 100 Pac. 344.) [Title of court and cause.] Now comes the plaintiff, and for cause of action against the defendant alleges : 1. That at all of the times hereinafter mentioned plaintiff was, and is now, the owner, seized in fee, in the possession, and entitled to the possession, of all that certain real property lying, being, and situate in the county of Fresno, state of California, particularly described as follows, to wit: [Here follows description of property owned by the plaintiff.] 2. That at all times hereinafter mentioned the defendant was, and is now, seized in fee and in the possession of all that real property lying, being, and situate in the county of Alameda, state of Califor- Ch. CXXX.] COMPLAINTS [OR PETITIONS].— FORMS. 177 mer was dealing knew of such incapacity is supplied in the follow- ing:] * * * that defendant received no consideration for the same, and, as he now ascertains, was wholly unacquainted with either the said Wight or the said Wakely; that this defendant did not at said or any time receive any consideration whatever for the signing of said note; that by reason of said incapacity of this defendant during said period, and particularly at the time of the signing of said note, defendant avers that he did not execute the note set out in the complaint herein, inasmuch as he was not capable at said time of comprehending and understanding the nature of the obligations of the contract be was entering into or the liability he was incurring thereby. Wherefore, this defendant prays, that plaintiff take nothing as against this defendant, and that this defendant have judgment for his costs and reimbursements in this action expended, and for such other relief as may be proper in the premises. Dunnigan & Dunnigan, [Verification.] Attorneys for defendant. §462. JUDGMENT [OR DECREE]. FORM No. 1078 — For defendant and cross-complainant. — Action to rescind contract for purchase of real estate, and to recover por- tion of purchase price paid. (In Kornblum v. Arthurs, 154 Cal. 246; 97 Pac. 420.) [Title of court and cause.] This cause came on regularly to be heard on the 26th day of November, 1906, before the court sitting without a jury, a jury trial having been duly and legally waived, David Goldberg, Esq., and Clarence Meily, Esq., appearing as counsel for plaintiff, and Tanner, Taft & Odell for defendant, Mary M. Arthurs. Said action was tried upon the complaint of plaintiff, the answer of defendant, Mary M. Arthurs, the cross-complaint of the defendant, Mary M. Arthurs, and the answer thereto by the plaintiff, and the evidence being closed, the cause was submitted to the court for its decision, and the court having filed its decision, in writing, in which it orders judg- ment according to the prayer of the cross-complaint and for the defendant, as against the original complaint. Wherefore, by reason of the law and the foregoing: 1790 RESCISSION. [Tit. XVI. It is ordered, adjudged, and decreed, that plaintiff take nothing by his complaint filed herein, and said complaint be hence dismissed ; and it is further ordered and adjudged, that there is due under the terms of the contract set out in the cross-complaint to the defendant, Mary M. Arthurs, from the plaintiff, the following sums: [a] the sum of $9,470, with interest thereon, at the rate of seven per cent per annum, from the 28th day of July, 1905, and [b] the further sum of $1,337.50, with interest thereon, at the rate of seven per cent per annum, from the 16th day of November, 1905. And it is further adjudged, that the plaintiff pay unto the defendant, Mary M. Arthurs, said several sums, with interest as aforesaid, up to the time of payment, within ten days from the entry of this judgment. And on failure to so pay, then it is ordered, adjudged, and decreed, that the said plaintiff be forever foreclosed and debarred from claiming any right, title, or interest in the contract set up in the cross-com- plaint or the real property described therein. It is further ordered and adjudged, that the defendant, Mary M. Arthurs, do recover from the plaintiff, M. S. Kornblum, her costs and disbursements herein, amounting to the sum of $61.50. Dated this 30th day of April, 1906. J. S. Noyes, Judge of Superior Court. §463. ANNOTATIONS.— Rescission. 1. Rescission an equitable remedy. 2, 3. Rescission for fraud or mistake. 4. Relief administered irrespective of form of action. 6, 6. Petition, when insufficient. 7. Pleading defense of rescission in the alternative. 1. Rescission an equitable remedy. — dence may establish: Clemens v. Clem- Complete and full justice is a funda- ens, 28 Wis. 637, 9 Am. Rep. 520; Leigh- mental doctrine of equity jurisprudence, ton v. Grant, 20 Minn. 325 (Gil. 298) ; and if damages, as well as rescission, Daniel v. Mitchell, 1 Story, 172, Fed. Cas. are essential to accomplish full justice, No. 3562; Stebbins v. Eddy, 4 Mason, they will both be allowed: Holland v. 414, Fed. Cas. No. 13342; Smith v. Bab- Western B. & T. Co. (Tex. Civ. App.), cock, 2 Woodb. and M. 246, Fed. Cas. 118 S. W. 218; Wintz v. Morrison, 17 No. 13009; White v. Denman, 1 Ohio St. Tex. 372, 67 Am. Dec. 658. 110; Willamas v. Sturdemant, 27 Ala. 2. Rescission for fraud or mistake. — 598; Moehlenpah v. Mayhew, 138 Wis. The rule supported by the weight of 561, 118 N. W. 826, 831. authority is that the facts pleaded must 3. Upon a bill filed for relief on the show a case of fraud and mistake, or ground of fraud, relief may be granted fraud or mistake, in the complaint in on the ground of mistake: Read's order to entitle the complainant to re- Admrs. v. Cramer, 2 N. J. Eq. 277, 34 lief upon either ground which the evi- Am. Dec. 204. Likewise, where an an- Ch. CXXXII.] ANNOTATIONS, ETC. 1791 swer averred mistake, relief may be given on the ground of fraud: Berry- man v. Graham, 21 N. J. Eq. 370. 4. Relief administered irrespective of form of action. — Under the form of pro- cedure whereby the distinction between forms of action is abolished, the court may in an action, — in effect, a suit to enforce a rescission which has been of- fered and refused, — administer equitable relief, regardless of the question whether under a former system of jurisprudence the action would be deemed an action in assumpsit for money paid,' or an action in equity to compel rescission and a return of the consideration: Spreckels v. Gorrill, 152 Cal. 383, 92 Pac. 1011, 1016, (to recover money alleged to have been paid as the price of corporate stock). 5. Petition, when insufficient. — A peti- tion in an action in equity to rescind an executed contract of exchange of real estate, and to set aside a deed on the ground of fraud, which does not plead sufficient facts to constitute fraud, and from which it is apparent that the plaintiff was not acting equitably in his offer of rescission, that he was not prompt in demanding a rescission, etc.; held insufficient: Town of Grand River v. Switzer, 143 Iowa 9, 121 N. W. 516, 517. 6. A complaint in equity for rescission of a contract can not be supported by averments as to a breach of a condition subsequent, or of an express warranty, or breach of the covenant, in the ab- sence of other grounds of equitable jurisdiction: Forster v. Flack, 140 Wis. 48, 121 N. W. 890, 891, citing Davison v. Davison, 71 N. H. 180, 51 Atl. 905; Raley v. Umatilla County, 15 Ore. 172, 13 Pac. 890, 3 Am. St. Rep. 142; Love v. Teter, 24 W. Va. 741. 7. Pleading defense of rescission in the alternative.— A defense of general denial, coupled with the special defense, stating that whatever agreement, if any, the defendant made for the purchase of stock referred to in plaintiff's petition was, by and with the consent of the plaintiff, rescinded; held, not bad for in- consistency between defenses: Palais Du Costume Company v. Beach (Mo. App.), 129 S. W. 270, 271. CHAPTER CXXXII. Cancelation of Instruments. Page § 464. Code provisions 1792 § 465. Complaints [or petitions] 1792 Form No. 1079. To annul a contract 1792 Form No. 1080. Supplemental complaint in action commenced by special administrators and continued by executors to quiet title and for cancelation of forged deed 1794 § 466. Answer 1799 Form No. 1081. Defense that instrument was executed under undue influence. — Action to cancel deed . . . 1799 § 467. Judgments [or decrees] 1800 Form No. 1082. Confirming deed, and quieting defendant's title thereunder. — Action to cancel deed alleged to have been executed under undue influ- ence 1800 Form No. 1083. Annulling deed, and quieting plaintiff's title as against the same. — Action for cancela- tion of forged deed 1801 §468. Annotations : 1802 1792 CANCELATION OF INSTRUMENTS. [Tit. XVL §464. CODE PROVISIONS. When cancelation may be adjudged. California, § 3412. A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a let- tered note succeeding and the difference there shown: Montana, Rev. Codes 1907, § 6115. a North Dakota, Rev. Codes 1905, § 6626. South Dakota, Rev. Codes 1903, C. C. § 2356. a North Dakota, § 6626. When a writ- judged void and the same be ordered to ten instrument, or the record thereof, be delivered up for cancelation and the may cause injury to a person against record thereof canceled, whether extrin- whom such instrument is void or void- sic evidence is necessary to show its in- able, such instrument may, in an action validity or not. brought by the party injured, be ad- As to instrument obviously void. California, § 3413. An instrument, the invalidity of which is apparent upon its face, or upon the face of another instrument which is necessary to the use of the former in evidence, is not to be deemed capable of causing injury, within the provisions of the last section. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6116. South Dakota, Rev. Codes 1903, C. C. § 2357. Cancelation in part. California, § 3414. Where an instrument is evidence of different rights or obligations, it may be canceled in part, and allowed to stand for the residue. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6117. North Dakota, Rev. Codes 1905, § 6627. South Dakota, Rev. Codes 1903, C. C. § 2358. §465. COMPLAINTS [OR PETITIONS]. FORM No. 1079 — To annul a contract. [Title of court and cause.] Plaintiff complains of defendant, and for cause of action alleges: 1. That on the day of , 19 , plaintiff was the owner Ch. CXXXII.] COMPLAINTS [OR PETITIONS].— FORMS. 17!);; of a tract of land situate in the county of , in this state, and particularly described as follows, to wit: [Here describe] ; that said land was then, and ever since has been, and now is, of the value of $ 2. That plaintiff, on the date aforesaid, and for some time prior thereto and thereafter, was infirm in mind [or physically], the nature of his infirmity [or physical deficiency, such as loss of eyesight, etc.] being as follows: [Here allege the facts showing the plaintiff's con- dition] ; that by reason thereof the plaintiff was on said date incapac- itated from doing any business or making or entering into any contract whatever [or if the disability be such as to have been fraud- ulently taken advantage of, allege the facts accordingly] ; that on the date aforesaid, the defendant, knowing of the plaintiff's said incapacity and infirmity [or disability], and for the purpose of defrauding the plaintiff, procured and caused plaintiff to execute an instrument in writing in the form of a deed conveying, or purporting to convey, to the defendant said tract of land from the plaintiff; that the defendant falsely represented said instrument to be [here state specific representations, etc., constituting facts of fraud] ; that plaintiff, by reason of his condition of mind [or physical condition] aforesaid, believing such representations to be true, and by reason of said representations, and wholly and only on account thereof, executed such instrument in writing, and acknowledged the execu- tion thereof, and delivered the same to defendant ; that there was not then, and never was, any consideration given for such deed ; that on the day of , 19 , defendant caused said instrument in writing to be recorded as a deed in the office of the recorder of said county of Wherefore, plaintiff prays judgment: That said instrument in writing be delivered up by the defendant; that the same, together with the record thereof, be adjudged to be void ; that defendant, or, in the event of his refusal so to do, some competent officer or person appointed by the court herein, convey to plaintiff the legal title acquired by the defendant as hereinbefore alleged; that the court grant such other and further relief as the equity of the case may require ; and that plaintiff be given his costs of suit herein incurred. A. B., Attorney for plaintiff. [Verification.] 1794 CANCELATION OF INSTRUMENTS. [Tit. XVI. FORM No. 1080 — Supplemental complaint in action commenced by special administrators and continued by executors to quiet title and for cancelation of forged deed. (In Angus v. Craven, 132 Cal. 691; 64 Pac. 1091.) [Title of court and cause.] Now come the plaintiffs, James S. Angus, Thomas G. Crothers, and W. S. Goodfellow, executors of the last will and testament of James G. Fair, deceased, (substituted for James S. Angus, Thomas G. Crothers, and W. S. Goodfellow, surviving special administrators of the estate of James G. Fair, deceased,) and by leave of court first had and obtained, and by way of supplemental complaint, complain of and against the defendants, Nettie R. Craven, Marc Livingston,. George R. Williams, Stephen Roberts, Elizabeth Haskins, John Doe,. Richard Roe, Jane Doe, and Mary Roe, and for cause of complaint and action, allege as follows : [Averment of ownership in decedent.] 1. That on the 28th day of December, 1894, James G. Fair was the lawful owner in fee-simple, and in the actual possession by himself and his tenants, of all those certain premises or parcels of land situated, lying, and being in the city and county of San Francisco, state of California, and bounded and described as follows: [Here follows descriptions of said property.] [Averments as to decease, appointment of special administrators, etc.] 2. That on said 28th day of December, 1894, and while the said James G. Fair was still the owner in fee-simple of said described premises, the said James G. Fair died testate in the city and county of San Francisco, state of California, leaving said real estate and other property, real and personal, in said city and county, and being a resident of said city and county of San Francisco at and immedi- ately prior to the time of his death. 3. That thereafter, and on the 29th day of December, 1894, the last will and testament of said James G. Fair, deceased, together with a petition for the probate thereof, was filed for probate in this court, and such proceedings were thereafter had in this court in the matter of said estate that on the 2d day of January, 1895, an order was duly given, made, and entered by said court wherein and whereby these plaintiffs, together with one Louis C. Bresse, were appointed special Ch. CXXXIL] COMPLAINTS [OR PETITIONS].— FORMS. 17'Jo administrators of the estate of James G. Fair, deceased, with power and authority to collect and take charge of said estate in whatever county or counties the same should be found, to exercise such power as might he necessary in the preservation of said estate, and to preserve all the goods, chattels, notes, and effects of said deceased, all incomes, rents, issues, profits, claims, and demands of said estate, as well as to take the charge and management of, and enter upon and preserve from damage, waste, and injury, the real estate belonging to said estate, and for any such and all necessary purposes to com- mence and maintain or defend suits and other legal proceedings, as administrators, and to exercise such other powers and to do such other acts and things as should be directed or allowed by the further orders of this court; that thereupon, and on the last-named date, these plaintiffs, together with said Louis C. Bresse, duly qualified as such special administrators, special letters of administration were thereupon issued to them, which have never been modified, revoked, or set aside, and ever since said last-named date, and until the 16th day of November, 1896, said plaintiffs were the duly appointed, qualified, and acting special administrators of the estate of said James G. Fair, deceased, the said Louis C. Bresse having in the mean- time, and on the 22d day of April, 1896, died. [Possession by special administrators, and their succession by executors.] 4. That immediately upon their appointment as such special ad- ministrators, these plaintiffs and Louis C. Bresse entered into and upon, and took possession of, all the estate of said deceased, includ- ing the real estate hereinbefore particularly described, and thereafter continued in the possession and management of the same until said 22d day of April, 1896, since which last-named date and until the 16th day of November, 1896, these plaintiffs, acting as such sur- viving special administrators, continued in the actual and peaceable possession of said premises and every part thereof, and during all of said times collected and received all the rents, issues, and profits of said premises, amounting to the sum of $4,000 per month, or there- abouts; that on the 23d day of June, 1896, this court, by its order duly given and made, authorized these plaintiffs, acting as such special administrators, to commence this action ; that on the 16th day of November, 1896, and since the commencement of this action, an order and decree was duly given, made, and entered by said court 1796 CANCELATION OF INSTRUMENTS. [Tit. XVI. in the matter of the estate of said James G. Fair, deceased, wherein and whereby said last will and testament of said James G. Fair, deceased, was duly admitted to probate, and wherein and whereby these plaintiffs were duly appointed the executors of said last will and testament ; that thereafter, and on the same day, these plaintiffs duly qualified as such executors, and letters testamentary were duly and regularly issued out of this court to them, and they have ever since been, and still are, the duly appointed, qualified, and acting executors of the last will and testament of said James G. Fair, deceased, and since the said 16th day of November, 1896, these plaintiffs, as executors of the last will and testament of James G. Fair, deceased, have continued in the possession and management of all the estate of said deceased, including the real estate herein- before particularly described, and have continued in the actual and peaceable possession of said premises and every part thereof, and during all of said times have collected and received, and are now collecting and receiving, all the rents, issues, and profits of said premises, amounting to the sum of $4,000 per month, or thereabouts. [Claims of defendants under forged deed.] 5. That the defendants claim and pretend, and each of them claims and pretends, to have some estate, right, title, or interest in or to the said premises hereinbefore described adverse to these plaintiffs, as such executors of the last will and testament of the said James G. Fair, deceased, and adverse to said estate ; that said claim of said defendants is based, as these plaintiffs are informed and believe, and therefore aver, upon certain false, forged, and simulated deeds, pur- porting to have been executed by said James G. Fair in his lifetime, on the 8th day of September, 1894, and by which said false, forged, and simulated deeds it is claimed by the said defendants the said James G. Fair conveyed the premises hereinbefore described, or a portion thereof, to the defendant Nettie R. Craven, and which false, forged, and simulated deeds were recorded in the county recorder's office in the city and county of San Francisco, state of California, on the 19th day of June, 1896 ; that the defendants other than defendant Nettie R. Craven have, or claim to have, some interest in said described premises under and in subordination to the claims of the said defendant Nettie R. Craven, and all of said defendants have, or claim to have, some other interest in said described premises Ch. CXXXI1.] COMPLAINTS [OR PETITIONS].— FORMS. 1797 adverse to the said estate of said James G. Fair, deceased, and to these plaintiffs, as such executors, the nature of which claim is unknown to these plaintiffs. [Injury resulting from defendants' claims.] 6. That the claims and pretensions of said defendants are, and each of them is, false and unfounded either in law or in equity, but these plaintiffs aver that the assertion of the same by the said defend- ants, and by each of them, tends to cloud the title of the estate of said James G. Fair, deceased, to said described premises, to impair the market value thereof, obstruct these plaintiffs in the management of said premises, as executors of said last will and testament of said James G. Fair, deceased, to harass and annoy them in the possession thereof, and in the collection of the rents, issues, and profits thereof belonging to the estate, to depreciate the market value of said prem- ises, and thereby to inflict irreparable injury upon the said estate, and upon these plaintiffs, as executors of the last will and testament of said James G. Fair, deceased. 7. And these plaintiffs further aver that, unless restrained by the judgment and decree of this honorable court, the assertion of said false and fraudulent claim to said premises by said defendants will continue to harass and annoy these plaintiffs, as such executors, in the possession of said premises, will depreciate the market value of said premises, will obstruct, harass, and annoy these plaintiffs, as such executors, in the collection of the rents, profits, and issues of said described premises, and cloud the title of the estate to said premises. [As to fictitious parties.] 8. That the real names of the defendants sued herein by the fictitious names of John Doe, Richard Roe, Jane Doe, and Mary Roe are unknown to these plaintiffs, but, when the same are discov- ered, these plaintiffs pray that said real names may be inserted herein in lieu of said fictitious names. 9. That heretofore, to wit, on the 23d day of February, 1897, and since the commencement of this action, by the order of this court duly given and made herein, the plaintiffs, as executors of the last will and testament of James G. Fair, deceased, were substituted for themselves as surviving special administrators of said estate. Jury's PI.— 114. 1798 CANCELATION OF INSTRUMENTS. [Tit. XVI. [Prayer for cancelation, injunction, etc.] Wherefore, these plaintiffs as such executors, pray the judgment and decree of this court : That said defendants, and each of them, be summoned to answer to the premises; that they, and each of them, set forth what claim they have or pretend to have to said described premises, or to any part or portion thereof ; that the said deeds and the said certificates of acknowledgment and the aforesaid records of the aforesaid respective deeds be adjudged to be null and void, and that the same be canceled and removed as a cloud upon the title to said real property; that the said defendants be compelled to sur- render up the aforesaid pretended deeds and certificates of acknowl- edgment for cancelation, and that the same be canceled under the direction of the court ; that the said estate of said James G. Fair, deceased, may be decreed to be the lawful owner in fee-simple of said described premises, and every part and parcel thereof, as against the said defendants and each of them ; that defendants have not, nor has either of them, any right, title, interest, claim, or demand of any nature or description against said described premises or any portion thereof; that these plaintiffs, as executors of the last will and testa- ment of said James 6. Fair, deceased, are lawfully in possession of said described premises, and every part and parcel thereof, and law- fully entitled to collect the rents, issues, and profits thereof, as such executors, and that the defendants, and each of them, and all persons claiming under them, be forever enjoined and restrained from assert- ing or pretending to have any estate, right, title, or interest in said described premises, or any part or portion thereof, and from inter- fering with the possession thereof; and for such other and further relief, or both, in the premises as may be just and agreeable to equity. Pierson & Mitchell, Garret "W. McEnerney, Attorneys for plaintiffs. f Verification. 1 Ch. CXXXII.] ANSWER.— FORMS. 1799 §466. ANSWER. FORM No. 1081 — Defense that instrument was executed under undue influ- ence. — Action to cancel deed. (In Hemenway v. Abbott, 8 Cal. App. 450; 97 Pac. 190.) [Title of court and cause.] The defendant, for answer to the plaintiffs' complaint, denies and alleges as follows: 1-10. [The answer here specifically denies the allegations in the complaint, either directly or upon information and belief, as to plaintiff's being heirs at law of the decedent grantor to defendant; as to the infirmities of said decedent, his mental weaknesses, etc. ; as to the alleged influence exercised upon decedent's mind and will in procuring a deed to his property; as to the consideration named in the deed being fictitious, and that the same was afterwards returned by decedent to defendant ; as to any trust or trusts created thereby ; as to exercise of undue influence, fraud, importunities, or duress ; as to title in defendant being a mere naked legal title, "but on the con- trary the defendant alleges that the defendant has a good title, legal and equitable, to said lands and premises, and every part thereof"; as to title of defendant being illegal or void.] 11. That the said deed was made, executed, and delivered by said George W. Proctor, since deceased, on the 5th day of May, 1904, without any undue or any influence whatever being exercised by this defendant upon said George W. Proctor, and was made, executed, and delivered for the purpose of conveying to this defendant all of the property therein described in fee-simple absolute. Wherefore, defendant prays judgment: That the plaintiff take nothing by this action ; that the adverse claims of the plaintiff to the said real property described in the complaint be determined by the judgment of this court, and that by said judgment it be decreed that the said deed made by said George "W. Proctor to the defend- ant is good and valid; that the plaintiff has no estate or interest whatever in or to the lands or premises described in said complaint either as administratrix with the will annexed of the estate of said George W. Proctor, deceased, or otherwise, and that the title of the defendant thereto is good and valid, and that the plaintiff be for- ever enjoined and restrained from asserting any claim whatever in and to the said lands and premises adverse to the defendant; that the 1800 CANCELATION OF INSTRUMENTS. [Tit. XVI. defendant have such other and further relief as may be proper in the premises, and recover her costs herein. Charles G. Lamberson, and Frank Lamberson, , TT .„ J# , Attorneys for defendant. [Verification.] §467. JUDGMENTS [OR DECREES]. FORM No. 1082 — Confirming deed, and quieting defendant's title thereunder. — Action to cancel deed alleged to have been executed under undue influence. (In Hemenway v. Abbott, 8 Cal. App. 450; 97 Pac. 190.) [Title of court and cause.] This cause came on regularly for trial, before the court, without a jury, on the 18th day of September, 1906. Messrs. Lippitt & Lip- pitt appeared as attorneys for the plaintiff, and Charles G. Lamber- son appeared as attorney for the defendant; and the court having heard the testimony, and having examined the proofs offered by the respective parties, the cause having been argued by briefs submitted by the respective parties, and the court being fully advised in the premises, and having filed herein its findings of fact and conclusions of law, and having directed that judgment be entered in accordance therewith; now, therefore, by reason of the law and findings afore- said: It is hereby ordered, adjudged, and decreed : That the plaintiff take nothing by this action; that the deed made by George "W. Proctor to defendant, set out in the complaint herein, is good and valid; that the plaintiff has no estate or interest whatever in or to the lands and premises described in the complaint herein, to wit: [Here follows description of said property] , either as administratrix with the will annexed of the estate of said George W. Proctor, de- ceased, or otherwise, and that the title thereto is good and valid; that the plaintiff be and she is forever enjoined and restrained from asserting any claim whatever in or to the said lands and premises adverse to the defendant ; that the defendant have judgment against the plaintiff for her costs herein expended, hereby taxed at the sum of $ Dated, December 13, 1906. M. L. Short, Judge of Superior Court. Ch. CXXXII.] JUDGMENTS [OR DECREES].— FORMS. 1801 FORM No. 1083 — Annulling deed, and quieting plaintiff's title as against the same. — Action for cancelation of forged deed. (In Angus v. Craven, 132 Cal. 691; 64 Pac. 1091.) [Title of court and cause.] This cause having been regularly called and tried before the court sitting as a court of equity upon the equitable issues raised herein by the answer of the plaintiffs filed March 8, 1897, the cross-com- plaint of the defendant Nettie R. Craven, filed February 26, 1897, and upon the equitable issues joined herein between the intervener, Virginia Fair, and the defendant in said intervention, Nettie R. Craven; the defendants George R. Williams, Stephen Roberts, and Elizabeth Haskins having filed herein their written disclaimer, dis- claiming any interest of any nature or description in or to the prem- ises described in the complaint herein, or any part thereof; default of the defendant Marc Livingston having been duly entered of record for failure to appear or answer to the complaint of the plaintiffs herein, and the default of the defendants Elizabeth Haskins, Stephen Roberts, George R. Williams, and Marc Livingston, for failure to answer to the complaint in intervention having been duly entered of record, and the action having been dismissed as to the defendants sued under the fictitious names of John Doe, Richard Roe, Jane Doe, and Mary Roe, and the court having made and rendered its decision, and the findings of fact and conclusions of law having been filed herein, whereupon the plaintiffs and the intervener were awarded a decree that the deeds and the certificates of acknowledg- ment attached thereto, referred to in said findings, and the records thereof, are null and void, and removing the same as a cloud upon title, and that the said defendant Nettie R. Craven has no right, title, interest, claim, or demand of any nature against the premises described in said findings, or any portion thereof, and that the said defendant Nettie R. Craven is, and all persons claiming through or under her are, forever debarred, restrained, and enjoined from asserting or pretending that the alleged deeds are, or either of them is, valid or genuine, and from claiming or asserting any right or title to the said premises, or any part thereof, under said deeds, or either of them, and further awarding to the plaintiffs and inter- vener a judgment for their costs. It is now further hereby ordered, adjudged, and decreed, that the said deeds and the said certificates of acknowledgment referred 1802 CANCELATION OF INSTRUMENTS. [Tit. XVI. to in the pleadings herein and in said findings, and the records thereof, are, and each of them is, null and void, and that the same be and they are hereby removed as a cloud upon the title to the property described in said findings; that the defendant Nettie R. Craven has no right, title, or interest in, nor any claim or demand of any nature or description against, the said described premises or any part thereof, and that all persons claiming through or under her be and they hereby are forever debarred, restrained, and enjoined from asserting or pretending that said alleged deeds are, or either of them is, valid or genuine, or from claiming or asserting any right or title to the said premises, or any part thereof, under the said deeds, or either of them. Said premises are bounded and described as follows, lying and being in the city and county of San Francisco: [Here follows description of said property as the same appears in the complaint.] And it is hereby further ordered, adjudged, and decreed, that the plaintiffs and intervener do have and recover their costs herein, taxed at $3,849.50, against the defendant Nettie R, Craven. Dated December 1, 1897. Charles "W. Slack, Judge. §467. ANNOTATIONS. Cancelation distinguished from reformation. — Pleading. — A distinction must be observed between suits for reformation and suits for cancelation and rescission of a contract. In the former suits there must be shown not a mere mistake on one side, but a mutual mistake, or what is equivalent in the law to a mutual mistake, and,' in addition, an enforceable contract of the tenor and terms sought to be estab- lished by the suit for reformation. On the other hand, cancelation or rescission pro- ceeds upon the ground that there is no contract between the parties by reason of the mistake or fraud. Relief on evidence showing mistake may be had under a bill, the gravamen of which is fraudulent representation and undue influence, although the bill does not denominate the transaction as being one produced by mistake: Moehlenpah v. Mayhew, 138 Wis. 561, 119 N. W. 826, 830; Kyle v. Fehley, 81 Wis. 67, 51 N. W. 257, 29 Am. St. Rep. 866. Parties. — In an action to cancel a deed of trust, beneficiaries are not necessary parties defendant, since their interest is fully represented by the trustee: Watkins v. Bryant, 91 Cal. 492, 27 Pac. 775. TITLE XVII. Miscellaneous Civil Proceedings. Page Chapter CXXXIII. Summons and Citation. — Jurisdiction .... 1803 CXXXIV. Change of Place of Trial or Venue, Gen- erally. — Removal of Causes to Federal Courts 1812 CXXXV. Appearance and Default, and Substitution of Attorneys 1823 CXXXVI. Notices, Motions, and Orders 1828 CXXXVII. Affidavits, Depositions, and Stipulations. . 1836 CXXXVIII. Inspection of Writings, and Bill of Par- ticulars 1850 CXXXIX. Trials, Witnesses, and Proceedings for Contempt 1853 CXL. Nonsuit and Dismissal 1867 CXLI. Findings and Judgment 1871 CXLII. Costs, Executions, and Writs 1886 CXLIII. New Trials, Appeals [and Writs of Error] 1902 CXLIV. Certification of Public Records 1937 CHAPTER CXXXIII. Summons and Citation. — Jurisdiction. Page 5 469. Summons 1804 Form No. 1084. Judgment demanded . (California.) 1804 Form No. 1085. Alternative relief. (California.) 1804 § 470. Certificates, orders, etc 1805 Form No. 1086. Sheriff's certificate of service of summons. (Endorsed on original summons.) 1805 Form No. 1087. Notice of motion to quash summons or its service 1805 Form No. 1088. Order extending time to answer after decision on motion to quash 1806 Form No. 1089. Affidavit as basis of order for service by pub- lication 1806 S 471. Citations, orders, etc 1807 Form No. 1090. Citation. (Common form.) 1807 Form No. 1091. Order for citation to executor upon applica- tion by creditor 1807 Form No. 1092. Acknowledgment of service of citation 1808 (1803) 1804 SUMMONS AND CITATION. [Tit. XVII. Form No. 1093. Citation to executor and surviving widow ta show cause why family allowance should not be reduced 1808 Form No. 1094. Order sustaining demurrer to petition and dis- charging citation 1809 § 472. Annotations 1S10 §469. SUMMONS. FORM No. 1084 — Judgment demanded. (California.) [Title of court and cause.] The people of the state of California send greeting to , defendant : You are hereby directed to appear and answer the complaint in an action entitled as above, brought against you in the superior court of the state of California, in and for the county of , within days after the service on you of this summons, if served within this county, or within thirty days, if served elsewhere. *And you are hereby notified that unless you so appear and answer as above required, the plaintiff will take judgment for the sum of $ as demanded in the said complaint, as arising upon contract, and for costs.* Given under my hand and the seal of the superior court of the state of California, in and for the county of , this day of , 19 . [Seal.] C. D., Clerk. By E. F., Deputy Clerk. [Endorsed with name of the attorney for the plaintiff, and, if served and returned, with certificate as in form No. 1086, or affidavit as in form No. 1139, and date of filing.] FORM No. 1085— Alternative relief. (California.) [Title of court and cause.] [As in preceding form, except in the place of the paragraph starred thus (* *) insert the following paragraph:] * And you are hereby notified that unless you so appear and answer as above required, the plaintiff will take judgment for any money or damages demanded in the complaint as arising upon con- tract, or will apply to the court for any other relief demanded in the complaint [etc.].* Ch. CXXXIII.] CERTIFICATES, ORDERS. ETC.— FORMS. 1805 Statutory provisions as to process. — Each of the code states prescribes either the form or the substance of the summons and all processes upon which jurisdiction is founded. Space will not permit the correlation of these statutes, but it may be gen- erally said that the above forms of summons are representative of the forms pre- scribed in most of the states covered by this work. In all instances, however, the statutory forms, where prescribed, should be used, and the statutory provisions carefully observed. Under the procedure in some states, the summons is issued upon a praecipe, or request in writing directed to the clerk for the issuance thereof. The Iowa code (§ 3514) provides that the plaintiff may give a notice to the defend- ant before complaint (or petition) is filed, to the following effect: "That on or before a certain day [naming it] a petition will be filed in the office of the clerk of the district court of the state of Iowa, in and for the county of , claiming of you the sum of $ , as justly due the plaintiff on [here stating the nature of the obligation], and that unless you appear thereto and defend before noon of the second day of the term [naming it] of said court, which will commence on the day of , 19 , at the courthouse in the county of , state of Iowa, default will be entered against you and judgment [or decree] rendered thereon. "[Signature of the plaintiff or his attorney.]" §470. CERTIFICATES, ORDERS, ETC. FORM No. 1086 — Sheriff's certificate of service of summons. (Endorsed or original summons.) Sheriff's office, County of I hereby certify, that I received the within summons on the day of , 19 , and personally served the same on the day of , 19 , on , being the defendant named in said summons, by delivering to him, the said defendant, personally, in the county of , a copy of said summons, and a copy of the complaint in the action therein mentioned, which was attached thereto, and by then and there exhibiting to defendant the within original summons in said action. [Date.] M. N., Sheriff. 0. P., Deputy Sheriff. Sheriff's fee, $ FORM No. 1087 — Notice of motion to quash summons or its service. [Title of court and cause.] To , attorney for plaintiff : Please take notice, that defendant, appearing for this and no other purpose, will move the court at the courtroom [department No. ] thereof, on the day of , 19 , at o'clock M., or as soon thereafter as counsel can be heard, to quash the summons in this action [or to set aside the alleged service of the summons in this action!, and for an order quashing [or setting aside] said alleged 1806 SUMMONS AND CITATION. [Tit. XVII. service, on the ground that said summons is defective [or on the ground that the service of the summons was not properly made]. Said motion will be based on the summons in the action [or on the summons and the evidence of the alleged service thereof, endorsed on, or attached to, said summons, and (if used) on affidavits, copies of which are attached to this notice and served herewith]. [Date.] A. B., Attorney for defendant, for the purpose of said motion only. FORM No. 1088 — Order extending time to answer after decision on motion to quash. (In Anderson v. Schloesser, 153 Cal. 219; 94 Pac. 885.) [Title of court and cause.] The above-named defendant having made a special appearance in the above-entitled action for the purpose of moving the court to quash summons, it is ordered that he be and he is hereby granted ten days' time after decision on said motion within which to serve and file his demurrer or answer in said action. Dated March 9, 1905. F. A. Kelley, Judge of Superior Court. FORM No. 1089 — Affidavit as basis of order for service by publication.! (In Bantley v. Finney, 43 Neb. 794; 62 N. W. 213.) [Title of court and cause.] State of Nebraska, Lancaster County. J. R. Webster, being first duly sworn, on his oath says : I am the attorney of record of Richard C. Mc Williams, plaintiff in the above- entitled cause. On the 19th day of July, 1882, said plaintiff filed a petition in the district court of Lancaster County against Gotlieb Bantley, the object and prayer of which is to enforce a specific performance of a written contract for the sale of certain premises described as the southeast quarter of section 24, township 10 north, of range 7 east, of sixth principal meridian, made and entered into l The affidavit in form No. 10S9 is held to contain all the averments of fact neces- sary to authorize the plaintiff to make service upon the defendant by publication, and give the court jurisdiction of the defendant, if such service by publication should be made as provided by sections 79 and 80 of the Nebraska Code of Civil Procedure: Bantley v. Finney, 43 Neb. 794, 63 N. W. 213, 214. Ch. CXXXIII.] CITATIONS, ORDERS, ETC.— FORMS. ]8UT by and between the said defendant, as vendor, by J. P. Walton, his agent duly authorized in writing, and said plaintiff, as vendee, on or about the 15th day of June, 1882, for sale of said premises, at the price of $2,400, exclusive of agent's commission, $800 payable in hand, $533 1/3 on or before two years, and two like sums on or before three and four years, respectively, with interest at the rate of seven per cent per annum, to be secured by mortgage on said premises ; that said plaintiff is absent from the county of Lancaster, and affiant makes this affidavit in his behalf for that reason ; that said defendant is a non-resident, and resides at Johnstown, in the state of Pennsylvania, and is absent from the state of Nebraska, and service of summons can not be made within the state on him ; where- fore the plaintiff prays for service by publication. J. R. Webster. [Jurat.] §471. CITATIONS, ORDERS, ETC. FORM No. 1090 — Citation. (Common form.) [Title of court and cause.] The people of the state of to , greeting : By order of this court, you are hereby cited and required to appear before this court, at the courtroom of department No. thereof, at , in said county of , on , the day of , 19 , at o'clock in the noon of the day, then and there to [here state nature of matter concerning which appearance is required or testimony to be given]. Witness the Hon. , of our court in and for the said county of , with the seal of said court affixed, this day of ,19 . Attest: C. D., County Clerk. [Seal.] By E. F., Deputy Clerk. FORM No. 1091 — Order for citation to executor upon application by creditor. [Title of court and cause.] M. N., being a creditor of, and the person interested in, the estate of L. M., deceased, having this day presented to this court, and filed herein, his petition praying that X. Y., as executor of the last will of L. M., deceased, be required by the court to appear and render, for 1808 SUMMONS AND CITATION. [Tit. XVIL. the information of this court, an exhibit under oath showing the debts and liabilities of the estate of said L. M., deceased, and the assets and property belonging to said estate, and the condition thereof, and of the matters and things necessary or proper for the purpose of showing the condition of the affairs of said estate ; and this court, being satisfied that the facts alleged in said petition are- true, and considering and deeming the showing made by said appli- cant and petitioner sufficient to justify this court in granting the prayer of said petition : It is now hereby ordered and directed, that a citation be forthwith issued requiring and directing the said X. Y., as executor of the last will of L. M., deceased, to appear in this court in the courtroom of department thereof, at , on , 19 , then and there to render to this court, and on that day to file herein, an exhibit and statement under oath, showing and setting forth the following matters and things to wit: [Here state as to facts and reports to be presented.] It is further hereby ordered, that a copy of this order, and of the citation aforesaid, be served upon said executor at least days before the date of said hearing. [Date.] S. T., Judge. FORM No. 1092 — Acknowledgment of service of citation. (Annexed to cita- tion.) [Title of court and cause.] Service of a copy of the within citation, and also of a copy of the order to show cause, pursuant to which said citation was issued, and of a copy of the petition mentioned in said citation, is hereby admitted this 29th day of June, 1899. [Signature of executor.] FORM No. 1093 — Citation to executor and surviving widow to show cause why family allowance should not be reduced. [Title of court and cause.] The people of the state of to X. Y., as executor of the last will of L. M., deceased, and to T. M., widow and surviving wife of said L. M., deceased, greeting: You are hereby cited to be and appear in our court of the county of , at the courtroom thereof, department , at , in the city of , county of , on , the Ch. CXXXIII.] CITATIONS, ORDERS, ETC.— FORMS. 1809 day of ,19 , at o'clock M. of that day, then and there to answer the petition of R. M., as trustee [or heir at law and devisee, etc.] under the last will of L. M., deceased, praying for a modification of the order herein made on the day of , 19 , fixing a family allowance of $ , to said T. M., and that the allowance heretofore made and directed to be paid out of the estate of said L. M., deceased, be, by order, modified and reduced in the following respect: [Here state.] A copy of said petition is here- with served upon you. And you are required to then and there show cause, if any you have, why the prayer of said petition should not be granted. By order of our court, in the county of , this day of , 19 . [Seal.] W. D., Clerk. By M. N., Deputy Clerk. FORM No. 1094 — Order sustaining demurrer to petition and discharging cita- tion. [Title of court and cause.] The petition of M. N., a creditor, for a citation against T. M., widow of said L. M., deceased, to show cause why the family allowance under orders heretofore made should not be reduced, having been filed herein on the day of , 19 , and citation having been duly issued thereon and served on T. M., and she having made and filed herein her return or answer to said citation, and part of said answer being the demurrer to the said petition of said M. N., and the matter coming on regularly for hear- ing this day of , 19 , and the demurrer of said T. M. to said petition having been argued by counsel for the respective parties, was submitted to the court for decision ; and the court being fully advised in the premises: It is hereby ordered, that the said demurrer to said petition be and the same is hereby sustained, and the said T. M., is hereby dis- charged from said citation and said citation is hereby dismissed. [Date.] S. T., Judge. Form of return endorsed on a summons in an action to recover balance due for manufacturing, furnishing, and erecting certain machinery for the reduction of ores: Colorado Iron- Works v. Sierra Grande Min. Co., 15 Colo. 499, 504, 25 Pac. 325, 22 Am. St. Rep. 433. 1810 SUMMONS AND CITATION. [Tit. XVII. §472. ANNOTATIONS. — Summons and citation. — Jurisdiction. 1. General jurisdiction of state courts coextensive with its sovereignty. 2. Essentials of jurisdiction. 3. Consent as conferring jurisdiction. 4, 5. Consenting or agreeing to a continuance. 6. Answer praying for affirmative relief. 7. Jurisdiction to render personal judgment 8. Non-resident debtors. 9. Local actions. 10. Transitory actions. 11, 12. Government as party.— Jurisdiction of state courts. ' 13. Entry of judgment terminates jurisdiction. 14, 15. Publication of notice. 16. Purpose of affidavit for service by publication. 17. Defective service waived by answering over. 18. Time to answer pending motion to quash service. 19. Signification of word "process." 20. Process under Kansas statute. 1. General jurisdiction of the courts of a state is coextensive with its sover- eignty, and attaches to all the property and persons within the limits thereof: State ex rel. Mackey v. District Court, 40 Mont. 359, 106 Pac. 1098, 1101. 2. Essentials of jurisdiction.— Jurisdic- tion may be defined as the right to ad- judicate the subject-matter in a given case. To constitute this there are three essentials: First, the court must have cognizance of the class of cases to which the one to be adjudged belongs; second, the proper parties must be be- fore the court; and third, the point de- cided must be in substance and effect within the issues: Robinson v. Levy, 21/ Mo. 498, 117 S. W. 577, 582, quoting from and approving Munday v. Vail, 34 N. J. L. 422. 3. Consent as conferring jurisdiction. —Consent can not confer jurisdiction of the subject-matter, but it may confer jurisdiction of the person: Maxwell v. Frazier, 52 Ore. 183, 96 Pac. 548, 550, 18 L. R. A. (N. S.) 102, quoting the rule stated in 12 PI. & Pr. 126. 4. Consenting or agreeing to a con- tinuance of a cause from one term to another operates as a waiver to the same effect, and confers complete juris- diction: Baisley v. Baisley, 113 Mo. 544, 21 S. W. 29, 35 Am. St. Rep. 726; Peters v. St. Louis etc. R. Co., 59 Mo. 406; Seay v. Sanders, 88 Mo. App. 478. 5. Agreeing to reset a cause is like- wise a waiver, and confers jurisdiction: Columbia Brewery Co. v. Forgey, 140 Mo. App. 605, 120 S. W. 625, 628. 6. Answer praying for affirmative re- lief. — The defendant waives his right to object to the jurisdiction of the court when he has answered without objection to the jurisdiction, and has claimed af- firmative relief: Kitcherside v. Myers, 10 Ore. 21; Municipal Security Co. v. Baker Co., 33 Ore. 338, 54 Pac. 174; O'Hara v. Parker, 27 Ore. 156, 39 Pac. 1004; Killgore v. Carmichael, 42 Ore. 618, 72 Pac. 637. 7. Jurisdiction to render personal judg- ment. — A personal judgment in an ac- tion in personam can only be had after personal service of the defendant or his voluntary appearance in the action. Constructive service, such as service by publication, is ineffectual for this pur- pose: Silver Camp Min. Co. v. Dickert, 31 Mont. 488, 78 Pac. 967, 67 L. R. A. 940, 3 Am. & Eng. Ann. Cas. 1000. 8. Non-resident debtors. — Statutory requirements for obtaining jurisdiction of non-resident debtors, and for attach- ment of property within the territorial jurisdiction of the court, which require- ments are in derogation of the common- law mode of personal service, must be strictly complied with. Unless this is done in the case of such non-resident debtors who do not appear, the court acquires no jurisdiction for any purpose whatever as against them or their prop- erty. Even in proceedings in rem against the property of non-resident debtors the requirements as to publica- tion or citation as expressly provided by law must be observed, whereby they may have their day in court; otherwise, the court will acquire no jurisdiction Ch. CXXXIII.] ANNOTATIONS. 1811 or authority to adjudge a sale of their property to satisfy their debts: Smith v. Montoya, 3 N. Mex. 40, 1 Pac. 175. 9. Local actions, such, for example, as those relating to interests in lands, are usually laid in the district or the county where the subject-matter lies; but tran- sitory actions may be tried wherever personal service can be made on the defendant: State ex rel. Mackey v. Dis- trict Court, 40 Mont. 359, 106 Pac. 1098, 1101, construing Mont. Rev. Codes, § 6504. 10. Transitory actions. — Actions for in- juries to the person are transitory, and follow the person; and therefore, so far as the nature of the action is con- cerned, one foreigner may sue another foreigner in the courts of a state for a tort committed in another country, the same as on a contract made in another country: Dewitt v. Buchanan, 54 Barb. 31, cited in State ex rel. Mackey v. Dis- trict Court, 40 Mont. 359, 106 Pac. 1098, 1102. 11. Government as party. — Jurisdiction of state courts.— Where the government invokes the jurisdiction of a court, it submits to that jurisdiction; presenting a claim for its adjudication, it asks that the claim be adjudicated upon its merits, and allowed or rejected accordingly. If it sues, it is subject to the defense of offset upon the amount of whatever claim it shall establish, — a defense which does not controvert the claim, but is in the nature of a limited or quasi cross-suit against it, allowed, not beyond the . extent of the affirmative remedy, but only to the extent of de- feating that claim: United States v. McDaniels, 7 Pet. 1, 8 L. ed. 587; United States v. Ripley, 7 Pet. 18, 8 L. ed. 593; United States v. Robeson, 9 Pet. 319, 9 L. ed. 142, cited in Union Pacific R. Co. v. United States, 2 Wyo. 170, 191, where the proposition above stated as to jurisdiction, and the effect of submis- sion of a controversy thereto, is ap- proved, and application made of a ter- ritorial statute to the measure of relief where judgment goes against the gov- ernment. 12. The superior court has jurisdic- tion of an action brought to recover a statutory penalty by one who alleges title in himself and puts in issue by a verified answer the plaintiff's title, al- though the amount involved is less than $300 (this amount being the limit of jurisdiction In the Justice courts under the California statute, where the title to real property is not drawn in question): Randolph v. Kraemer, 106 Cal. 199, 201, 39 Pac. 533. For a specific averment in defense of a demand as a basis for certifying the case to a court of higher jurisdiction, see form No. 382, paragraph 3. 13. Entry of judgment terminates jur- isdiction of the court in general: Los Angeles v. Lankershim, 100 Cal. 525, 35 Pac. 153, 556; Ayres v. Burr, 132 Cal. 125, 64 Pac. 120. 14. Publication of notice. — It is set- tled in the state of California that where the statute requires that a no- tice be published for a designated num- ber of weeks in some newspaper pub- lished in the county, the same is fully satisfied by a publication once each week for the designated number of weeks in a daily newspaper published in the county: Sherwood v. Wallin, 154 Cal. 735, 739, 99 Pac. 191, citing People v. Reclamation Dist., 121 Cal. 522, 524, 50 Pac. 1068, 53 Pac. 10S5; Chapman v. Soberlein, 152 Cal. 216, 92 Pac. 188, 190. 15. A publication for fourteen con- secutive days constitutes a publication of "at least two weeks," where the requisite period of two weeks had fully elapsed prior to the date noticed in the publication for the meeting: Derby v. Modesto, 104 Cal. 515, 38 Pac. 900. See State v. Yellow Jacket etc. M. Co., 5 Nev. 415. 16. Purpose of affidavit for service by publication. — An affidavit for service by publication is not designed to convey any information to the defendant to be served. Its purpose is to bring upon the record the statutory foundation for the publication of a notice. When the affidavit discloses that the action is one to foreclose a real estate mortgage and to sell land under such mortgage, a suf- ficient basis for publication is estab- lished: Sharp v. McColm, 79 Kan. 772, 101 Pac. 659, 660, citing Gillespie v. Thomas, 23 Kan. 138, and Kan. Code Civ. Proc, §§ 72, 74, (Gen. Stats. 1901, §§ 4506, 4508). 17. Defective service waived by an- swering over. — If the defendant desires to stand upon insufficient service of a ■writ or summons, its remedy is to move specially to quash the same, and. if the motion be overruled, then to withdraw from further appearance; the defective 1812 CHANGE OF VENUE. [Tit. XVII. aervice is waived by a general answer to the jurisdiction over the defendant: Eddy v. Lafayette, 49 Fed. 809, 1 C. C. A. 441; Ogdensburgh R. Co. v. Vermont R. Co., 63 N. Y. 176; Handy v. Insurance Co., 37 Ohio St. 370, 371; Gilbert v. Hall, 115 Ind. 549, 18 N. E. 28; Kronski v. Railroad Co., 77 Mo. 362; Thomasson v. Mercantile etc. Ins. Co., 217 Mo. 485, 116 S. W. 1092, 1095. 18. Time to answer pending motion to quash service. — Time to answer is not extended by and during the pendency of a motion to quash service of sum- mons: Garvie v. Greene, 9 S. Dak. 608, 70 N. W. 847. 19. The word "process" signifies a writ or summons issued in the course of judicial proceedings. Under this signification a notice of appeal has been held to be not process: Gooler v. Eid- ness (N. Dak.), 121 N. W. 83, 85, citing and construing N. Dak Rev. Codes 1905, § 6738. 20. Process under Kansas statute.— Under the Kansas statute, it is pro- vided that the style of process shall be: "The state of Kansas"; that the same shall be under the seal of the court from whence it issues; that it shall be signed by the clerk and dated the day it is issued. It is held, however, that a notice employed by the attorney in ob- taining service by publication is not a process within the meaning of the con- stitution or statute, and need not bear the style of "state of Kansas," nor the seal of the court in which the action is pending, nor be signed or issued by the clerk of such court: McKenna v. Cooper, 79 Kan. 847, 101 Pac. 662, 663. CHAPTER CXXXIV. Change of Place of Trial or Venue, Generally. — Removal of Causes to Federal Courts. Page § 473. Procedure for change of venue in state courts 1813 Form No. 1095. Notice of motion for change of place of trial. . 1813 Form No. 1096. Motion for change of place of trial 1814 Form No. 1097. Demand for change of place of trial 1814 Form No. 1098. Affidavit of residence 1815 Form No. 1099. Affidavit of merits 1815 Form No. 1100. Affidavit of residence and of merits for change of place of trial 1815 Form No. 1101. Petition for change of venue 1816 8 474. Removal of cause from state to federal court 1817 Form No. 1102. Petition for removal of cause from state to federal court on the ground of diversity of citizenship 1817 Form No. 1103. Petition for removal where the action is brought by a citizen against an alien 1818 Form No. 1104. Petition for removal where a federal question is involved 1818 Form No. 1105. Order of removal made by state court 1818 Form No. 1106. Bond on removal of action from state to fed- eral court 1819 § 475. Annotations 1819 Oh. CXXXIV.] IN STATE COURTS.— FORMS. 1813 §473. PROCEDURE FOR CHANGE OF VENUE IN STATE COURTS. FORM No. 1095 — Notice of motion for change of place of trial. (In Younger v. Spreckels, 12 Cal. App. 175; 106 Pac. 895.) [Title of court and cause.] To Jeannie H. Younger, as executrix of the last will and testament of Charles B. Younger, deceased, plaintiff in the above-entitled action, and to Charles B. Younger, Esq., attorney for plaintiff: You will please take notice, that the defendant, Claus Spreckels, will move the above-entitled court at the courtroom thereof in the county courthouse of the county of Santa Cruz, state of California, on the 15th day of June, 1908, at the hour of ten o'clock A. M. of said day, or as soon thereafter as counsel can be heard, for an order changing the place of trial of the above-entitled action to the city and county of San Francisco, state of California, to be tried in the superior court of the state of California in and for said city and county. Said motion will be made upon affidavits, which are herewith served upon you, and upon the demand for change of place of trial served herewith, and upon the papers and files in the cause, and this notice, upon the following grounds : That the defendant is a non-resident of the county of Santa Cruz, state of California, and that the defendant has demanded that the place of trial of said action be changed to the city and county of San Francisco, state of California, the place of residence of said defendant. Dated June 4, 1906. Charles S. Wheeler, Attorney for defendant. I Acknowledgment of service of the foregoing notice, and filing endorsement.] Receipt of a copy of the within notice this 5th day of June, 1908, is hereby admitted. Charles B. Younger, Attorney for plaintiff. [Endorsed:] Filed June 5, 1908. H. H. Miller, Clerk. By Harry E. Miller, Deputy Clerk. Jury's PL— 115. 1814 CHANGE OF VENUE. [Tit. XVIL FORM No. 1096 — Motion for change of place of trial. (In Younger v. Spreckels, 12 Cal. App. 175; 106 Pac. 895.) Now comes the defendant in the above-entitled action, and moves the court that an order be made changing the place of trial of the above-entitled action from the county of Santa Cruz, state of Cali- fornia, to the city and county of San Francisco, state of California, for the following reasons, and upon the following grounds, to wit : That defendant, Claus Spreckels, does not reside in the county of Santa Cruz, state of California, and at the time of the commence- ment of this action was, and ever since has been, and now is, a resi- dent of the city and county of San Francisco, state of California ; That said defendant has filed herein with this motion an affidavit of merits, and has demanded that this action be transferred for trial to the city -and county of San Francisco, state of California, and also has filed herein an affidavit showing the residence of said defendant as above set forth, and has served upon the opposing counsel notice of this motion, which said notice sets forth that this motion will be called for hearing on the 15th day of June, 1908, at the hour of ten o'clock A. M. of said day. Dated June 4, 1908. Charles S. Wheeler, Attorney for defendant. [Acknowledgment of service by attorney for plaintiff and endorse- ment of filing.] FORM No. 1097 — Demand for change of place of trial. (In Younger v. Spreckels, 12 Cal. App. 175; 106 Pac. 895.) [Title of court and cause.] To the superior court of the state of California, in and for the county of Santa Cruz, and to Charles B. Younger, attorney for plaintiff : I hereby demand that the place of trial of this case be changed to the proper county, viz. the city and county of San Francisco, state of California. Dated June 1, 1908. Claus Spreckels, Residing at the city and county of San Francisco, state of California. Charles S. Wheeler, Attorney for defendant. [Acknowledgment of service by attorney for the plaintiff and endorsement of filing.] Ch. CXXXIV.] IN STATE COURTS— FORMS. 1815 FORM No. 1098 — Affidavit of residence. (In Younger v. Spreckels, 12 Cal. App. 175; 106 Pac. 895.) [Title of court and cause.] [Venue.] Claus Spreckels, being first duly sworn, deposes and says : I am the defendant named in the above-entitled action; that at the time of the commencement of the above-entitled action I resided in the city and county of San Francisco, state of California, and ever since said time have resided, and do now reside, in the said city and county of San Francisco, state of California. I am not a resident of, and never have resided in, the county of Santa Cruz, state of California. Claus Spreckels. [Jurat of notary.] [Acknowledgment of service by attorney for the plaintiff and endorsement of filing.] FORM No. 1099 — Affidavit of merits. (In Younger v. Spreckels, 12 Cal. App. 175; 106 Pac. 895.) [Title of court and cause.] [Venue.] Claus Spreckels, being first duly sworn, deposes and says : That he is the defendant named in the above-entitled action ; that he has fully and fairly stated all the facts of the above-entitled action to his counsel, Charles S. Wheeler, who is an attorney at law admitted to practise, and in good standing, before all the courts of this state; that he is advised by his said counsel, and verily believes, that he has a good and sufficient defense to said action on the merits. Claus Spreckels. [Jurat of notary.] [Acknowledgment of service by attorney for the plaintiff and endorsement of filing.] FORM No. 1100 — Affidavit of residence and of merits for change of place of trial. [Title of court and cause.] [Venue.] , being duly sworn, says: That he is the defendant in this action; that he was at the commencement of this action [and now is] a resident of the county of , in the state of , 1816 CHANGE OP VENUE. [Tit. XVII, ar>d not a resident of the county in which this action was com- menced; that he has fully and fairly stated the case to , his counsel, who resides at , in the state of , and that he was thereupon and is advised by his said counsel, and verily believes, that he has a good and substantial defense on the merits to the action, and that for the reason said County is the proper county for the trial of said action, he makes his demand herein for a change of the place of the trial of said action to said County. [Signature.] [Jurat.] FORM No. 1101 — Petition for change of venue.* (In St. Louis etc. R. Co. v. McNamare, 91 Ark. 515; 122 S. W. 102.) [Title of court and cause.] [Omitting formal parts, the defendant, petitioner, states:] That it verily believes that it can not obtain a fair and impartial trial in this, Marion County, on account of the undue prejudice against the petitioner in said county. It further says the plaintiff is not a resident of Marion County, Arkansas, but is a resident of the state of Missouri ; that said cause of action, if any she has, and the occurrence of which she complains, did not take place in Marion County, Arkansas, but occurred in the state of Missouri, and plaintiff was not compelled to institute her suit in Marion County in order to get service on the defendant [etc.]. [Ending with prayer to grant an order changing the venue of the case to some other county in the state of Arkansas, and for all other proper relief.] E. B. Kinsworthy, S. B. Campbell, T. T. Dickinson, [Verification.] Attorneys for defendant. i A petition for change of venue under the Arkansas statute is required to be signed by the party and verified as pleadings are required to be verified, and srall be supported by affidavits of at least two credible persons to the effect that affiants believe that the statements of the petitioner are true: Kirby's Dig. Ark., § 79J6, construed in St. Louis etc. B. Co. v. McNamare, 91 Ark. 515, 122 S. W. 102, 104. Ch. CXXXIV.] STATE TO FEDERAL COURTS— FORMS. 1817 §474. REMOVAL OF CAUSE FROM STATE TO FEDERAL COURT. FORM No. 1102 — Petition for removal of cause from state to federal court on the ground of diversity of citizenship, i [Title of action in state court.] To the court of the state of , in and for the county of : The petition of , the defendant in the above-entitled action, respectfully shows to the court : 1. That your petitioner is a defendant in the above-entitled action, and is actually interested in the controversy herein. 2. That said action has been commenced against him in said court by plaintiff and that said action is of a civil nature. 3. That the matter in dispute in this action exceeds, exclusive of interest and costs, the sum [or value] of $2,000. 4. That the controversy in this action, and every issue of fact or law therein, is wholly between citizens of different states, and can be fully determined as between them; that the plaintiff, , is now, and was at the time of the filing of the complaint in this action a citizen of and a resident of the state of , and the defend- ant, , is now, and was at the time of the commencement of this action, a citizen of and resident of the state of 5. That the time of your petitioner as defendant in this action to answer or plead to the complaint in said action has not yet expired, and will not expire until the day of , 19 , and your petitioner has not yet filed any answer thereto or in any way ap- peared in said action. 6. Your petitioner herewith presents a good and sufficient bond as provided by the statute in such cases that he will on or before the first day of the next ensuing session of the United States circuit court for the district of , enter and file therein a copy and transcript of the record of this action and for the payment of all costs which may be awarded by the said court, if the said circuit court shall hold that this suit was wrongfully or improperly removed thereto. Wherefore, your petitioner prays: That this court proceed no further herein, except to make an order for removal as required by law, and to accept the bonds presented herewith, and tc direct a i Under 25 U. S. Rev. Stats. 434, 435. 1818 CHANGE OF VENUE. [Tit. XVII. transcript of the record herein to be made for said court as provided by law and as in duty bound ; and your petitioner will ever pray. [Signature of petitioner.] [Verification as for a pleading.] FORM No. 1103 — Petition for removal where the action is brought by a citi- zen against an alien. [In place of paragraph 4 in form No. 1102, insert the following:] That at the time said suit was begun, and at the present time, the plaintiff is a citizen and resident of the state of , and the defendant was and is an alien, and subject of [naming the foreign kingdom or state], and said defendant is now a resident in the county of , and state of [Etc.] FORM No. 1104 — Petition for removal where a federal question is involved. [Insert in place of paragraph 4 in form No. 1102, the following:] That the controversy herein arises under the constitution and laws of the United States [or treaties made under their authority] in the manner as appears by the complaint of the plaintiff herein, a copy of which is hereunto annexed and made a part of this application, that is to say : [Here state briefly the federal question involved, and of which the United States circuit court is given original jurisdic- tion.] [Etc.] FORM No. 1105 — Order of removal made by state court. [Title of court and cause.] This cause coming on to be heard upon the application of the defendant herein for an order transferring the same to the United States circuit court for the district of , and it appear- ing to the court that the defendant has filed his petition for such removal in due form of law, that the defendant has filed his bond as provided by law, and it appearing to the court that this is a proper case for removal to said circuit court, on the ground that the parties hereto are citizens of different states [or on the ground that a federal question is involved herein, or state such other ground as exists] : It is hereby ordered, that this cause be and the same is hereby removed to the United States circuit court in and for the Ch. CXXXIV.] STATE TO FEDERAL COURTS— FORMS. 1819 district of , and the clerk is hereby directed to make up the record in this cause for transmission thereto forthwith. Entered, [etc.]. FORM No. 1106 — Bond on removal of action from state to federal court. [Title of action in state court.] Know all men by these presents: That we, , principal, and , of , and , of , state of , sureties, are held and firmly bound unto in the sum of $ , lawful money of the United States, to be paid to the said , his heirs, executors, administrators, successors, and assigns; for which payment well and truly to be made we bind ourselves, our heirs, executors, and assigns, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of , 19 . Upon condition, nevertheless, that whereas the said has filed a petition in the court, in County, state of , for the removal of a certain cause therein pending between the said , as plaintiff, and the said , as defendant, to the circuit court of the United States in and for the district of ': Now, if the said shall enter in the said circuit court of the United States on the first day of its next session a copy of the record in said suit, and shall well and truly pay all costs that may be awarded by said circuit court of the United States, if said court shall hold that said suit was wrongfully or improperly removed thereto, then this obligation to be void; otherwise, to remain in full force and virtue. rcs . „ . . , -, rc , . , [Signature of principal.] [Seal.] [Signature of surety.] [Seal.] [Signature of surety.] [Seal.] [Justification of sureties.] [Endorsement of approval and of filing in the state court.] §475. ANNOTATIONS.— Change of place of trial. 1. Jurisdiction conferred by application for change. 2. Guarantor. — Venue of action against. 8, 4. Arkansas statute construed. 5. Divorce. — Change of venue to where real action is joined. 6. Facts of defense not required to be set forth. 7. Demand and affidavit are essential. 8, 9. Affidavit of merits by counsel. 10. "Residence" of a domestic trading corporation. 1820 CHANGE OF VENUE. [Tit XVII. 11. Foreign corporation. — Venue of action against. 12. Affidavit of officer as to residence. 13. Application for removal of cause to federal court. 14, 15. Citizenship, diversity of. 16. Averment as to controversy between citizens of different states. 17. Citizenship distinguished from residence. 18. Mandamus to secure change of venue. 19. Right not affected by special appearance. 1. Jurisdiction conferred by applica- tion for change. — Taking a change of venue by a defendant before the court in which the case is pending operates as an appearance to the merits and con- fers jurisdiction over the person: Feed- ler v. Schroeder, 59 Mo. 364; Speer v. Burlingame, 61 Mo. App. 75. 2. Guarantor. — Venue of action against. — A motion for change of Venue was held to have been properly denied in an action in which the plaintiff joined as parties defendant an original obligor and his guarantor and laid the venue in the county in which the guarantor re- sided, where the motion was made by the obligor upon an affidavit stating that the claim of guaranty was false, and that the guarantor was made his co-defendant in order that the plaintiff might bring the action in the county in which the guarantor resided; and where a counter-affidavit was filed by the plaintiff to the effect that the guarantor was made defendant not for the purpose of controlling the venue in said action, but because, according to plaintiff's theory, plaintiff was entitled to judg- ment against either or both of said de- fendants, and further alleging that the guarantor was a bona fide resident of the county in which the summons was served: Senn v. Connelly (S. Dak.), 120 N. W. 1097, 1098. 3. The Arkansas statute (Kirby's Dig., §§ 7996, 7998) construed. — The stat- ute plainly means that if the plaintiff commences an action in a county other than that of his residence, or other than that of the county in which the occur- rence of which he complains took place, unless he is compelled to do so in order to get service on the defendant, the lat- ter shall have the right to a change of venue upon presentation of his petition in proper form, duly verified, containing allegations of the statutory grounds of prejudice or undue influence and sup- ported by the affidavits of two credible witnesses: St. Louis etc. R. Co. v. Fur- low, 81 Ark. 496, 499, 99 S. W. 689. The language in section 7998 of the statute "upon presenting the petition," etc., plainly contemplates the petition duly verified and the supporting affidavits. If the legislature had intended that the supporting affidavits should accompany the petition as a prerequisite to the granting of a change of venue, it would have used the language "upon presen- tation of his petition duly verified, to- gether with the supporting affidavits," but the assertion of the one excludes the use of the other. The proviso con- tained in the latter part of section 7998 is a limitation upon the preceding part of the section. While the conditions contained in the proviso exist, they de- feat the operation of the first part of the section; in other words, the proviso conditionally limits the operation of the statute relative to change of venue. It provides that, when the conditions ex- ist, the change of venue shall be grant- ed as a matter of right upon presenta- tion of the petition duly verified: St. Louis etc. R. Co. v. McNamare, 91 Ark. 515, 122 S. W. 102, 104. 4. Where an action is not commenced in the county of the plaintiff's residence, nor in the county where the occurrence complained of took place, and it is not necessary to bring the suit in the county in which the action was commenced in order to get service, the defendant, upon presentation of his petition duly veri- fied, is entitled as a matter of right to a change of venue: St. Louis etc. R. Co. v. McNamare, 91 Ark. 515, 122 S. W. 102, 103, quoting and construing Kirby's Dig., §§ 7996, 799S, prescribing procedure to obtain an order for change of venue. 5. Divorce. — Change to where real ac- tion is joined. — Where in an action for divorce a real action is joined in the com- plaint, the defendant will be entitled to have the place of trial removed to the county of his residence. Such a case falls within the provisions of section 395 of the Code of Civil Procedure, and the action must be brought in a county wherein the defendant resides; and if' Ch. CXXXIV.] ANNOTATIONS. 1821 not, a suit so brought must be removed thereto: Le Breton v. Superior Court, 66 Cal. 30, 4 Pac. 777; Ah Fong v. Sternes, 79 Cal. 33, 21 Pac. 381; Smith v. Smith, 88 Cal. 572, 26 Pac. 356; Warner r. Warner, 100 Cal. 11, 16, 34 Pac. 523. 6. Facts of defense not required to be set forth. — An affidavit of merits need not state the facts constituting a meri- torious defense, but such affidavit should state in substance that affiant has fully and fairly stated the facts of the case to his counsel, and that such counsel had advised him that he has a good legal and meritorious defense. But where the court below seems to have been satisfied with an affidavit merely stating, in this respect, "that the de- fendant has a good legal and meritorious defense," there is no such abuse of dis- cretion as would justify the appellate court in reversing an order made there- on, especially where such reversal would operate as a final bar to any defense on the part of the defendant: Howe v. Coldren, 4 Nev. 171, 177. 7. Demand and affidavit are essential. — Where a party fails at the time of in- terposing his demurrer to file an af- n iavit of merits and a demand in writ- ing for a change of the place of trial of the action, he thereby waives his right to such change, even if the facts in reality entitle him to a change: Bell v. Camm, 10 Cal. App. 388, 102 Pac. 225, 226, citing Cook v. Pendergast, 61 Cal. 78. 8. Affidavit of merits by counsel. — The propriety of counsel for a party making an affidavit as to the merits or legality of the defense is often called in ques- tion. Where counsel makes such an af- fidavit, the better practice would re- quire that he, as affiant, in setting out that the defendant has a good legal and meritorious defense, allege or show in some way that he, as counsel, knows or is familiar with the facts in the case: Howe v. Coldren, 4 Nev. 171, 177. 9. An affidavit of merits in which the affiant, among other things, sets forth, "And after such statement I am advised, and verily believe, that I have a good defense on the merits to this action," etc.; held defective, upon the ground that the affiant should have stated that he was advised by his counsel that he had a good defense: Grangers' Union v. Ash, 12 Cal. App. 143, 106 Pac. 8S9, 890. \ Author's note: Of this decision it might well be said, "More subtile web Arachne can not spin." Where the affiant states, as in this case, that he had "fully and fairly stated the case to his counsel," naming him, and "after such statement I am advised," etc., it would hardly seem to require the services of a sleuth to discover who gave the advice.] 10. "Residence" of domestic trading corporation. — A domestic trading cor- poration resides, within the meaning of section 3951 of the California Code of Civil Procedure, in the county where its principal place of business is, and such place is where designated by its articles of incorporation: Jenkins v. California Stage Co., 22 Cal. 537; Cohn v. Central Pacific R. Co., 71 Cal. 488, 12 Pac. 498; McSherry v. Penn Co., 97 Cal. 637, 32 Pac. 711; Buck v. Eureka, 97 Cal. 135, 140, 31 Pac. 845, 846; Trezvant v. Strong, 102 Cal. 47, 36 Pac. 395. 11. Foreign corporation. — Venue of ac- tions against. — The rule is different with respect to the right of foreign corpora- tions to change the place of trial. In the absence of any statutory provision fixing the place of trial, in actions against foreign corporations, such ac- tion may be brought and maintained in any county of the state. A foreign cor- poration exists in and by virtue of the law of the foreign country, and no stat- ute of another state can give a local residence to such corporation where alone it can be sued. Its liability to be sued in the courts of such latter state no more confers a comity residence upon it than does the comity which permits it to apply to its courts for the enforce- ment of a contract for the redress of a wrong: Thomas v. Placerville G. Q. M. Co., 65 Cal. 600, 4 Pac. 641, 643; Anglo- Californian Bank v. Field, 146 Cal. 644, 650, 80 Pac. 1080; Waechter v. Atchison etc. R. Co., 10 Cal. App. 70, 101 Pac. 41. 42; Boyer v. Northern Pacific R. Co., 8 Idaho 74, 66 Pac. 826, 70 L. R. A. 691; Olson v. Osborne, 30 Minn. 444, 15 N. W. 876. As to right of foreign corporations, in respect to change of place of trial on the ground of residence, see Waechter v. Atchison etc. R. Co., 10 Cal. App. 70, 101 Pac. 41, 42. 12. Affidavit of officer as to residence. — An affidavit of an officer of a foreign corporation, without sanction of the statute for such a proceeding, can not be held to admit such a corporation to 1822 CHANGE OF VENUE. [Tit. XVII. the constitutional rights and privileges of a domestic corporation with respect to its principal place of business for the purpose of establishing its residence in another state: Waechter v. Atchison etc. R. Co., 10 Cal. App. 70, 101 Pac. 41, 43. 13. Application for removal of cause to federal court. — It has been held, where a petition for removal of a cause from a state to the federal court is made and based upon the theory that the cause of action or controversy in- volved is separable with reference to the parties joined as defendants, and that, although one of the defendants was a citizen of Colorado, the remain- ing defendant was a Wyoming corpora- tion, such application is properly de- nied where the matters alleged in the complaint constitute concurrent acts of negligence against the defendants, and where on the face of the complaint it can not be said that the controversy is separable: Stratton Cripple Creek etc. Co. v v Ellison, 42 Colo. 498, 94 Pac. 303, 305, (negligence resulting in personal in- juries suffered in a mine). 14. Citizenship, diversity of. — To ren- der an action removable to the federal court on the ground of alleged diversity of citizenship, is not enough to aver generally that plaintiff [or defendant] is not a citizen of a particular state, or not of the state in which the suit is pending: Cameron v. Hodges, 127 U. S. 322, 8 Sup. Ct. 1154, 32 L. ed. 132. 15. Distinct statements of the citizen- ship of the parties, and of the particu- lar state in which it is claimed such citi- zenship exists are required: CameroB v. Hodges, 127 U. S. 322, 8 Sup. Ct. 1154, 32 L. ed. 132; O'Connor v. Chicago etc. Co. (Iowa), 122 N. W. 947, 949. 16. Averment as to controversy be- tween citizens of different states. — To aver that the controversy is between citizens of different stales is but a con- clusion, where it precedes specific alle- gations of facts by way of explanation, or follows them as an inference to be drawn therefrom: O'Connor v. Chicago etc. Co. (lowa), 122 N. W. 947, 949, cit- ing Neel v. Penn Co., 157 U. S. 153, 15 Sup. Ct. 589, 39 L. ed. 654; Continental Life Ins. Co. v. Rhoads, 119 U. S. 237, 7 Sup. Ct. 193, 30 L. ed. 380; Grace v. American Central I. Co., 109 U. S. 278, 3 Sup. Ct. 207, 27 L. ed. 932. 17. Citizenship distinguished from res- idence. — Citizenship can not be inferred from an averment as to residence, for the reason that a person may be a citi- zen of a state although a resident of an- other: Continental Life I. Co. v. Rhoads, 119 U. S. 237, 7 Sup. Ct. 193, 3C L. ed. 380; O'Connor v. Chicago etc. Co. (Iowa), 122 N. W. 947. 950. 18. Mandamus to secure change of venue. — Mandamus lies to compel a judge to grant a change of venue where the moving party has a clear legal right thereto: State v. Dick, 103 Wis. 407, 79 N. W. 421, construing § 3069 Rev. Stats. 1898, under which an order deny- ing change of venue is unappealable. See Gamble v. First Judicial Dist. Court, 27 Nev. 233, 74 Pac. 530. Com- pare People v. Church, 103 111. App. 132; Galbraith v. Williams, 21 Ky. Law Rep. 79, 106 Ky. 431, 50 S. W. 686. So, also, mandamus will lie to compel the court to hear and determine a motion for change of venue to the county of de- fendant's residence: Hennessy v. Nicol, 105 Cal. 138, 142, 38 Pac. 649. 19. Right not affected by special ap- pearance. — A special apearance by mo- tion to strike out portions of the com- plaint made before or at the time of filing the demurrer is not such an ap- pearance and submission to the court's jurisdiction as constitutes a waiver of the right to move for a change of venue: Wood v. Herrman Min. Co., 139 Cal. 713, 717, 73 Pac. 538, Ch. CXXXV.J APPEARANCE AND DEFAULT.— FORMS. 1823 CHAPTER CXXXV. Appearance and Default, and Substitution of Attorneys. Page 5 476. Appearances 1823 Form No. 1107. Notice of special appearance 1823 Form No. 1108. Notice of general appearance 1823 Form No. 1109. Acknowledgment of service 1823 5 477. Defaults 1824 Form No. 1110. Application for entry of default 1824 Form No. 1111. Clerk's entry of default of defendant for fail- ure to appear 1824 Form No. 1112. Stipulation to set aside judgment by default and to reopen cause 1824 Form No. 1113. Order on stipulation, setting aside default judgment 1825 § 478. Substitution of attorneys 1825 Form No. 1114. Notice of substitution of attorneys 1825 Form No. 1115. Consent to substitution of attorneys 1825 Form No. 1116. Acknowledgment of notice and service of sub- stitution 1825 § 479. Annotations 1826 §476. APPEARANCES. FORM No. 1107 — Notice of special appearance. [Title of court and cause.] To A. B., attorney for plaintiff: Please take notice, that the undersigned appears in this action for the defendant, M. N., for the special purpose of [stating the special purpose] and for no other purpose. [Date.] C. D., Attorney for defendant, specially appearing. FORM No. 1108 — Notice of general appearance. [Title of court and cause.] To A. B., attorney for plaintiff [or other party, naming him] : Please take notice, that the undersigned appears for the defend- ant, M. N., in this action. [Date.] C. D., Attorney for defendant [or other jarty.] FORM No. 1109 — Acknowledgment of service. [Title of court and cause.] The undersigned, attorney for plaintiff, hereby acknowledges service of [here naming the instrument served]. [Date.] A. B., Attorney for plaintiff. 1824 APPEARANCE, DEFAULT, ETC. [Tit. XVII. §477. DEFAULTS. FORM No. 1110 — Application for entry of default. (From the record in Nixon v. Goodwin, 3 Cal. App. 358 ; 85 Pac. 169.) [Title of court and cause.] In this action the defendant [M. C. Co.], having been regularly served with process, and having failed to appear and demur or answer to the plaintiff's complaint herein, and the legal time for demurring or answering having expired, application is hereby made by the plaintiff to the clerk of said court for the entry of a default against said defendant. Dated June 4, 1901. Tabor & Tabor, [Endorsement of filing.] Attorneys for plaintiff. FORM No. 1111 — Clerk's entry of default of defendant for failure to appear. (In Angus v. Craven, 132 Cal. 691; 64 Pac. 1091.) [Title of court and cause.] In this action the defendant, Elizabeth Haskins, having been legally served with process, and having failed to appear and answer [or demur] to the complaint [in intervention] on file herein, and the time allowed by law for answering [or demurring] having expired, the default of said defendant in the premises is hereby duly entered according to law. Attest my hand and seal of said court, this 11th day of September, 1897. C. F. Curry, Clerk. By E. P. Peterson, Deputy Clerk. FORM No. 1112 — Stipulation to set aside judgment by default and to reopen cause. [Title of court and cause.] It is hereby stipulated and agreed by and between the parties hereto, that the judgment entered herein on the day of , 19 , be set aside, and that the defendant be given leave to file his demurrer herein and pursue such other defenses as he may be ad- vised. It is further stipulated, that such order or orders may be made herein as may be necessary for the purposes of this stipulation. [Date.] A. B., Attorney for plaintiff. C. D., Attorney for defendant. Ch. CXXXV.] SUBSTITUTION OF ATTORNEYS.— FORMS. 1825 FORM No. 1113 — Order on stipulation, setting aside default judgment. [Title of court and cause.] Good cause appearing therefor, and pursuant to a stipulation between the parties hereto, made and entered into on , 19 , and filed herein : It is hereby ordered, that the judgment entered herein on the day of , 19 , be and the same is hereby vacated and set aside, and defendant is hereby given leave to file his demurrer here- in, and to pursue such other defenses herein as he may be advised. [Date.] S. T., Judge. §478. SUBSTITUTION OF ATTORNEYS. FORM No. 1114 — Notice of substitution of attorneys. ( In McFarland v. Matthai, 7 Cal. App. 599; 95 Pac. 179.) [Title of court and cause.] To , defendants herein, and to , their attorneys: Please take notice, that after this day I have substituted Bell, York & Bell, as my attorneys, in the place and stead of Percy S. King, and that the said Percy S. King has in writing consented to the said substitution. Dated April 12, 1905. Abel McFarland, Plaintiff. Bell, York & Bell, Attorneys for plaintiff. FORM No. 1115 — Consent to substitution of attorneys. (In McFarland v. Matthai, 7 Cal. App. 599; 95 Pac. 179.) [Title of court and cause.] Consent and notice is hereby given of the substitution of Bell, York & Bell, as attorneys for the plaintiff, for and in the place and stead of the undersigned. Dated Jan. 20, 1904. Percy S. King, Attorney for the plaintiff. FORM No. 1116 — Acknowledgment of notice and service of substitution. [Title of court and cause.] Due notice and service of a copy of the above notice of substitu- tion of attorneys for the plaintiff [or defendant] in the above- entitled action is hereby admitted this day of , 19 . A. B., Attorney for defendant [or plaintiff]. 1826 APPEARANCE, DEFAULT, ETC. [Tit. XVII. §479. ANNOTATIONS. — Appearance and default, and substitution of attor- neys. 1. Appearance. — Effect of request for time to answer. 2, 3. Asking permission to plead to merits. 4, 5. Appearance to merits. 6. Setting cause for trial. 7, 8. Effect of general appearance. 9. Statutory provisions as to general appearance. 10. Entry of general appearance on appeal. 11. Default.— Effect of entry. 12. Issues of law preclude default. 13. Substitution. — California procedure. 14. Notice of substitution by citation. — Washington practice. 15. Wisconsin rule. 16. Substitution pending appeal. 17. Authority to attorney coupled with interest. 18. Service of notice of appeal where no substitution is made. 1. APPEARANCE.— Effect of request for time to answer.— A request for time in which to answer the merits consti- tutes a general appearance, the effect and scope of which may not be limited by any statement on the part of coun- sel that he desires the record to show that his appearance is special: State ex rel. Mackey v. District Court, 40 Mont. 359, 106 Pac. 1098, 1100. 2. Asking permission to plead to mer- its. — Where a party appears, either be- fore or after judgment, and asks per- mission to plead to the merits of the cause, he thereby waives all irregulari- ties in the service of process: Mayer v. Mayer, 27 Ore. 133, 39 Pac. 1002, cited and approved in State ex rel. Mackey v. District Court, 40 Mont. 359, 106 Pac. 1098, 1101. It is a settled rule that if a party desires to take advantage of want of service of process sufficient to give the court jurisdiction of his per- son, he must specially appear for that purpose only: Gilbert- Arnold D. Co. v. O'Hare, 93 Wis. 194, 67 N. W. 38. 3. A defendant waives his right to ob- ject to a judgment for want of proper service of summons by appearing and asking leave to answer to the merits: Mayer v. Mayer, 27 Ore. 133, 39 Pac. 1002; Anderson v. McClellan (Ore.), 102 Pac. 1015, 1016, (ejectment). 4. Appearance to the merits. — An ap- pearance by the defendant to the mer- its of the action, in a case where the court is possessed of jurisdiction over the subject-matter, confers complete jurisdiction over the person: Columbia Brewery Co. v. Forgey, 140 Mo. App. 605, 120 S. W. 625, 628; Wicecarver v. Mercantile etc. Ins. Co., 137 Mo. App. 247, 117 S. W. 698; Thomasson v. Mer- cantile etc. Ins. Co., 114 Mo. App. 109, 89 S. W. 564, 1135, 116 S. W. 1092; Mc- Clure v. Paducah Iron Co., 90 Mo. App. 567. 5. An answer to the merits, as a gen- eral rule, operates as a voluntary ap- pearance: Wicecarver v. Mercantile etc. I. Co., 137 Mo. App. 247, 117 S. W. 698, 701. Appearance by demurrer is a general appearance, even though it is stated therein that the appearance is made simply and only for the purposes of the demurrer: McDonald v. Agnew, 122 Cal. 448, 450, 55 Pac. 125; and it is held, that where an appearance is made to challenge a judgment or order not merely on jurisdictional grounds, but also on non-jurisdictional grounds, the appearance is general, no matter what the parties may call it in their motion: Burdette v. Corgan, 26 Kan. 102. 6. Setting cause for trial. — An appear- ance for the purpose of setting a cause for trial operates to waive the matter of jurisdiction over the person of the de- fendant and confers jurisdiction upon the court to proceed: Orear v. Clough, 52 Mo. 55. 7. Effect of general appearance. — A general appearance is equivalent to per- sonal service of summons: State ex r.-l. Mackey v. District Court, 40 Mont. 359, 106 Pac. 1098, 1100, citing Anderson v. Burchett, 48 Kan. 781, 30 Pac. 174. 8. The service of the summons and of a copy of the complaint, or the volun- tary appearance of the defendant, in- vests the court with jurisdiction of the parties and control of all the subsequent Ch. CXXXV.] ANNOTATIONS. 1827 proceedings: Bell v. Camm, 10 Cal. App. 388, 102 Pac. 225, 226. construing Cal. Code Civ. Proc, § 416. 9. Statutory provisions as to general appearance. — Where the statute de- fines what shall constitute an appear- ance, — as, for instance, under section 1014 of the California Code of Civil Procedure, "A defendant appears in an action when he answers, demurs or gives written notice of his appearance, or when an attorney gives notice for him, and he can appear in no other way"; held, that the manner and effect of appearances are determined by the statute alone: Vrooman v. Li Po Tai, 113 Cal. 302, 45 Pac. 470; Powers v. Braly, 75 Cal. 237, 17 Pac. 197; Benedict v. Arnoux, 38 N. Y. Supp. 882; Bell v. Good, 22 Civ. Proc. Rep. 317, 356, 19 N. Y. Supp. 693, citing N. Y. Code Civ. Proc, § 421, Cal. Code Civ. Proc, § 1014. The principle involved in the California and New York cases is called in ques- tion in some jurisdictions, inasmuch as it is evidently not the intention of the legislature to make the means define! in the statute the only means by which a. defendant may appear. The purpose of the statute is simply to assure the defendant of notice of all subsequent proceedings in the cause after he had filed and served an answer, demurrer, or notice of appearance: State ex rel. Cur- tis v. McCullough, 3 Nev. 202; State ex rel. Mackey v. District Court, 40 Mont. 359, 106 Pac. 1098, 1101. 10. Entry of a general appearance on appeal, without reserving or alluding to a special appearance, waives the spe- cial appearance and gives the appellate court full and complete jurisdiction over the subject-matter of the action and the parties to the appeal: Columbia etc. R. Co. v. Moss, 53 Wash. 512, 102 Pac. 439. 11. DEFAULT. — Entry of default pre- supposes that the demurrer and motion had been acted upon and overruled and no answer made: Smith v. Clyne, 16 Idaho 466, 101 Pac. 819. 12. Issues of law preclude default. — Where issues of law are presented, either upon demurrer or motion, the court is required to decide the same, and the defendant is not in default un- til such issues of law are disposed of: Winchester v. Black, 134 Cal. 125, 66 Pac. 197; Oliphant v. Whitney, 34 Cal. 25. See, also, Smith v. Clyne, 16 Idaho 466, 101 Pac. 819, 820. 13. SUBSTITUTION.— California pro- cedure. — A substitution or change of at- torneys may be made under the Cali- fornia Code of Civil Procedure (§ 285), in one of two ways: (1) Upon consent of both attorney and client filed with the clerk or entered upon the minutes; or (2) upon the order of the court upon the application of either client or attor- ney, after notice from one to the other. Where the mode last designated is em- ployed, a petition is insufficient which does not allege that notice was given: Rundberg v. Belcher, 118 Cal. 589, 590, 50 Pac. 670, (denying application for writ of mandate to compel substitu- tion). 14. Notice of substitution by citation. — Washington practice. — Under a Wash- ington statute (§ 4769 Bal. Code), to the effect that a substitution may be or- dered at any time before judgment or final determination, provided the charges of the attorney have been paid, it is immaterial as to what method of giving notice of the motion is em- ployed so long as reasonable notice is given. While the usual method is by notice of motion, there can be no valid objection to notice by citation: Schul- theis v. Nash, 27 Wash. 250, 67 Pac 707. Under the California statute, the indebt- edness of a client to his attorney for services rendered in the action can not prevent substitution: Gage v. Atwater, 136 Cal. 170, 172, 68 Pac. 581. 15. Wisconsin rule. — Under the Wis- consin practice, substitution of an at- torney shall be granted only where con- sent in writing, signed by the party and his attorney, is given; or for cause shown on due notice to the court or judge, upon such terms as shall be just: Circuit Court Rule V, § 2, construed in McMahon v. Snyder, 117 Wis. 463, 466, 94 N. W. 351. 16. Substitution pending appeal. — Sub- stitution must be made in the trial court where, after default entered and appeal taken, motion is made to that end, and, when so made, the substituted attorney will be ordered substituted as the attorney of record on the appeal: Woodbury v. Nevada S. R. Co., 120 Cal. 367, 368, 52 Pac. 650. See Chamberlain v. Hedger, 10 S. Dak. 290, 73 N. W. 75. And substitution of an attorney after appeal should be followed by like sub- stitution in the trial court: Reay v. 1828 NOTICES, MOTIONS, AND ORDERS. [Tit. XVII. Heazelton, 128 Cal. 335, 338, 60 Pac. 977. 17. Authority to attorney coupled with interest. — Form of authority to attorney to prosecute to settlement and judgment an action for damages, with authority to compromise, etc.: Gulf Colorado etc. R. Co. v. Miller, 21 Tex. Civ. App. 609, 610, 53 S. W. 709, (authority held not revocable at the instance of the client alone, in the absence of fraud, because of interest coupled with the contract). 18. Service of notice of appeal where no substitution is made. — Service of notice of appeal on attorney who signed original answer of defendant, although another signed the amended answer, where there was never any substitution of attorneys, is good, although the de- fendant represented by such attorney was dead at the time of service: Lacoste v. Eastland, 117 Cal. 673, 680, 49 Pac. 1046. CHAPTER CXXXVI. Notices, Motions, and Orders. Page § 480. Notice of pendency of action 1829 Form No. 1117. Common form 1829 § 481. Notices, generally 1829 Form No. 1118. Notice of decision 1829 Form No. 1119. Notice of decision in favor of defendants and cross-complainant 1830 Form No. 1120. Notice of time of trial. (With waiver by plaintiff of trial by jury.) 1830 Form No. 1121. Notice to produce documents for use on the trial 1830 Form No. 1122. Notice of motion to dismiss action 1831 Form No. 1123. Notice of overruling demurrer and granting time to answer 1831 § 482. Orders 1832 Form No. 1124. Order extending time to plead 1832 Form No. 1125. Order assigning cause 1832 Form No. 1126. Order denying or overruling motion in general 1832 Form No. 1127. Order on motion to strike pleading from the files 1832 Form No. 1128. Order granting time to answer upon overruling demurrer 1833 Form No. 1129. Order granting time to amend after sustaining demurrer 1833 Form No. 1130. Order to show cause 1833 Form No. 1131. Order suspending power of executor 1834 Form No. 1132. Restraining order to executor, and order to show cause 1834 Form No. 1133. Order revoking letters testamentary 1835 5 483. Annotations 1835 Ch. CXXXVI.] NOTICES.— FORMS. ig29 §480. NOTICE OF PENDENCY OF ACTION. FORM No. 1117— Common form. } [Title of court and cause.] Notice is hereby given, that on the day of , 19 an action was commenced in the above-entitled court and cause for the [here state the nature of the action affecting the title or right of possession of the real property involved] ; that the names of the par- ties here o are as follows: [Here name all the parties, and whether plaintiff or defendant] ; that the object of said action [or defense] is as follows : [Here state the object of the action or defense, whether foreclosure, to quiet title, ejectment, for partition, to establish a trust in the lands, etc.] ; that the following is a description of the property affected by said action [or defense], to wit: [Here describe property, following the same description as contained in the com- plaint, or cross-complaint, etc.] [Date.] [Signature of plaintiff.] Or, A. B., Attorney for plaintiff. [Under the statutes, generally, the plaintiff, where the complaint (or petition) affects the title or the right of possession to real property, or the defendant, cross- complainant, or intervener, where an affirmative cause is set up in the answer, cross-complaint, or complaint in intervention, may, and should, record at the time of filing the particular pleading, or within a time subsequently as provided by statute, a notice of the pendency of the action. A reference should be made to the particular statute of the state relating to such notice as to the time and manner of recording the same.] §481. NOTICES, GENERALLY. FORM No. 1118 — Notice of decision. [Title of court and cause.] To defendant, , and to , his attorney: You will please take notice, that in the above-entitled action decision was rendered, and written findings of fact and conclusions of law signed and filed therein, on , 19 , in favor of plaintiff and against the defendant, in accordance with the prayer of plaint- iff's complaint; that judgment and decree were thereupon on said day signed and filed in favor of plaintiff and against defendant [quieting the title of plaintiff as against said defendants in and to the real estate in plaintiff's complaint described; or state substance of other relief granted] ; that said decree and judgment has been entered in the office of the county clerk of the county of state of [Date.] A. B., Attorney for plaintiff. Jury's PI.— 116. 1830 NOTICES, MOTIONS, AND ORDERS. [Tit. XVII. FORM No. 1119 — Notice of decision in favor of defendants and cross-com- plainant. (In Gish v. Ferrea, 10 Cal. App. 53; 101 Pac. 27.) [Title of court and cause.] To the above-named plaintiff, and to Hugo D. Newhouse. Esq., her attorney : You, and each of you, will please take notice, that the above- entitled court has rendered judgment in favor of defendants, and in favor of cross-complainant, J. P. LeFevre, and against plaintiff, in the above-entitled action [etc., as in preceding form]. Dated this 16th day of April, 1908. Berry & Brady, Attorneys for defendants and cross-complainant. [Endorsement of filing.] FORM No. 1120 — Notice of time of trial. (With waiver by plaintiff of trial by jury.) [Title of court and cause.] To the defendants in the above-entitled action, and their respect- ive attorneys : You are hereby notified, that the trial of the above-named cause has been set for the hour of 10 o'clock A. M. on , 19 , at the courtroom of said court, in the courthouse at , in the county of , and that said cause will be tried at said time and place, and you are further notified that the plaintiff hereby waives a trial by jury. [Date.] A. B., Attorney for plaintiff. FORM No. 1121 — Notice to produce documents for use on the trial. [Title of court and cause.] To defendant, , and to , his attorney : Notice is hereby given to you, and each of you, that plaintiff hereby demands of you, and of each of you, that you have and pro- duce at the trial of the above-named action set for ,19 , at the hour of 10 o'clock A. M. at the courthouse in the county of ,. state of , the following : [Here designate books, papers, etc., desired.] And you are hereby notified, that upon the failure upon the part of you, or either of you, to have said [here designating] at said trial, plaintiff will object to Ch. CXXXVI.] NOTICES.— FORMS. 1831 the admission of any evidence concerning any matter relating to matters set forth or referred to in said [here designate books, etc., as above]. [Date.] A. B., Attorney for plaintiff. FORM No. 1122 — Notice of motion to dismiss action. (In Siskiyou County Bank v. Hoyt, 132 Cal. 81; 64 Pac. 118.) [Title of court and cause.] To plaintiff, and to Messrs. Gillis & Tapscott, its attorneys : You will please take notice, that Elizabeth Hoyt, one of the defend- ants in the above-entitled action, will make special appearance in said cause, before said court, and for that purpose only, will, upon the 23d day of December, 1899, at the hour of ten o'clock A. M., or as soon thereafter as counsel can be heard, move this court to dismiss said action. Said motion will be made upon the records, files, and papers in said cause, and upon the ground that no summons was ever issued within a year after the filing of the complaint therein ; Also upon the ground that no service of the complaint or summons has ever been made upon her within the period of three years before the commencement of said action; and that she has never appeared or made answer to said complaint. [Date.] Warren & Taylor, Attorneys for defendants. FORM No. 1123 — Notice of overruling demurrer and granting time to answer. [Title of court and cause.] To the defendant in the above-entitled action, and to A. B., his attorney : Please take notice, that the demurrer interposed by you to the complaint of plaintiff herein was on the day of , 19 by the court overruled; and by said order you have been granted ten days from the date of this notice in which to answer the complaint herein. [Date.] A. B., Attorney for plaintiff. [Admission of service — annexed to foregoing notice, upon service thereof.] Due service of the foregoing notice of overruling demurrer is hereby admitted this day of , 19 . C. D., Attorney for defendant. 1832 NOTICES. MOTIONS. AND ORDERS. ITit. XVII. §482. ORDERS. FORM No. 1124 — Order extending time to plead. [Title of court and cause.] Good cause appearing therefor, it is hereby ordered, that the defendant, , have to and including the day of , 19 , in which to plead to the complaint [or other paper, naming it] herein. [Date.] S. T., Judge. FORM No. 1125 — Order assigning cause. (In Dodge v. Ridenour, 62 Cal. 263.) [Title of court and cause.] It is ordered, that the above-entitled cause, pending in the district court of the twelfth judicial district of the state of California, in and for the city and county of San Francisco, on the 31st day of Decem- ber, 1879, be and the same is hereby assigned to department No. 2 of this court. William P. Daingerfield, Superior Judge, presiding. FORM No. 1126 — Order denying or overruling motion in general. [Title of court and cause.] Hearing upon motion of plaintiff [or defendant] herein [here des- ignate the nature of the motion], coming on this day regularly to be heard, and the same being submitted, said motion is hereby granted [or denied]. [If the motion be granted, state effect specifically.] [Date.] S. T., Judge. FORM No. 1127 — Order on motion to strike pleading from the files. [Title of court and cause.] The motion of the plaintiff [or defendant] herein to strike out the answer [or other pleading to which motion is directed, naming it], coming on regularly to be heard, and the court being duly advised in the premises, the said motion is hereby denied [or granted, as the case may be]. [Date.] S. T., Judge. Ch. CXXXVI.] ORDERS.— FORMS. 1833 FORM No. 1128 — Order granting time to answer upon overruling demurrer. (In Braly v. Fresno City R. Co., 9 Cal. App. 417; 99 Pac. 400.) [Title of court and cause.] It is ordered, that the demurrer of defendant to the complaint of plaintiff be and the same is hereby overruled, and defendant is hereby granted ten days in which to answer after notice. [Date.] George E. Church, Judge of Superior Court. FORM No. 1129 — Order granting time to amend after sustaining demurrer. (In McFarland v. Matthai, 7 Cal. App. 599; 95 Pac. 179.) [Title of court and cause.] The demurrer in the above-entitled action coming on regularly to be heard, P. S. King appearing for the plaintiff, and Louise Matthai, one of the defendants, appearing for the defendants: The court, after hearing the argument, orders that the demurrer be and the same is hereby sustained, and the defendants are given ten days to amend their [cross-] complaint herein. In open court, Jan. 29, 1900. FORM No. 1130 — Order to show cause. [Title of court and cause.] On reading the petition of A. B., [creditor of the above-named decedent,] this day presented to me in the above-entitled proceeding, praying that an order may be made in said matter adjudging and decreeing that [here state] ; and it appearing to me from said petition [that it is necessary to sell some portion of the property belonging to said estate for the purpose of paying the debts outstanding against the decedent, etc.] ; it is ordered, that said petition be filed with the clerk of this court, and that all persons interested in the said estate appear before this court on the day of , 19 , at o'clock A. M. of said day, at the courtroom thereof, department No. , at , in the city of , then and there to show cause, if any they have, why an order shall not be granted [directing a sale of a portion of the property of the said estate, as prayed for in the said petition, etc.]. And it is further ordered, that a copy of this order be published once a week for four successive weeks in "The Daily ," a newspaper published in the said county of [Date.] S. T., Judge. 1834 NOTICES, MOTIONS, AND ORDERS. [Tit. XVII. FORM No. 1131 — Order suspending power of executor. [Title of court and cause.] T. M., widow of L. M., deceased, having heretofore presented her petition asking for the suspension of the powers of X. Y., executor of the last will of said deceased, and presenting her reasons therefor, and the court having examined said petition and certain proofs in support thereof, and it appearing to the court that there is reason to believe that the said X. Y., executor of the last will of the said deceased, [has wasted and mismanaged the property of the said estate committed to his charge, and has committed fraud upon the said estate, and has wrongfully neglected the said estate, in the par- ticulars stated in said petition, etc.] : It is by the court ordered, that the powers of the said X. Y., as executor of the last will of said L. M., deceased, be and the same are hereby suspended until the matters alleged in said petition are inves- tigated as herein provided. And it is further ordered, that the said X. Y. be cited to appear before this court, in department No. thereof, on , the day of , 19 , at o'clock M. of that day, then and there to show cause, if any he has, why the letters testamentary, heretofore issued to him as executor of the last will of said L. M., deceased, should not be revoked. [Date.] S. T., Judge. FORM No. 1132 — Restraining order to executor, and order to show cause. [Title of court and cause.] Upon reading and filing the petition of T. M., widow of said deceased, entitled "Petition of T. M. for a restraining order and for citation to the executor," and good cause appearing therefor: It is by the court ordered, that X. Y., executor of the will of said L. M., deceased, be and he is hereby enjoined and restrained until the further order of the court from [state the acts enjoined]. And it is further ordered, that said X. Y., as said executor, appear Knd show cause herein, if any he has, at the courtroom, department No. of this court, at o'clock M. on , the day of , 19 , why the prayer of said petition should not be granted. [Date.] S. T., Judge. Ch. CXXXVI.] ANNOTATIONS, ETC. 1835 FORM No. 1133 — Order revoking letters testamentary. [Title of court and cause.] The court having heard the testimony produced at the trial upon the issues made by the petition of T. M., widow of said deceased, for the revocation of the letters testamentary heretofore issued to X. Y., and the answer [or return] of the said X. Y. thereto, and the matter having been submitted to the court, after argument, for decision, and the court having made and filed its findings of fact and conclu- sions of law ; it is now by the court, in accordance with said findings of fact and conclusions of law : Ordered, adjudged, and decreed, that said letters testamentary heretofore issued to said X. Y., as executor of the last will of L. M., deceased, be and the same are hereby revoked. [Date.] S. T., Judge. §483. ANNOTATIONS. — Notices, motions, and orders. 1, 2. "Motion" denned. — Not a pleading. 3. Petition as motion. 4. Order to show cause as motion. 5. Motion distinguished from notice. 6. Leave to renew motion. 7, 8. Motion as remedy to set aside judgment procured by fraud. 9. Motion granted on one of many grounds. 10. "Order" denned. 11, 12. Interlocutory decree as an order. 13. Judgment, so-called, as an order. 14. Amending record by nunc pro tunc order. 1. "Motion" defined. — A motion is an 4. Order to show cause as motion. — application for an order or direction of An order to show cause returnable at the court not included in the judgment: a specified time less than that pre- Estate of Harrington, 147 Cal. 124, 128, scribed by statute is the equivalent of SI Pac. 546. And see Williams v. Haw- a motion and order shortening time for ley, 144 Cal. 97, 77 Pac. 762, citing the the hearing thereof: Dabman v. White, California code definition, that a motion 48 Cal. 439, 451. is an application for an order (§ 1003, 5. Motion distinguished from notice Cal. C. C. P.). A notice of motion is distinct from the 2. A motion is not a pleading within motion itself. Notice alone is not suf- the meaning of that term: Graff v. ficient on appeal to show the making Dougherty, 139 Mo. App. 56, 120 S. W. of a motion: Herrlich v. McDonald, SO «61, 663. Cal. 472, 474, 22 Pac. 299. 3. Petition as motion. — A petition to 6. Leave to renew a motion once de- a court of equity for an order directing nied lies in the discretion of the court: the payment of moneys in the hands of Mace v. O'Reilly, 70 Cal. 231, 11 Pac. a receiver is a motion. It is of no con- 721. sequence whether the verified statement 7. Motion as remedy to set aside a of the petitioner be termed a complaint, judgment procured by fraud. — A motion a petition in the nature of a complaint, predicated in part upon equitable or an affidavit: California Title Ins. etc. grounds which would no doubt support Co. v. Consolidated P. C. Co., 117 Cal. a bill in equity on the ground of fraud 237, 240, 49 Pac. 1. perpetrated in the act of procuring a 1836 AFFIDAVITS, DEPOSITIONS, ETC. [Tit. XVII. judgment Is proper to secure relief to set aside such judgment. The ancient right founded on the grounds coram nobis is superseded in our practice by the modern motion to the same effect: Graff v. Dougherty, 139 Mo. App. 56, 120 S. W. 661, 662, citing Downing v. Still, 43 Mo. 309; Cross v. Gould, 131 Mo. App. 585, 110 S. W. 672; Fisher v. Fisher, 114 Mo. App. 627, 90 S. W. 413. 8. Where a motion is made to set aside a judgment rendered against a de- fendant in his absence, and no defense other than that stated in the answer is presented, the question thereupon rests on the sufficiency of such answer, and where this Is insufficient, the judgment is proper, and the motion to set it aside will therefore be denied: Plunkett v. State National Bank, 90 Ark. 86, 117 S. W. 1079, 1080. 9. Motion granted on one of many grounds. — Where the granting of an or- der is proper upon any of the statutory grounds, the court may grant the mo- tion on one of the grounds stated, and may disregard other grounds: Toy v. Haskell, 128 Cal. 55S, 561, 61 Pac. 89, 79 Am. St. Rep. 70. 10. "Order" defined. — An order is a de- cision made during the progress of the cause, either prior or subsequent to final judgment, settling some point of prac- tice, or some question collateral to the main issue presented by the pleadings and necessary to be disposed of before such issue be passed upon by the court, or necessary to be determined in carry- ing into execution the final judgment: Loring v. Illsley, 1 Cal. 24, 27; Estate ©f Rose, 80 Cal. 166, 170, 22 Pac. 86; Estate of Smith, 98 Cal. 636, 640, 33 Pac. 744. 11. An Interlocutory decree is an or- der, and not a judgment, in so far that, except where expressly provided by stat- ute, an appeal will not lie; but it may be reviewed on an appeal from the judg- ment: Watson v. Sutro, 77 Cal. 609, 611, 20 Pac. 88. 12. An interlocutory decree in probate settling an administrator's accounts is not a final judgment, but a mere order: Estate of Rose, 80 Cal. 166, 169, 22 Pac. 86. 13. Judgment, so-called, as an order. — The judgment of a court refusing to admit a will to probate is not a final judgment, but an order of court: Estate of Smith, 98 Cal. 166, 638, 33 Pac. 744. 14. Amending record by nunc pro tunc order. — The authority of a court to amend its record by a nunc pro tunc order is to make it speak the truth, but not to make it speak what it did not speak, but ought to have spoken: Tucker V. Hawkins, 72 Ark. 21, 77 S. W. 902; Liddell v. Landan, 87 Ark. 438, 112 S. W. 1085; Boulden v. Jennings (Ark.), 122 S. W. 639, 641. CHAPTER CXXXVII. Affidavits, Depositions, and Stipulations. Page 484. Affidavits 1837 Form No. 1134. Affidavit of service of notice on a person not an attorney 1837 Form No. 1135. Affidavit of service of notice by mail 1837 Form No. 1136. Affidavit of service of notice on an attorney absent from his office 1838 Form No. 1137. Affidavit of service of notice on an attorney at his residence when his office is closed 1838 Form No. 1138. Affidavit of service of notice on an attorney at office in charge of a clerk or other person. . 1839 Form No. 1139. Affidavit of service of summons on several defendants. (Endorsed on original sum- mons.) 1839 Form No. 1140. Affidavit of service of citation 1840 Ch. CXXXVII.] AFFIDAVITS.— FORMS. 1837 § 485. Depositions * 1840 Form No. 1141. Stipulation of counsel to take depositions 1840 Form No. 1142. Affidavit upon taking deposition of defendant as witness for plaintiff 1841 Form No. 1143. Affidavit for taking the deposition of a resi- dent witness 1841 Form No. 1144. Affidavit and application for commission for the taking of the deposition of a non-resi- dent witness 1842 Form No. 1145. Notice of taking of deposition 1842 Form No. 1146. Commission to take deposition of witness.... 1843 Form No. 1147. Instructions to commissioner 1843 Form No. 1148. Deposition of witness. (To be annexed to the commission.) 1846 § 486. Stipulations 1847 Form No. 1149. Waiver of answer 1847 Form No. 1150. Stipulation to transfer cause to another de- partment 1847 Form No. 1151. Stipulation to dismiss appeal 1848 Form No. 1152. Stipulation as to facts 1848 Form No. 1153. Stipulation to restore and file original com- plaint destroyed by fire 1849 § 487. Annotations 1849 §484. AFFIDAVITS. FORM No. 1134 — Affidavit of service of notice on a person not an attorney. [Venue.] , being duly sworn, says : That he served the notice [or other paper, naming it], of which the annexed is a true copy, on [naming the person served] on the day of , 19 , by delivering said notice [or other paper, naming it] to said per- sonally, at his residence in the city [or town] of . [In case of a notice, service is generally required by statute to be made upon the attorney, hence the affiant should add, where service of notice is made, the reasons why service could not be made on the attorney.] [Signature.] [Jurat.] FORM No. 1135 — Affidavit of service of notice by mail. [Venue.] , being duly sworn, says: That he is the attorney for the plaintiff [or defendant] in the action entitled in the notice, of which the annexed is a true copy ; that he served said notice on , the 1838 AFFIDAVITS, DEPOSITIONS, ETC. [Tit. XVII. attorney for the defendant [or plaintiff] in said action, on the day of , 19 , by depositing said notice on said day of in the post-office at the city [or town] of , in the state of , enclosed in a sealed envelope, directed to said , attorney for defendant [or plaintiff], at his address, to wit, No. Street, city of , state of , which city [or town] of was then the place of residence of said ; that affiant pre- paid the postage thereon ; that there was then, and has been ever since, a regular communication by mail between said cities [or towns] ; that said attorney for defendant [or plaintiff] had no office in said city of at that time. ro . , [Signature.] [Jurat.] FORM No. 1136 — Affidavit of service of notice on an attorney absent from his office. [Venue.] , being duly sworn, deposes and says : That he is the attor- ney for the plaintiff [or defendant] in the action entitled in the notice, of which the annexed is a true copy; that he served said notice on , the attorney for defendant [or plaintiff] in said action, by leaving the same in the office of said , No. Street, in the city of , in this state, on the day of , 19 , at or about the hour of M. of said day [observing the statute as to service required to be made during business hours], and in a conspicuous place on the desk of said , in his said office ; that there was no one in charge of the said office at the time of such service. ro . , , [Signature.] [Jurat.] FORM No. 1137 — Affidavit of service of notice on an attorney at his residence when his office is closed. [Venue.] , being duly sworn, says: That he is the attorney for the plaintiff [or defendant] in the action entitled in the notice, of which the annexed is a copy; that affiant served said notice on , the attorney of the defendant [or plaintiff] named in said action in the city [or town] of , in this state, on the day of ,19 , by leaving said notice at the residence of said , in said city [or Ch. CXXXVIL] AFFIDAVITS.— FORMS. Is:!!) town] of , with , who was then over years of age, and was and is a person of discretion, and who resided at the said residence of said at the time of said service; that the office of said was not open at the time said service was made ; and that said office was then in the county in which his said residence was situated. [Signature.] [Jurat.] FORM No. 1138 — Affidavit of service of notice on an attorney at office in charge of a clerk or other person. [Venue.] , being duly sworn, says: That he is the attorney for the plaintiff [or defendant] in the action entitled in the notice, of which the annexed is a true copy; that he served said notice on , the attorney for the defendant [or plaintiff] named in said action, by delivering the same to [here naming the clerk or other person in charge] in the office of said , who at the time of such service was the clerk [or had charge of said office] of said ; that the said attorney for the defendant [or plaintiff] was absent from his said office at the time of said service. [Signature.] [Jurat.] FORM No. 1139 — Affidavit of service of summons on several defendants. (Endorsed on original summons.) State of , "] County of . j , being duly sworn, deposes and says : That he is, and was at the time of the service of the summons herein referred to, a citizen of the United States, over the age of eighteen years, and not a party to the within-entitled action ; that he personally served the within sum- mons on the hereinafter-named defendants, whom deponent knew to be the persons named in the summons, by delivering to and leaving with each of said defendants personally, at the places hereinafter set forth, in the state of , and at the time set opposite their respect- ive names, a copy of said summons attached to a copy of the com- plaint referred to in said summons. 1840 AFFIDAVITS, DEPOSITIONS, ETC. [Tit. XVIL Names of defendants served : Place where served: Time of service: [Affiant's signature.] [Jurat.] FORM No. 1140 — Affidavit of service of citation. [Title of court and cause.] State of , ~) County of .J J. F., being duly sworn, says: That he is a citizen of the United States and of the state of , and over the age of twenty-one years; that he is not interested in the within-named matter, and is competent to be a witness upon the hearing thereof; that on the day of , 19 , he served the within original citation upon X. Y., the executor of the last will and testament of L. M., deceased, in the city of , county of [by showing him said original and delivering a true copy thereof to him] ; that affiant also served upon said X. Y., as such executor, personally, a copy of the order to show cause pursuant to which said citation was issued, and a copy of the petition mentioned in said citation, by delivering copies of each thereof to, and leaving the same with, the said X. Y. [Affiant's signature.] [Jurat.] §485. DEPOSITIONS. FORM No. 1141 — Stipulation of counsel to take depositions. [Title of court and cause.] It is hereby stipulated by the parties hereto, that the deposition of , a witness on behalf of the plaintiff [or defendant] in this action [or proceeding], be taken before , a notary public in and for the county of , in the state of , at his office in said county of , on the day of , 19 , commencing at [state the time] ; and it is further stipulated, that when taken and certified to by said officer, and transmitted to the clerk of said court, such deposition may be read by either party to the action [or pro- ceeding] as evidence on the trial of the action [or proceeding], sub- Ch. CXXXVIL] DEPOSITIONS.— FORMS. 1841 ject, however, to all legal objections and exceptions that could be taken in case the witness was personally present and testified in the action. [Date.] A. B., Attorney for plaintiff. C. D., Attorney for defendant. FORM No. 1142 — Affidavit upon taking deposition of defendant as witness for plaintiff. [Title of court and cause.] State of California, County of , being duly sworn, deposes and says : That he is one of the attorneys for plaintiff in the above-entitled action; that the sum- mons in said action has been heretofore served upon , defend- ant in said action; that said defendant, , is a party to said action, and has heretofore appeared and answered therein ; that said , defendant, resides in the county of , state of Califor- nia, and within twenty-five miles of the city of , in said county of , and within said distance of the office of , a notary public in and for said County, before whom the deposition of said defendant is noticed to be taken. [Signature of affiant.] [Jurat.] FORM No. 1143 — Affidavit for taking the deposition of a resident witness. [Title of court and cause.] [Venue.] A. B., being duly sworn, deposes and says : That he is the plaintiff [or the defendant] in the above-entitled action [or proceeding] ; that the summons in the action has been served [or, that the defend- ant has appeared therein ; or, in a special proceeding, that a question of fact has arisen therein] ; that C. D. is a material witness for the plaintiff [or the defendant] for the trial of the action [or proceed- ing]. [Here state the facts showing the case to be one in which a deposition may be taken as provided in the code.] [Signature of affiant.] [Jurat.] j g^2 AFFIDAVITS, DEPOSITIONS, ETC. [Tit. XVII. FORM No. 1144 — Affidavit and application for commission for the taking of the deposition of a non-resident witness. [Title of court and cause, or proceeding.] [Venue.] A. B., being duly sworn, says: That he is the attorney for the plaintiff [or petitioner] in the above-entitled action [or proceeding] ;" that C. D. is a material witness for the plaintiff [or petitioner] in said action [or proceeding], and that said witness does not reside in this state, but resides at , in the county of , in the state [or territory] of Affiant therefore asks that a commission issue out of this court to take the deposition of said witness, and that there be attached to such commission interrogatories and cross-interrogatories settled by the Hon. , judge of said court, on which such deposition is to be taken ; that the annexed are interrogatories proposed by the plaintiff on which such deposition is to be taken. [Signature of affiant ] [Jurat.] [Annex list of proposed interrogatories.] FORM No. 1145 — Notice of taking of deposition. [Title of court and cause.] Notice is hereby given, that the deposition of K. L., a witness in behalf of the plaintiff [or defendant] in this action [or proceeding], will be taken before M. N., a notary public [or other officer author- ized to take depositions, designating], at his office in the city [or town] of , county of , in this state, commencing at o'clock M., of the day of , 19 ; and, if not completed on that day, that the taking of the same will be continued thereafter, and from day to day, and over legal holidays, until such deposition is fully taken. And you will further take notice, that the annexed is a copy of the affidavit [and order] showing that this is a proper case, and authoriz- ing the taking of said deposition. [Date.] [Signature of attorney for plaintiff or defendant.] [Address to the attorney of the adverse party.] Ch.CXXXVII.J DEPOSITIONS.— FORMS. 1843 FORM No. 1146 — Commission to take deposition of witness. [Title of court and cause, or proceeding.] The people of the state of , to , greeting: Whereas, it appears to the judge [s] of our court of the county of , state of , that , residing at , in the of , is a material witness in a certain action now pending in our said court, between , plaintiff, and , defendant, [or in the matter or proceeding above entitled,] we, in confidence of your prudence and fidelity, have appointed, and by these presents do appoint, you a commissioner to take the deposition of said witness, and therefore we authorize and empower you, at certain days and places, to be by you for that purpose appointed, diligently to examine said witness in answer to the interrogatories annexed to this commission, and upon his corporal oath, first taken before you, which oath you are hereby authorized to administer, and cause the said examination of the said witness to be reduced to writing and subscribed by the said witness, and then certified and returned [the same annexed to this commission] unto the clerk of our court aforesaid, with all convenient speed, enclosed in a sealed envelope directed to said clerk, and forwarded to him by United States mail or other usual channel of conveyance. Witness the Hon. , the judge [s] of our court of the county of , and the seal of said court, at the city of , this day of , 19 . , Clerk. [Seal.] By , Deputy Clerk. FORM No. 1147 — Instructions to commissioner. 1. All the commissioners named in the commission shall have notice of the time and place of executing it; and if any of them do not act, let the fact that they were notified, or could not be notified, and the reason for their not acting, be stated. 2. The commission must be executed by , the commissioner [or commissioners] named therein. 3. The acting commissioner [s] will examine the witnesses sep- arately, after publicly administering to such the following oath or affirmation: "You do solemnly swear that the evidence you shall give in this issue, pending between and , shall be the 1844 AFFIDAVITS, DEPOSITIONS, ETC. [Tit. XVII. truth, the whole truth, and nothing but the truth; so help you God." [Or, if the witness shall declare that he has conscientious scruples against taking an oath, or swearing in any form, he shall be per- mitted to make affirmation according to the following form: "You do solemnly declare (or affirm)," as above.] 4. The general style or title of the depositions must be drawn up in the following manner: "Deposition of , witness, produced, sworn [or affirmed], and examined, the day of , 19 , at , under and by vir- tue of a commission issued out of the court of the county of , state of , in a certain cause therein depending, and at issue between . plaintiff, and , defendant, as follows : "A. B., of [insert his place of residence and occupation], aged years and upwards, being duly and publicly sworn [or af- firmed] , pursuant to the directions hereto annexed, and examined on the part of the , doth depose and say as follows, viz. : "1. To the first interrogatory he saith: [Insert the witness's an- swer.] "2. To the second interrogatory he saith: [Give witness's answer; and so on throughout, as to the other interrogatories.] " If he can not answer, let him say he does not know. 5. If there be any cross-interrogatories, the witness will go on thus: "First — To the first cross-interrogatory, he saith [giving an- swer, and so on throughout, as to other cross-interrogatories]." 6. When the witness has finished his deposition, let him subscribe it. and the acting commissioner [s] will certify as follows: "Examination taken, reduced to writing, and by the witness sub- scribed and sworn to, this day of , 19 , before , Commissioner [s]." 7. If any papers or exhibits are produced and proved, they must be annexed to the depositions in which they are referred to, and be subscribed by the witness, and be endorsed by the acting commis- sioner [s] in this manner: "At the execution of a commission for the examination of wit- nesses, upon issues herein between , plaintiff, and , de- fendant, this paper [describe the same] was produced and shown to [insert the witness's name], and by him deposed unto at the time of his examination before , Commissioner [s]." Ch. CXXXVIL] DEPOSITIONS.— FORMS. 1S45 8. The acting commissioner [s] will sign [his or their] name[s] to each half-sheet of the depositions and exhibits. 9. If an interpreter is employed, the commissioner [s] will admin- ister to him the following oath and certify thereto : "You do solemnly swear that you will truly and faithfully inter- pret the oath and interrogatories to be administered to , a witness now to be examined, out of the English language into the language ; and that you will truly and faithfully interpret the answers of the said thereto, out of the said language into the English language." Let the deposition be subscribed by the interpreter as well as by the witness, and certified by the acting commissioner [s], as follows: "Examination taken, reduced to writing, subscribed by the wit- ness and by the sworn interpreter, and sworn to by the witness, this day of , 19 , before , Commissioner [s]." 10. The commissioner [s] will make return on the back of the com- mission by endorsement, thus: "The execution of this commission appears in certain schedules hereunto annexed. , Commissioner [s]." 11. The depositions [and exhibits, if any] must be annexed to the commission, and then the commission, the directions,, the interroga- tories, cross-interrogatories, depositions, and exhibits must be folded into a packet and bound with tapes. The acting commissioner [s] to set [his or their] seal[s] at the several meetings or crossings of the tape, endorse [his or their] name[s] on the outside, and direct it thus: To , Esq., Clerk of the court, at , state of 12. When the commission is thus executed, made up, and directed, it must be returned in the manner specified in the direction on the commission, if there be any. 13. If there be no direction on the commission specifying the man- ner in which it is to be returned, then it must either be delivered to the court by , the acting commissioner [s], personally, or else be forwarded by some person coming to this place, and who must be able, on his arrival, to make oath before , the judge [s] or the clerk of the court, that he received the same from the hands of [naming him or them], the commissioner [s], and that it had not been opened or altered since he so received it. Jury's PI.— 117. J84G AFFIDAVITS, DEPOSITIONS, ETC. [Tit. XVI\. 14. In case of returning the commission by mail, it is to be depos- ited by , the acting commissioner [s], in the nearest post-office, [he or they] making the following endorsement thereon: "Deposited in the post-office at , this day of , 19 , by [me or us]. , Commissioner [s]." 15. In case of returning the commission by a vessel, it is to be deposited by , acting commissioner [s], in the letter-bag of such vessel, he [they] making upon the commission the following en- dorsement : "Deposited in the letter-bag of the , now lying at , and bound for the port of , this day of , 19 , by [me or us]. , Commissioner [s]." It may also be forwarded by any usual conveyance. The commissioner [s] [is or are] requested to be very careful to observe the foregoing instructions, as the smallest variance may vitiate the execution of the commission. [Here may be given special or additional instructions.] FORM No. 1148 — Deposition of witness. (To be annexed to the commission.) [Title of court and cause.] Deposition of K. L., a witness produced and examined this day of , 19 , under and by virtue of a commission issued out of the court of the state of , in the county of . and to which this deposition is annexed, in the above-entitled action [or proceeding], pending and at issue therein between A. B., the plaint- iff in said action, and C. D., the defendant therein, [or between A. B., the petitioner in said proceeding, and C. D., the respondent therein,] as follows: K. L., of the [state his residence], aged years and upwards, being duly sworn [or affirmed], doth depose and say as follows: 1. To the first direct interrogatory [stating it] he saith: [State his answer.] 2. To the second direct interrogatory [stating it] he saith: [State his answer; and so on as to all the direct interrogatories.] 1. To the first cross-interrogatory [stating it] he saith: [State his answer.] 2. To the second cross-interrogatory [stating it] he saith: [State his answer ; and so on as to all the cross-interrogatories, and redirect and ra-cross interrogatories, if any.] [Signature of witness:] K. L. Ch. CXXXVII.] STIPULATIONS.— FORMS. 1847 [Certificate of commissioner to deposition.] State of County of I, E. F., commissioner under the commission hereto annexed, do certify, that K. L., the witness, named therein, personally appeared before me on the day of , 19 , at , in the county of , in the state of , and being by me duly sworn, made answer to the several interrogatories annexed to the foregoing com- mission, and did depose to the matters contained in the foregoing deposition. And I further certify, that when the deposition was completed it was carefully read to K. L., said witness, and was cor- rected by him in each and every particular which he desired, and it was then subscribed by him ; and I certify that the foregoing deposi- tion is the deposition so corrected and subscribed by him. [And I further certify, that said witness endorsed the exhibits numbered attached to said deposition.] And I further certify, that I have sub- scribed my name to each half-sheet of said deposition [and to each exhibit] . And I further certify, that G. H., Esq., [or no one] appeared in behalf of the plaintiff [or petitioner], and I. J., Esq., [or no one] appeared in behalf of the defendant [or the respondent, or the con- testant]. E. F., Commissioner. §486. STIPULATIONS. FORM No. 1149 — Waiver of answer. [Title of court and cause.] It is hereby stipulated by and between the parties hereto that formal answer be and. the same is waived herein, and it is further stipulated that the allegations of the complaint on file herein may for the purposes of trial be deemed denied. [Date.] A. B., Attorney for plaintiff. C. D., Attorney for defendant. FORM No. 1150 — Stipulation to transfer cause to another department. [Title of court and cause.] Whereas, the above-entitled action was originally assigned by the Hon. , presiding judge of said court, to department No. of said court ; and whereas the said judge of said department has expressed his desire, because of his present overcrowded calen- 1848 AFFIDAVITS, DEPOSITIONS, ETC. [Tit. XVII. dar, to have said cause transferred to some other department of this court for state any other reason for the transfer] ; Wherefore, the undersigned attorneys for the respective parties herein hereby stipulate and agree that said cause be transferred from said department No. , and be reassigned by the presiding judge of said court ; and that all motions, demurrers, and other mat- ters now pending in said cause be heard in the department to which the same shall be so assigned hereunder, and that said cause be determined therein, subject to such further order or orders of the court as may be made. [Date.] A. B., Attorney for plaintiff. C. D., Attorney for defendant. FORM No. 1151 — Stipulation to dismiss appeal. [Title of court and cause.] It is stipulated in the above-entitled action, that the appeal taken by defendants, , to the supreme court of the state of , from the judgment and decree of the court of the state of , in and for the county of , made and entered in said court on , 19 , in favor of plaintiff in said action, and against the appealing defendants, is hereby dismissed, and that a motion for an order dismissing said appeal may be made and heard in the said supreme court at any time without notice, upon presenta- tion of this stipulation ; and that plaintiff waives any claim for costs incurred by him upon such appeal: It is further stipulated, that upon the making of the order of said court dismissing said appeal, the clerk of the supreme court may enter such dismissal forthwith, and that a remittitur may issue thereon forthwith, and be sent to the clerk of said court, and that upon the filing of said remittitur in the office of the county clerk of County, plaintiff will thereupon file a duly executed satisfaction of judgment entered in his favor in said action for his costs incurred in said action in said court. [Date.] A. B., Attorney for plaintiff. C. D., Attorney for defendants. FORM No. 1152 — Stipulation as to facts. (In County of Saguache v. Decker, 10 Colo. 149; 14 Pac. 123.) [Title of court and cause.] The parties hereto agree upon the following statement of facts, Ch. CXXXVIL] STIPULATIONS, ETC. 1849 and submit the same to the court for the determination of the points in controversy hereinafter specified. The points agreed upon are as follows: [Here follows statement of facts.] The points in controvers.y, and upon which the decision of the court is asked, are as follows : The foregoing bills have been contracted by a duly appointed and organized board of health within the county of Saguache, when said board of health was the board of health of an incorporated town. Is or is not the county liable therefor? [Date.] [Signatures of parties.] FORM No. 1153 — Stipulation to restore and file original complaint destroyed by fire. (In Athearn v. Ryan, 154 Cal. 554; 98 Pac. 390.) [Title of court and cause.] It is hereby stipulated and agreed, that the foregoing and annexed copy of complaint is a true and correct copy of the original com- plaint filed in the superior court of the city and county of San Fran- cisco, state of California, in the action entitled Charles H. Athearn, plaintiff, v. Annie Ryan, defendant, on or about the 5th day of October, 1905. It is also stipulated and agreed, that said copy of said complaint be filed in said court as of the 5th day of October, 1905, in the place and stead of said original, which was destroyed by fire on or about the 18th day of April, 1906. Benjamin Healey, Attorney for defendant. Garoutte & Goodwin, Attorneys for plaintiff. §487. ANNOTATIONS. A stipulation by a party, represented In the action by an attorney of record, will have no effect, and will be disregarded by the court: Wylie v. Sierra G. Co., 120 Cal. 485, 487, 52 Pac. Rep. 809. See Board of Commissioners v. Younger, 29 Cal. 147, 87 Am. Dec. 164; Mott v. Foster, 45 Cal. 72. Affidavit as basis of jurisdiction. — The court's jurisdiction over the defendant to make service by publication depends upon a valid affidavit filed as provided by the code; and where there is no such affidavit, a decree based upon such proceedings is a nullity. But the mere omission of the officer attesting it to complete the affidavit, by attaching his certificate or jurat to such paper, may be supplied, and the defect remedied, where in fact the affiant had taken the oath, and it is competent to show in such case by parol that the affidavit for constructive service was accordingly sworn to by the affiant before the clerk of the court: Bantley v. Finney, 43 Neb. 794, 62 N. W. 214. 1850 BILL OF PARTICULARS. [Tit. XVII. Error In signing.— That an oath or an affidavit does not lose its vitality because of the omission of the clerk to certify or attach his jurat, see, also, Kruse v. Wil- son, 79 111. 233; Tallman v. Ely, 6 Wis. 244; Jamison v. Weaver, 84 Iowa 611, 51 N. W. 65. So it has been held that where a party had made an affidavit, and had sworn to it before an officer authorized to administer oaths, but had not signed the affidavit, that the action was good, and that it is not necessary to the making of a good affidavit that the party making it should actually sign it: Bates v. Robinson, 8 Iowa 318. See Harris v. Lester, 80 111. 307; Shelton v. Berry, 19 Tex. 154, 70 Am. Dec. 326; Garrard v. Hitsman, 16 N. J. L. 124. Compare Hargadine v. Van Horn, 72 Mo. 370, where a contrary doctrine is supported by a divided court. CHAPTER CXXXVIII. Inspection of Writings and Bill of Particulars. Page Form No. 1154. Notice of motion for an order for inspection of a paper [or account, or entries], and for a copy thereof 1850 Form No. 1155. Affidavit for order for inspection of account [or of a paper], and to take a copy thereof. 1851 Form No. 1156. Demand to have inspection of an original in- strument 1$51 Form No. 1157. Demand for a copy of an account 1852 Form No. 1158. Order directing party to furnish bill of par- ticulars 1852 § 488. Annotations 1852 FORM No. 1154 — Notice of motion for an order for inspection of a paper [or account, or entries], and for a copy thereof. [Title of court and cause.] To A. B., Attorney for plaintiff [or defendant] : Please take notice, that the defendant [or plaintiff] will move said court at the courtroom, department No. thereof, on the day of , 19 , at o'clock M., or as soon there- after as counsel can be heard, for an order requiring plaintiff [or defendant] to give to defendant [or plaintiff] inspection of a paper [or accounts, or entries] described as follows: [Here describe]; which said paper [or accounts, or entries] relates to transactions mentioned in the complaint [or cross-complaint] in this action, and which contains evidence relating to the defense against the com- plaint [or cross-complaint] herein. Said motion will be based on the complaint in this action, and on the affidavit of , a copy of which is annexed hereto and served herewith, and on the ground Ch. CXXXVIII.] MOTION FOR INSPECTION. 1851 that such inspection and copy are necessary for the proper defense of the defendant [or plaintiff] to the complaint [or cross-complaint] herein. [Date.] C. D., Attorney for defendant. FORM No. 1155 — Affidavit for order for inspection of account [or of a paper], and to take a copy thereof. [Title of court and cause.] [Venue.] , being duly sworn, says: That he is the attorney for the defendant [or plaintiff] in this action; that plaintiff [or defendant] has in his possession [or under his control] a book [or document, describing it] relating to the transactions alleged in the complaint [or cross-complaint] in this action, and which contains evidence relating to the defense in the action [or to the defense against said cross-complaint] ; that request has been made of the plaintiff [or defendant] to give inspection of such entries in said book [or of said document] and for permission to take a copy thereof, unless plaintiff [or defendant] would give him inspection and a copy thereof; that plaintiff [or defendant] refused to give or allow defendant [or plaintiff] such inspection and copy, and has refused to give permis- sion to take such copy. [Signature.] [Jurat.] [Add, where required by statute, affidavit of merits.] FORM No. 1156 — Demand to have inspection of an original instrument. [Title of court and cause.] To A. B., Attorney for plaintiff [or cross-complainant] : Demand is hereby made for an inspection of the original paper [describing it], a copy of which purports to be contained [or is annexed to] the complaint [or cross-complaint] in this action. Said inspection is desired for the purpose of controverting the genuineness and due execution of said purported instrument. [Or state any ■other purpose of the inspection.] [Date.] C. D., Attorney for defendant [or cross-defendant.] 1852 BILL OF PARTICULARS. [Tit. XVII. FORM No. 1157 — Demand for a copy of an account. [Title of court and cause.] To A. B., Attorney for plaintiff: The defendant in this action hereby demands a copy of the account sued on herein. [Date.] C. D., Attorney for defendant. FORM No. 1158 — Order directing party to furnish bill of particulars. [Title of court and cause.] [After recitals as to the papers filed upon which the motion is made, hearing, etc. :] It is ordered, that the herein deliver to the herein, on or before the day of , 19 , a bill of particulars as to . It is further ordered, that on the trial of this action the be precluded from giving any evidence respecting beyond that which may be specified in the bill of particulars above ordered. It is further ordered, that the proceedings in this action on the part of , be stayed until compliance with this order, and that days' further time be given in which to answer [or reply] herein, after the delivery to him of said bill of particulars. [Or state a definite day.] S. T., Judge. Form of bill of particulars in an action upon a promissory note: Bishop v. Mc- Henry, 4 Kan. App. 525, 44 Pac. 1016. §488. ANNOTATIONS. — Inspection of writings and bill of particulars. 1-3. Purpose of bill of particulars. 4. Demand for bill by defendant. 5. Failure to file upon demand. — Effect of. 6. Motion to make bill more specific. 7. Time to answer extended by motion. 8. Failure to deliver bill within statutory time. — Discretion of court. 1. The purpose of a bill of particulars 4. Demand for bill by defendant. — A is to apprise a party of specific demand bill of particulars may be demanded by of his adversary: Auzerais v. Naglee, the defendant if the cause of the action 74 Cal. 60, 64, 15 Pac. 371. See Ferry ig not set out in tne complaint with v. King Co., 2 Wash. 337, 26 Pac. 537, 538. sufficient fulness: Knowles v. Sander- 2. The chief office of a bill of particu- CQck> 10? Ca , 629j 641> 4Q pac 1Q47 lars is to amplify the pleading and more g _ Faj|upe to fi|e dema nd.-Ef- minutely specify the claim or defense set up. It does not set forth cause of v action or ground of defense: Blackburn ticulars after demand rendered it error v. Washington, G. M. Co., 19 Wash. 361, to receive evidence of any item of ac- 53 Pac. 369 370. count: Scott v. Frost, 4 Colo. App. 557, 3. A bill of particulars makes the 36 Pac. 910. plaintiff's demand more specific, and 6. Motion to make bill more specific. limits his proof to items set out: Edel- —As to what extent a bill of particu- man v. McDonell, 126 Cal. 210, 213, 58 lars may go into details, when required, Pac. 528. is largely a matter of discretion with ch. cxxxix.] ANNOTATIONS, ETC. 1853 the trial court. Such court does not abuse its discretion when it denies a motion of the defendant in which he asks that the plaintiff be required to make items in the bill of particulars submitted more specific for the purpose of furnishing the defendants evidence or the names of witnesses for his de- fense: Bellingham v. Linck, 53 Wash. 208, 101 Pac. 8.43, 844, citing, as to the office of the bill of particulars, Black- burn v. Washington G. M. Co., 19 Wash. 361, 53 Pac. 369; Ingram v. Wishkah Boom Co., 35 Wash. 191, 77 Pac. 34; and as to the discretion of the court in denying motion to make bill of par- ticulars more specific, Ferry v. King Co., 2 Wash. 337, 343, 26 Pac. 537; Turner v. Great Northern R. Co., 15 Wash. 213, 217, 46 Pac. 243, 55 Am. St. Rep. 883. 7. Time to answer extended by motion. — Effect of filing a motion for a bill of particulars is ipso facto to extend the time for answering: Pluitimer v. Weil, 15 Wash. 427, 46 Pac. 64S, 649. 8. Failure to deliver bill within statu- tory time. — Discretion of the court. — A failure to deliver a bill of particulars within a statutory time does not give the defendant the absolute right to have the evidence offered at the trial re- jected. It is within the discretion of the court to determine whether the penalty of the statute should be en- forced and the evidence excluded; and hence, where a bill of particulars has been furnished long prior to the trial, though not within the statutory five days, it was not error for the court to admit such evidence: McCarthy v. Mt. Tecarte L. & W. Co., 110 Cal. 687, 692, 43 Pac. 391; Silva v. Bair, 141 Cal. 599, 601, 75 Pac. 162. See Robbins v. Butler, 13 Colo. 496, 22 Pac. 803. CHAPTER CXXXIX. Trials, Witnesses, and Proceedings for Contempt. Page 489. Trials 1854 Form No. 1159. Order for drawing trial jury 1854 Form No. 1160. Venire 1854 Form No. 1161. Notice of motion for trial of special issues by jury ■ 1855 Form No. 1162. Order for trial of special issues by jury 1855 Form No. 1163. Minutes and certificate of drawing jury 1856 Form No. 1164. Order consolidating causes for purposes of trial 1857 Form No. 1165. Authorization to attorney to compromise pend- ing action 1857 Form No. 1166. Verdict 1858 490. Witnesses, and proceedings for contempt 1858 Form No. 1167. Civil subpoena 1S58 Form No. 1168. Attachment against a witness for not obey- ing a subpoena 1S59 Form No. 1169. Attachment for defaulting 1859 Form No. 1170. Affidavit in proceedings for punishing a con- tempt of court. (Common form.) 1860 Form No. 1171. Affidavit in proceedings for contempt. — Action at law to prevent usurpation of office 1860 Form No. 1172. Motion for warrant of arrest in proceedings for contempt in neglecting and refusing to obey a judgment 1861 1854 TRIALS, WITNESSES, ETC. [Tit. XVII. Form No. 1173. Order to show cause, made on the filing of affidavit charging contempt 1861 Form No. 1174. Warrant of attachment to be issued in pro- ceedings to punish for a contempt of court. 1861 Form No. 1175. Recitals and judgment for a contempt of court committed in the presence of the court 1861 Form No. 1176. Judgment in a proceeding for a contempt of court against a witness for refusing to an- swer a relevant and material question 1862 § 491. Annotations 1863 §489. TRIALS. FORM No. 1159 — Order for drawing trial jury. [Title of court and cause.] In the matter of drawing a trial jury : It appearing that the business of this court will require the attend- ance of a trial jury for the trial of criminal cases, and civil actions in which jury trials shall have been demanded, and no jury being in attendance, it is now, by the court, ordered that a trial jury be immediately drawn and summoned to attend before this court in department No. thereof, on the day of , 19 , at o'clock M., and that the number so drawn be [here giving the number]. Done in open court, this day of , 19 . S. T., Superior Judge. [Filing endorsement.] FORM No. 1160— Venire. [Title of court and caus^.] The people of the state of , to the sheriff of the county of , greeting: You are hereby commanded to summon good and lawful men from the body of the county, and not from the bystanders, legally qualified citizens of said county, to serve as [trial] jurors, in the superior court, and that they be and appear at the courtroom thereof, on , the day of , 19 , at o'clock M. Witness the Honorable the Judges of the Superior Court and the seal thereof, this day of , 19 . [Attest: , Clerk. [Seal.] By , Deputy Clerk. [Filing endorsement ] €h. CXXXIX.J SPECIAL ISSUES.— FORMS. 1855 FORM No. 1161 — Notice of motion for trial of special issues by jury. [Title of court and cause.] To A. B., Attorney for plaintiff [or defendant] : Take notice, that upon the pleadings and proceedings in the above- entitled action, and upon the affidavits, with copies of which you are herewith served, a motion will be made at [stating time and place] upon the opening of the court, or as soon thereafter as counsel can be heard, that the special issues [or questions of fact involved] in the above-entitled action, as said special issues [or questions of fact] are stated in schedule A, hereto annexed, be submitted to a jury for trial, and for such or further relief as to the court may seem proper. [Date.] C. D., Attorney for defendant [or plaintiff]. [Statement of special issues.] Schedule A. [Annexed to foregoing notice.] The following special issues [or questions of fact] are proposed to be submitted to a jury for trial in the above-entitled action, as mentioned in the foregoing notice, to wit : 1. Whether [stating a specific issue under the pleadings]. 2. Whether [etc.]. FORM No. 1162 — Order for trial of special issues by jury. [Title of court and cause.] On reading and filing the affidavit of , attorney for the plaintiff [or defendant] in the above-entitled action, showing that this action is at issue upon the complaint and answer therein, and on reading and filing a notice of motion on the part of the plaintiff [or defendant] herein for an issue or issues in this cause to be tried by a jury, with proof of due service of said affidavit and notice of motion on , attorney for the defendant [or plaintiff], and on reading [specify other papers read], and after hearing [etc.; or no one appearing in opposition] : It is hereby ordered, that the following special issues of fact aris- ing upon the pleadings in this action be tried by a jury at the court, in and for the county of , to wit : 1. [Stating the question to be tried, e. g.] Whether the defendant executed the note and mortgage mentioned in the complaint in this action. 2. [Stating question to be tried, e. g.] Whether the plaintiff 185G TRIALS, WITNESSES, ETC. [Tit. XVII. executed the release of the said note and mortgage, as stated in the answer. And that the plaintiff hold the affirmative upon the first question, and the defendant the affirmative upon the second question ; that the issue between the plaintiff and the defendant be [stating issue, e. g.] whether the release of the lands of the said defendant from the lien of the mortgage mentioned in the complaint of the plaintiff was obtained by the defendant by duress and fraud, or either, as alleged in the reply [or complaint] ; and that the plaintiff be considered as holding the affirmative of the last-mentioned issue upon the trial thereof. [Date.] S. T., Judge. FORM No. 1163— Minutes and certificate of drawing jury. [Title of court and cause.] Be it remembered, that, in pursuance of an order made by the Hon. , judge of the superior court, department No. , in and for the county and state aforesaid, on the day of , 19 , ordering me to draw from the jury-box containing the names of persons selected by the board of supervisors of said county to serve as jurors for the year 19 , slips of paper containing the names of persons to form a jury to serve until discharged: We , judges of the superior court, departments No. and No. , and , clerk of said court, and , sheriff of said county, did, in open court, on , the day of , 19 , at the hour of o'clock M. of said day, after duly shaking the jury- box, and in the presence of the court, draw therefrom slips of paper containing the names of the following persons written thereon to serve as said jury, to wit : No. Number of Ballot. Name. Residence. Occupation. [Following with the names, etc., of as many as may be drawn.] The people of the state of to , greeting : You are hereby commanded to summon the above-named citizens of said county to serve as jurors in the superior court, Ch. CXXX1X.] CONSOLIDATING CAUSES, ETC.— FORMS. 1857 department No. , and that they be and appear at the court- room thereof on , the day of ,19 , at o'clock M. In witness whereof, we have hereunto set our hands, this day of , 19 . S. T., Judge of Superior Court. [Seal.] , County Clerk. By , Deputy Clerk. [Filing endorsement.] FORM No. 1164 — Order consolidating causes for purposes of trial. (In Scheerer & Co. v. Deming, 154 Cal. 138; 97 Pac. 155.) [Title of court and consolidated causes.] Upon the stipulation on file in this case, and upon the motion of R. L. Horton, attorney for defendant Allen D. Butt, and good cause appearing therefor: It is hereby ordered, that the following cases be and the same are hereby consolidated and transferred to department No. 3 of said court, for the purpose of trial, and that all of said causes shall be heard and tried together, upon the date that the first of either of said causes shall be set for trial, to wit: [Here follow titles and numbers of cases included in the order.] Dated June 17, 1905. Waldo M. York, Judge of Superior Court. FORM No. 1165 — Authorization to attorney to compromise pending action. Know all men by these presents, that I, A. B., of , state of , the party of the first part, have made, constituted, and appointed, and by these presents do make, constitute, and appoint, E. F., party of the second part hereto, my true and lawful attorney, for me and in my name, place, and stead, to agree upon, consummate, compromise, and settle that certain action now pending in the court of , county of , state of , No. , and entitled A. B., plaintiff, v. C. D., defendant; and I hereby authorize the party of the second part, as my said attorney, to receive and receipt for any and all amounts in my name, place, and stead, upon any compromise or settlement of said action which may be agreed upon by my said attorney and the defendant, and to execute all acquittances, receipts, and releases to a complete settle- ment of said action, and upon settlement thereof to dismiss the same jg58 TRIALS, WITNESSES, ETC. [Tit. XVII. or any other action for the same cause which in his judgment may be deemed necessary or expedient to be brought for the settlement and adjustment of the demand made therein. Giving and granting unto my said attorney the authority to do any and all of said acts as effectually as I might do if personally present, hereby confirming all acts hereunder done and performed or to be done and performed in the premises. In witness whereof, I have hereunto subscribed my name, this day of , 19 . A. B. "Witnesses: [Or acknowledgment, as required.] FORM No. 1166— Verdict. (From the record in Schneider v. Railway Co., 134 Cal. 482 ; 66 Pac. 734.) [Title of court and cause.] In open court, April 12, 1900. We, the jury in the above-entitled case, find a verdict in favor of the plaintiff in the sum of $5,000. , Charles C. Levey, Foreman. [Endorsement of filing.] §490. WITNESSES, AND PROCEEDINGS FOR CONTEMPT. FORM No. 1167 — Civil subpoena. [Title of court and cause.] The people of the state of send greeting to : We command you, that, all and singular business and excuses being set aside, you appear and attend the superior court of the county of , state of , at a session of said court, to be held at the courthouse in the city of , on , the day of , 19 , at o'clock M., then and there to testify in a certain case now pending in said court, then and there to be tried, between plaintiff and defendant, on the part of the plaintiff [or defendant, as the case may be]. And for a failure to attend you will be deemed guilty of a con- tempt of court, and liable to pay all loss and damages sustained thereby to the party aggrieved. Given under my hand, this day of , 19 . [Seal.] , County Clerk. By , Deputy Clerk. Ch. CXXXIX.] ATTACHMENT FOR DEFAULTING.— FORMS. 1859 FORM No. 1168 — Attachment against a witness for not obeying a subpoena. The people of the state of , to the sheriff of the county of : We command you to attach , and bring him forthwith [or on the day of , 19 ,] personally before our court [or, if on a certain term, naming it], held in and for our county of [or before , referee in the action hereafter mentioned], at , to answer to us for certain contempts against us, in not obeying our writ of subpoena, commanding him to appear on the day of , 19 , before the said court [or other court, or referee], to testify in an action there to be tried between , plaintiff, and , defendant ; and you are further commanded to detain said in your custody until he shall be discharged by our said court [or by said referee]. And have you then and there this writ. Witness the Hon. , justice [or judge] of said court, at , on the day of , 19 . [Seal.] , Clerk. [Endorsed:] Allowed this day of , 19 . S. T., Justice [or Judge] of Court. FORM No. 1169 — Attachment for defaulting. [Title of court and cause.] The people of the state of , to the sheriff of the county of , greeting: You are hereby commanded forthwith to attach the body of f and bring him before the superior court, to answer for a contempt of said court, in failing to appear as in the above-entitled cause, as per mandate of this court. Witness the Hon. , judge of the said superior court, this day of , 19 . , County Clerk. [Seal.] By , Deputy Clerk. X860 TRIALS, WITNESSES, ETC. [Tit. XVII. FORM No, 1170 — Affidavit in proceedings for punishing a contempt of court. (Common form.) [Title of court and cause.] [Venue.] A. B., being dvly sworn, says : That on the day of , 19 , a judgment of a perpetual injunction [or other restraining judgment or order] was rendered and entered against C. D. in an action in the courl of the state of , in the county of , m which this affiant, A. B., is plaintiff, and the said C. D. is defend- ant; that said injunction [or order], among other things, enjoined said C. D., the defendant in that action, from [stating the acts which said injunction enjoined said C. D. from doing] ; that a copy of said injunction, certified to by the clerk of said court, was served on said C. D. at tbe county of , in the state of , on the day of , 19 , and he then had, and ever since has had, knowl- edge anA notice of said injunction ; that said judgment has not been applied from, reversed, or set aside, and is in full force and effect ; that after said service, to wit, on the day of , 19 , said 0. D. did [stating the acts constituting the contempt], in disobedi- ence to the commands of said injunction, and therefore this affiant •marges said C. D. with a contempt of this court. [Affiant's signature.] [Jurat.] FORM No. 1171 — Affidavit in proceedings for contempt.— Action at law to prevent usurpation of office. (In State ex rel. Mahoney v. McKinnon, 8 Ore. 487.) x State of Oregon, ss County of Douglass. J I, William R. Willis, being duly sworn, say : I am an attorney for plaintiff above-named; that plaintiff did, on the 25th day of June, 1879 recover judgment in the above-entitled court and cause against the defendants, J. H. Shupe and E. J. Page ; that [thereby] they were [adjudged] guilty of usurping and unlawfully exercising the office of trustees of the city of Oakland, and [it was therein further ordered] that they be excluded therefrom . * * * that the said defendants i The affidavit and the motion set forth in forms Nos. 1171 and 1172 were held sufficient as a basis for an order to the defendants to show cause. It is not im- proper for the attorney to make the affidavit upon which the proceedings for contempt may be instituted where the statute provides that any person having knowledge of the facts is competent to make such affidavit: State ex rel. Mahoney v. McKinnon, 8 Ore. 487, 491, citing section 643 of the Oregon Civil Code. Ch CXXXIX.] PROCEEDINGS FOR CONTEMPT— FORMS. JStJl [and each of them], in disobedience of said lawful, judgment, continue to and do now usurp and exercise the office of trustees of said city of Oakland, refusing and neglecting obedience to said judgment. 1 r Jurat 1 William R. Willis. FORM No. 1172 — Motion for warrant of arrest in proceedings for contempt in negJecting and refusing to obey a judgment. (In State ex rel. Mahoney v. McKinnon, 8 Ore. 487.) [Title of court and cause.] Now comes the plaintiff above named, and moves the Hon. H. F. Watson, judge of the above-entitled court, upon the foregoing affi- davit, for a warrant of arrest against the said defendants, E. J. Page and J. H. Shupe, to answer for contempt in neglecting and refusing to obey the judgment described in said affidavit. William R. Willis, Plaintiff's attorney. FORM No. 1173 — Order to show cause, made on the filing of affidavit charg- ing contempt. [Title of court and cause.] Upon reading and filing the affidavit of A. B., charging and show- ing that C. D. has disobeyed the commands of a judgment of injunc- tion [or other restraining judgment or order] rendered and entered in the court of the state of , in an action therein in which said A. B. is plaintiff and said C. D. is defendant : It is ordered, that the said C. D., show cause before said court at the courtroom thereof, on [stating the time], why he should not be punished for a contempt of said court for such disobedience. It is further ordered, that this order be served on said C. D. by delivering to him personally a certified copy thereof, with a copy of said affidavit of A. B. thereto attached, at least days before the date of the hearing of said order to show cause. [Date.] S. T., Judge. FORM No. 1174 — Warrant of attachment to be Issued in proceedings to pun- ish for a contempt of court. [Title of court and cause.] It appearing from the affidavit of A. B., filed on the day ol , 19 , that C. D. has disobeyed the commands of the injunc- tion [or order] in the judgment rendered and entered on the i This last averment in the original was upon information and belief. Jury's PI.— 118. 1362 TRIALS, WITNESSES, ETC. [Tit. XVIL day of , 19 ., in an action in said court of the state of , in the county of , in which said A. B. is plaintiff and said C. D. is defendant, and that said C. D. was personally served with a copy of said judgment and injunction [or order] on the day of , 19 , and that said C. D.. after he was so served with said copy, and knew of said judgment and injunction [or order], wilfully disobeyed the commands of said injunction [or order] , and is thereby guilty of a contempt of the court : Now, therefore, it is ordered, that a warrant of attachment be issued to bring said C. D. before this court on [stating the time], then and there to answer the charge of contempt contained in said affidavit. And it is further ordered, that a copy of said affidavit be served on said C. D. at the time he is arrested under such warrant of attachment. [Date.] S. T., Judge. FORM No. 1175 — Recitals and judgment for a contempt of court committed In the presence of the court. [Title of court and cause.] Whereas, during the trial of the above-entitled action in this court, before a jury, A. B., Esq., was attorney for the plaintiff, and C. D., Esq., was attorney for the defendant, and during the progress, of the trial of said action the said A. B., who was the attorney for plaintiff, on the day of , 19 , in the presence of the court, and in the presence of the jury before whom said action was being tried, struck said C. D. a violent blow with a cane [or state the fact as it may be] ; and whereas, said misconduct on the part of said A. B. tended to and did interrupt the due course of said trial : Wherefore, the court finds that said A. B. is guilty of a contempt of this court; and it is adjudged that he be punished for such con- tempt by a fine of $ [or state any other penalty imposed]. Done in open court, this day of , 19 . S. T., Judge. FORM No. 1176— Judgment in a proceeding for a contempt of court against a witness for refusing to answer a relevant and material question. [Title of court and cause.] It appearing to the court, that in the above-entitled action, while the same was regularly on for trial in this court, at the courtroom Ch. CXXXIX.] ANNOTATIONS, ETC. 1863 thereof, on the day of , 19 , one F. G. was duly sworn as a witness, and was being examined as a witness; that A. B., the attorney for the plaintiff in the action, asked said F. G., as such witness in the action, this question: [State the question] ; that such question was and is material and relevant under the issues in the action; that said F. G., said witness, thereupon declined to answer said question, notwithstanding he was then and there ordered by the court to answer the same; that said F. G. thereupon refused, and still refuses, to answer said question : Wherefore, the court finds that because thereof said F. G. is guilty of a contempt of this court; and it is adjudged that the said F. G. be punished for such contempt by imprisonment in the county jail of the county of , in this state, until he consents to answer such question. Done in open court, this day of , 19 . S. T., Judge. §491. ANNOTATIONS. — Trials, witnesses, and proceedings for contempt. 1. Trials. — Admissions in pleadings. 2. Unnecessary averments need not be proved. 3. Objections on motion stated in the conjunctive. 4. Abstract instruction. — When prejudicial. 5. Rule as to abstract instruction not an inflexible one. 6. Erroneous instruction. — When not prejudicial. 7. Not error to refuse incorrect charge. 8. Repetitions in charges properly refused. 9. Plea in abatement amounting to general denial. — Trial. 10, 11. Exceptions. 12. Repetition of exceptions upon trial. 13. Matters of record properly have no place in a bill of exceptions. 14. Discretionary authority of courts of equity to consolidate causes. 15. Effect of consolidation. 16. Effect as to issues and pleadings. 17. Single or separate judgments. — Reference. 18. Witnesses and contempts. — Statutes applicable to proceedings. 19. Jurisdiction to punish for contempt. 20, 21. Judges at chambers. 22, 23. Proceeding in vacation. 24-26. United States commissioner. 27. Disobedience by judge of writs of supersedeas of higher court. 28. Application to punish for contempt. 29. State as party. 30. Affidavit, where required, is jurisdictional. 31, 32. Affidavit upon information and belief. 33. Omission cured by answer. 34-36. Judgment must specify the contempt. 37. Refusing to answer question. — Recital in commitment 38, 39. Defenses. 40. Appealability of order. 1. TRIALS.— Admissions In pleadings. are not required to be proved as facts —Admissions contained in the pleadings in the case. The pleadings in a case 1864 TRIALS, WITNESSES, ETC. [Tit. XVII. are before the court, and constitute a part of the proceedings without being introduced in evidence: Knowles v. New Sweden I. Dist., 16 Idaho 217, 101 Pac. 81, 85; Bloomingdale v. DuRell, 1 Idaho 33; East Tennessee etc. Co. v. Kane, 92 Gft. 187, 18 S. E. 18, 22 L. R. A. 315. 2. Unnecessary averments need not be proved: Luttermann v. Romey (Iowa), 121 N. W. 1040, 1041, citing Iowa code §3639; Knapp v. Cowell, 77 Iowa 528, 42 N. W. 434. 3. Objections on motion stated in the conjunctive. — On a motion to strike out evidence on several grounds stated in the conjunctive, it is not the law that the motion must be denied unless all the objections are well based: United States Oil etc. Co. v. Bell, 153 Cal. 781, 788, 96 Pac. 901 (to quiet title, and cross-complaint to rescind and annul deed). 4. Abstract instruction. — When preju- dicial. — It is prejudicial error to give an abstract instruction which might be construed as an intimation from the court that there was some evidence on that issue when there was in fact none: C. H. Smith etc. Co. v. Weatherford (Ark.), 121 S. W. 943, 945; St. Louis etc. R. Co. V. Townsend, 69 Ark. 380, 63 S. W. 994; St. Louis etc. R. Co. v. Wood- ward, 70 Ark. 441, 69 S. W. 5; Harris L. Co. v. Morris, 80 Ark. 260, 96 S. W. 1067; Fordyce v. Key, 74 Ark. 19, 84 S. W. 797; Arkansas etc. R. Co. v. Stroude, 77 Ark. 109, 91 S. W. 18, 113 Am. St. Rep. 130. 5. Rule as to abstract instruction not an inflexible one.— The rule that the court should not instruct in such a man- ner as to intimate that there is evi- dence upon some issue where no evi- dence exists is not an inflexible one; for example, where it can be seen that no prejudice could have resulted from the giving of such an instruction, the ver- dict will not be set aside: C. H. Smith etc. Co. v. Weatherford (Ark.), 121 S. W. 943, 946; Miller v. Nuckolls, 77 Ark. 64, 91 S. W. 759, 4 L. R. A. (N. S.) 149, 113 Am. St. Rep. 122, 7 Am. & Eng. Ann. Cas. 110; Jonesboro etc. R. Co. v. Cable, 89 Ark. 518, 117 S. W. 550. 6. Erroneous instruction. — When not prejudicial.— The appellant can not com- plain of an error in instructions asked by his opponent if the same error was repeated in instructions asked by him- self: Chicago R. I. & P. Co. v. Smith (Ark.), 127 S. W. 71fc 717, citing St. Louis etc. R. Co. v. Carter, 126 S. W. 9"9, and other cases. 7. Not error to refuse incorrect charge. — A charge to the jury should be cor- rect in every particular; otherwise, a party can not complain of a refusal to give it: C. H. Smith etc. Co. v. Weath- erford (Ark.), 121 S. W. 943, 946. 8. Repetitions in charges properly re- fused. — A charge to the jury which is a repetition in substance of other charges given may be properly refused: St. Louis etc. R. Co. v. Wilcox (Tex. Civ. App.), 121 S. W. 588, 590; McCray v. Galveston etc. R. Co., 89 Tex. 168, 34 S. W. 95. 9. Plea in abatement amounting to general denial. — Trial. — Matters set up in a so-called "plea in abatement" which amount to nothing more than a general denial do not warrant a trial of such matters separate and apart from the trial on the merits: Union Loan etc. Co. v. Farbestein (Mo. App.), 127 S. W. 656, 659. 10. Exceptions. — The object of a bill of exceptions is to make that a part of the record which is not already a part of it: Ewing v. Vernon County, 216 Mo. 681, 116 S. W. 51S, 519. 11. Under section 647 of the Code of Civil Procedure of California, an excep- tion is allowed without especially reserv- ing the same, among other things, from "an order or decision from which an ap- peal may be taken," etc. Under section 939 of the same code, an appeal may be taken, among other things, from "an order granting or refusing a new trial." Hence, where the law, as in California, allows an exception to a ruling upon a motion for a new trial, it is not necessary to especially reserve the exception inas- much as the order is deemed excepted to. 12. Repetition of exceptions upon the trial. — When upon the first appearance of improper testimony the counsel raises his objection, and the same is overruled, he is not required to continually inter- pose a like objection to all similar testi- mony: McKee v. Rudd, 222 Mo. 344, 121 S. W. 312, 320, 133 Am. St. Rep. 529- 13. Matters of record properly have no place in a bill of exceptions, and such recitals therein add nothing to the valid- ity of the bill: Flanagan Mill. Co. v. City of St. Louis, 222 Mo. 306, 121 S. W. 112; Hogan v. Hinchey, 195 Mo. 527, 533, 94 S. W. 522; Harding v. Bedoll, 202 Mo Ch. CXXXIX ] ANNOTATIONS. 1865 625, 100 S. W. 638; Groves v. Terry, 219 Mo. 595, 117 S. W. 1167; Shemwell v. McKinney, 214 Mo. 692; 114 S. W. 1083; Stark v. Zehnder, 204 Mo. 442, 102 S. W. 992; Walser v. Wear, 128 Mo. 652, 31 S. W. 37; Pennowfsky v. Coerver, 205 Mo. 135, 103 S. W. 542; Coleman v. Rob- erts, 214 Mo. 634, 114 S. W. 39; Southern Missouri etc. R. Co. v. Wyatt, 223 Mo. 347, 122 S. W. 688, 689. 14. Discretionary authority of courts of equity to consolidate causes. — Courts of equity are vested with discretionary powers to consolidate causes, and such discretion will not be reviewed on appeal except for abuse: Hay ward v. Mason, 54 Wash. 649, 104 Pac. 141, 142. See Peterson v. Dillon, 27 Wash. 78, 67 Pac. 397. 15. Effect of consolidation.— Under the statute, a consolidation of actions merges all the actions into one suit. There may be many causes of action, but the effect is to join them all in one suit. There can be therefore but one judgment in a consolidated suit, and this judgment must settle all the issues involved. Where an order to consoli- date is made, the court should require the pleadings to be reconstructed as in one suit, if necessary, and should deter- mine what costs, if any, should be charged to each party in the original suits. If the pleadings are ordered reformed, the complaint in the consoli- dated suit should state all of the plaint- iff's cause of action against the defend- ants in each of the suits consolidated, and the answer of the defendants should present all issues raised in the original suits. The complaint in the consoli- dated suit should be the same as if the plaintiff had joined all causes of action alleged in the original suits in one action: Handley v. Sprinkle, 31 Mont. 57, 77 Pac. 296, 3 Am. and Eng. Ann. Cas. 531. 16. Effect as to issues and pleadings. — Consolidation of causes for the pur- poses of trial does not change the issues in the respective cases, nor render the admissions of the pleadings ineffectual when applied to the particular case in which such admissions are made: Los Angeles Pressed Brick Co. v. Higgins, 8 Cal. App. 514, 97 Pac. 414, 420. 17. Single or separate Judgments. — Reference. — As to when there should be single or separate judgments on con- solidation of causes, see note to Hand- ley v. Sprinkle, 31 Mont. 57, 77 Pac. 296, 3 Am. and Eng. Ann. Cas. 534. 18. WITNESSES AND CONTEMPTS. — Statutes applicable to proceedings. — Civil statutes rather than criminal stat- utes relating to new trials apply to con- tempt proceedings: State v. Stevenson, 104 Iowa 50, 73 N. W. 360. 19. Jurisdiction to punish for contempt may be concurrent with or independent of the power of the courts to punish the act as an indictable offense: Fisher v. McDaniel, 9 Wyo. 457, 64 Pac. 1056, 87 Am. St. Rep. 971. 20. Judges at chambers may not, un- der the Kansas statute (Laws 1897, ch. 106), punish for contempt. Orders must be made by the court: In re Barnhouse, 60 Kan. 849, 58 Pac. 4S0. 21. Under some jurisdictions, the judge at chambers in vacation is vested with power, under certain circum- stances, to punish for contempt: State v. Loud, 24 Mont. 428, 62 Pac. 497. 22. A proceeding in vacation adjudg- ing a contempt is void under the Texas practice: Ex parte Ellis, 37 Tex. Cr. Rep. 539, 40 S. W. 275, 66 Am. St. Rep. 831. 23. The power to punish for con- tempt is, under the statute, generally restricted to the court in which the con- tempt arose: Nebraska Children's H. Soc. v. State, 57 Neb. 765, 78 N. W. 267. 24. The United States commissioner is an officer of the federal court which appoints him, and the power to punish for contempts before such commissioner therefore resides in the court, and not in the commissioner: United States v. Beavers, 125 Fed. 778. 25. The district court may punish for contempt upon its commissioner's find- ings: Mau V. Stoner, 12 Wyo. 478, 76 Pac. 584. 26. A writ of prohibition will lie to prevent an arrest for contempt by a commissioner of the supreme court: People v. Carrington, 5 Utah 531, 17 Pac. 735. 27. Disobedience by judge of writs of supersedeas of higher court. — Where a judge of a district court for one of the districts of Alaska wrote letters and committed wilful and overt acts which had the direct effect of interfering with and obstructing the effectual execution of writs of supersedeas on appeal issued by the circuit court of appeals, and directed to such district judge and to 1866 TRIALS, WITNESSES, ETC. [Tit. XVIL the court over which he presided; held, that such acts constituted a contempt of the circuit court of appeals. In re Noyes, (In re Wood, In re Geary, In re Frost), 121 Fed. 209, 57 C. C. A. 445. 28. Application to punish for con- tempt should be made in the case in which the contempt was committed rather than in an independent proceed- ing instituted in the name of the state: Ferguson v. Wheeler, 126 Iowa 111, 101 N. W. 638. 29. State as party. — Under some juris- dictions proceedings to punish for con- tempt are instituted in the name of the people: Hughes v. Territory (Ariz.), 85 Pac. 1058, 6 L. R. A. (N. S.) 572; Kanter v. Clerk of Circuit Court, 108 111. App. 287. And in the Oregon pro- cedure, an amendment in civil contempt proceedings begun by a private party may be allowed, so as to substitute the state as party on relation of the private party interested: State v. Downing, 40 Ore. 309, 66 Pac. 917, construing Hill's Ann. Laws § 101. 30. The affidavit, where required, is Jurisdictional in contempt proceedings: Herdman v. State, 54 Neb. 626, 74 N. W. 1097. See In re Coulter, 25 Wash. 526, 65 Pac. 759; Otis v. Superior Court, 148 Cal. 129, 82 Pac. 853; Back v. State, 75 Neb. 603, 106 N. W. 787. 31. An affidavit upon information and belief is insufficient: Herdman v. State, 54 Neb. 626, 74 N. W. 1097; State v. Conn, 37 Ore. 596, 62 Pac. 289. But where the facts are sufficiently definite and positively stated, the presence of matter sworn to upon information and belief is immaterial: State v. Harris, 14 N. Dak. 501, 105 N. W. 621; Davidson v. Munsey, 29 Utah 181, 80 Pac. 743. 32. But allegations upon information and belief may be sufficient to institute the proceeding for contempt and put the accused to his denial: Hughes v. Ter- ritory (Ariz.), S5 Pac. 1058, 6 L. R. A. (N. S.) 572. 33. Omission cured by answer. — Lack of an allegation in the affidavit for con- tempt proceedings may be cured by an admission In the answer of the accused: State v. Downing, 40 Ore. 309, 66 Pac. 917; State v. Frew, 24 W. Va. 416, 49 Am. Rep. 257. 34. Judgment must specify the con- tempt. — The judgment must specify the insulting language used, where such is the basis of the contempt; otherwise, it is invalid: In re Elliott, 9 Kan. App. 265, 59 Pac. 673. To designate by gen- eral terms, such as that the same was "insulting and scandalous," etc., is in- sufficient: In re Moxcey, 9 Kan. App. 262, 59 Pac. 672. 35. The record of conviction for con- tempt must show on its face that the matters charged were within the court's jurisdiction; otherwise, the judgment is invalid: Otis v. Superior Court, 148 Cal. 129, 82 Pac. 853. 36. The commitment must specify the particular circumstances of the offense: Emerson v. Huss, 127 Wis. 215, 106 N. W. 518. 37. Refusing to answer question. — Re- cital in commitment. — Commitment of a witness for contempt in refusing to an- swer a question in a proceeding in which he was called as a witness must recite the question which the witness refused to answer; otherwise, the commitment is void: Overend v. Superior Court, 131 Cal. 280, 63 Pac. 372. 38. Defenses. — The truth of published charges as to the motives of the court can not constitute a defense to a charge of criminal constructive contempt. The provisions of the constitution making the truth of the charge a defense to an action for libel do not apply to proceed- ings instituted to punish for contempt: People v. News-Times Pub. Co., 35 Colo. 253, 84 Pac. 912. 39. The truth or falsity of the pub- lished articles relating to pending cases, where the court may, by order, pro- hibit their publication, is immaterial: Hughes v. Territory (Ariz.), 85 Pac. 105S, 6 L. R. A. (N. S.) 572. 40. Appealability of order. — A judg- ment or order in contempt proceedings is usually not appealable: Ex parte Brown, 3 Ariz. 411, 77 Pac. 4S9; People v. Kuhlman, 118 Cal. 140, 50 Pac. 3S2; In re Wittmeier's Estate, 118 Cal. 255, 50 Pac. 393; Blodgett v. State, 50 Neb. 121, 69 N. W. 751; Marinan v. Baker, 12 N. W. 451, 78 Pac. 531; Borrer v. State (Tex. Cr. App.), 63 S. W. 630; Drainage Dist. No. 1 v. Costello, 53 Wash. 67, 101 Pac. 497, 498. In some jurisdictions, however, the or- der or judgment in such proceedings is made an appealable one: Merchant v. Pielke, 9 N. Dak. 245, 83 N. W. 18; State v. Gray, 42 Ore. 261, 70 Pac. 904, 71 Pac. 978; Hebb v. County Court, 48 W. Va. 279, 49 W. Va. 733, 37 S. E. 676. Ch.CXL.] DISMISSAL, ETC.— FORMS. 1867 CHAPTER CXL. Nonsuit and Dismissal. Page Form No. 1177. Dismissal of action by plaintiff 1867 Form No. 1178. Stipulation of dismissal on compromise 1867 Form No. 1179. Order granting motions for nonsuit, and allow- ing additional time in which to prepare and serve bill of exceptions 1867 Form No. 1180. Judgment of nonsuit 1868 § 492. Annotations 1869 FORM No. 1177 — Dismissal of action by plaintiff. [Title of court and cause.] The above-entitled action is hereby dismissed, inasmuch as the matters involved therein were adjudged and settled in and by the above-named court in case No. , entitled , plaintiff, v. , defendant; and the clerk of the above-named court is hereby authorized and directed to enter a dismissal in said action upon the records in his office. [Date.] A. B., Attorney for plaintiff. FORM No. 1178 — Stipulation of dismissal on compromise. [Title of court and cause.] The above-entitled action having been fully settled and compro- mised, it is hereby stipulated and agreed between the parties thereto that the same may be dismissed, and the clerk of the court is hereby authorized and requested to enter judgment of dismissal therein. [Date.] A. B., Attorney for plaintiff. C. D., Attorney for defendant. FORM No. 1179 — Order granting motions for nonsuit, and allowing addi- tional time in which to prepare and serve bill of excep- tions. (In Castro v. Adams, 153 Cal. 382; 95 Pac. 1027.) [Title of court and cause.] In this action, the parties appearing by their respective attorneys, after evidence submitted on behalf of the plaintiff, Victor Castro, and also on behalf of Clinton C. Tripp, cross-complainant herein, and J 868 NONSUIT AND DISMISSAL. [Tit. XVII. after the plaintiff and said cross-complainant and each of them rest, a motion for nonsuit is made on behalf of all the defendants, other than the said Clinton C. Tripp, upon the grounds set forth in the record of the proceedings herein ; and the motion being thereupon submitted for consideration and decision, and the court having now sufficiently considered the same: It is ordered, that the said motion be and the same is hereby granted, to which rule of the court the plaintiff and cross-complain- ant, by their respective attorneys, except. By consent of counsel, the plaintiff and cross-complainant are hereby granted thirty days in addition to the ten days allowed by law in which to prepare, serve, and file their bill of exceptions herein. In open court, September 25, 1891. J. V. Coffey, Acting Judge. FORM No. 1180 — Judgment of nonsuit. (In Booream v. Potter Hotel Co., 154 Cal. 99; 97 Pac. 65.) [Title of court and cause.] The above-entitled cause came on regularly for trial in the above- entitled court on the 26th day of June, 1906, before Hon. Frank F. Oster, judge presiding in said court at the request of the Hon. J. W. Taggart, superior judge of said county of Santa Barbara; H. C. Booth and L. H. Roseberry appearing as counsel for the plaintiff, and Frank P. Flint, Barker & Bowen, Earl Rogers, and W. S. Day appearing as counsel for the defendant. The jury for the trial of said cause were duly impaneled and sworn, and oral and docu- mentary testimony introduced on behalf of plaintiff in said action. Whereupon, plaintiff closed, and defendant, by its counsel, moved said court to enter a judgment of nonsuit in said action, on the ground that upon the trial the plaintiff had failed to prove a suffi- cient case for the jury, and stating the respects in which said plaintiff had failed to make such proof, which grounds were specified in said motion. "Whereupon, upon motion of said counsel, said court decided to and did grant such motion for nonsuit, and there was caused to be entered in the minutes of said court a minute order granting defendant's motion for nonsuit therein. Now, therefore, pursuant to law and the premises : It is hereby ordered, adjudged, and decreed, that a judgment of nonsuit be and the same is hereby entered in favor of defendant and Ch. CXL.] ANNOTATIONS. 1869 against the plaintiff, on the ground that upon said trial the plaintiff has failed to prove a sufficient case for the jury. It is hereby further ordered, adjudged, and decreed, that defend- ant have and recover against plaintiff its costs of suit herein, taxed at $ Done and dated this 20th day of July, 1906. Frank F. Oster, Judge presiding. §492. ANNOTATIONS.— Nonsuit and dismissal. 1. Inherent authority of courts to order dismissal. 2-4. Demurrer to evidence as equivalent of motion. 5. Judgment of dismissal as nonsuit. 6. Waiver of motion for nonsuit. — Washington practice. 7. Extent of waiver. 8. Dismissal by plaintiff. — Statutes construed. 9. Rule under Oregon practice. 10. Law of the place governs on motion for nonsuit. 11. Dismissal as to one or more joint debtors. 12. When defendant waives error in denying his motion. 1. Inherent authority of courts to or- der dismissal. — The rule is generally recognized that the courts have the power independently of the statute or a rule of court to dismiss an action when- ever it appears that the plaintiff has, without sufficient excuse, failed to prosecute it to final judgment: Colo- rado-Eastern R. Co. v. Union Pacific R. Co., 94 Fed. 312, 36 C. C. A. 263; Ashley v. May, 5 Ark. 408; Depuy v. Shear, 29 Cal. 238; People v. Jefferds, 126 Cal. 296, 58 Pac. 704; State Sav. Bank v. Albertson, 39 Mont. 414, 102 Pac. 692, 694. 2. Demurrer to evidence as equiva- lent of motion. — A motion for nonsuit is tantamount to a demurrer to the evi- dence, or an objection that, admitting all the proved material facts to be true, said facts do not in legal effect operate in favor of the plaintiff, or, in other words, do not entitle him to the relief asked for by him: Bush v. Wood, 8 Cal. App. 647, 97 Pac. 709, 710, (negligence); Kramm v. Stockton Electric R. Co., 10 Cal. App. 171, 101 Pac. 914, 918; Goldstone v. Ice Co., 123 Cal. 625, 56 Pac. 776; Wasserman v. Sloss,, 117 Cal. 425, 49 Pac. 566, 3S L. R. A. 176, 59 Am. St. Rep. 209. 3. A demurrer to the evidence is the counterpart, in some states, of a mo- tion for nonsuit, and where the same Is general it has been held that no ques- tion of defect of parties can be raised thereon; for to sustain a ruling upon such ground would be to bar the plaint- iff's right of recovery because of a defect to which his attention had not been called and which he was given no opportunity to remedy: Larimore v. Muller, 78 Kan. 459, 96 Pac. 852, 953. 4. A demurrer to the evidence admits as true every fact which the testimony tends to prove, and every inference which may reasonably be drawn there- from: Kinlen v. Metropolitan St. R. Co., 216 Mo. 145, 115 S. W. 523, 527. 5. Judgment of dismissal as nonsuit. — A judgment of dismissal following a failure of the plaintiff to give security for costs, where ordered to do so, is a nonsuit within the purview of the stat- ute of limitations: Wetmore v. Church, 188 Mo. 647, 87 S. W. 954, 3 Am. and Eng. Ann. Cas. 94, (applying § 4285, Mo. Rev. St. 1899). 6. Waiver of motion for nonsuit. — Washington practice. — In the state of Washington, it is established law that a motion for nonsuit is waived by put- ting in evidence in defense: Port Town- send v. Lewis, 34 Wash. 413, 75 Pac. 982; Elmendorf v. Golden, 37 Wash. 664, SO Pac. 264; Conine v. Olympia L.. Co., 1870 NONSUIT AND DISMISSAL. [Tit. XVII. 42 "Wash. 50, 84 Pac. 407; Gardner v. Porter, 45 Wash. 158, 88 Pac. 121; Cleary v. Contracting Co., 53 Wash. 254, 101 Pac. 888, 889. 7. Extent of waiver. — The fact that a defendant goes into his defense of an action after the denial of his motion for nonsuit to which he was entitled at the time the motion was interposed oper- ates as a waiver thereof merely to the extent of allowing the plaintiff to ben- efit by any evidence introduced by defendant or by himself in rebuttal: Matson v. Port Townsend etc. R. Co., 9 Wash. 449, 37 Pac. 705, cited in Dry- den v. Pelton-Armstrong Co., 53 Ore. 418, 101 Pac. 190, 191. (See generally as to such waiver extending only to allow- ing plaintiff the benefit of any evidence thereafter introduced: Dimuria v. Seat- tle Transfer Co., 50 Wash. 633, 97 Pac. 657, 22 L. R. A. (N. S.) 471; Bennett v. Northern Pacific E. Co., 12 Ore. 49, 6 Pac. 160; Carney v. Duniway, 35 Ore. 131, 57 Pac. 192, 58 Pac. 105; Trickey v. Clark, 50 Ore. 516, 93 Pac. 457.) 8. Dismissal by plaintiff. — Statutes construed.— In an action for damages for personal injuries, the witnesses for the defendant testified out of order awaiting the appearance of plaintiff's witnesses. Plaintiff was unable to se- cure the attendance of his witnesses, and the court, not being inclined to postpone the case for the purpose of obtaining their testimony, the plaintiff made a motion for a voluntary nonsuit. Defendant opposed the motion, and the court overruled the same. Defendant then moved for judgment, which was granted by the court. After motion for new trial was made and denied, judg- ment was entered dismissing the action, and the plaintiff appealed. Upon the appeal the court held that the plaintiff was entitled as a matter of right under the statute to an order dismissing the action, there being no set-off or coun- terclaim: McPherson v. Seattle Electric Co., 53 Wash. 358, 101 Pac. 1084, 1085. Ballinger's Code and Stats. § 5085 is as follows: "An action may be dismissed, or a judgment of nonsuit entered in the following cases: (1) By the plaintiff himself, at any time, either in term time or in vacation, before the jury retire to consider their verdict, unless set-off be interposed as a defense, or unless the defendant sets up a counter- claim to the specific property or thing which is the subject-matter of the action," etc. For right of plaintiff to a voluntary nonsuit under this statute, see Fiske v. Tacoma Smelting Co., 49 Wash. 514, 95 Pac. 1082; McPherson v. Seattle Electric Co., 53 Wash. 358, 101 Pac. 1084, 1085. 9. Rule under Oregon practice. — A motion for nonsuit is not waived after denial of the same by the introduction of evidence on behalf of the moving party: Dryden v. Pelton-Armstrong Co., 53 Ore. 418, 101 Pac. 190. 10. Law of the place governs on mo- tion for nonsuit. — A motion for judg- ment of nonsuit is a branch of pro- cedure, and the law of the place of trial must govern in all matters relating to this remedy: Dryden v. Pelton-Arm- strong Co., 53 Ore. 418, 101 Pac. 190, 192. 11. Dismissal as to one or more joint debtors. — Under the Missouri statute, one suing on a joint contract may dis- miss as to one defendant, and proceed so as to show single liability of the other: Reifschneider v. Beck (Mo. App.), 129 S. W. 232. 12. When defendant waives error in denying his motion. — An error in deny- ing a motion for nonsuit is waived where defendant did not rest his case after denial of the motion, but intro- duced evidence in his own behalf sup- plying the defects in plaintiff's proof: Lyon v. United Moderns, 148 Cal. 470, 83 Pac. 804, 113 Am. St. Rep. 291, 4 L. R. A. (N. S.) 247, 7 Am. & Eng. Ann. Cas. 672. See Scrivani v. Dondero, 128 Cal. 31, 32, 60 Pac. 463, and other cases cited in Lyon v. United Moderns, supra. Ch. CXLL] FINDINGS, ETC.— FORMS. 1871 CHAPTER CXLI. Findings and Judgment. Page 8 493. Findings of fact and conclusions of law 1871 Form No. 1181. Findings of fact and conclusions of law 1871 Form No. 1182. Additional findings. — Action to quiet title, and for value of rents and profits, and for resti- tution 1872 $ 494. Judgments 1874 Form No. 1183. Judgment for plaintiff by the court 1874 Form No. 1184. Judgment for defendant. (Common form.).. 1875 Form No. 1185. Entry by clerk 1875 Form No. 1186. Judgment by the court on verdict for the plaintiff 1875 Form No. 1187. Judgment for plaintiff on verdict. (Entry by clerk.) 1876 Form No. 1188. Judgment of dismissal. (Entry by clerk.) 1876 Form No. 1189. Judgment of default. (Entry by clerk.) 1877 Form No. 1190. Notice of motion for judgment on the plead- ings 1877 Form No. 1191. Order sustaining demurrer without leave to amend, and granting motion for judgment on the pleadings 1878 Form No. 1192. Consent of plaintiff to reduction of judgment 1878 Form No. 1193. Nunc pro tunc order reducing judgment 1879 Form No. 1194. Satisfaction of judgment for costs 1879 Form No. 1195. Amended judgment for defendant 1880 Form No. 1196. Order of sheriff's sale of real estate under judgment 1880 § 495. Confession of judgment without action 1881 Form No. 1197. Confession of judgment 1881 Form No. 1198. Entry of judgment confessed. (Annexed to the foregoing.) 1882 | 496. Annotations 1 882 §493. FINDINGS OF FACT AND CONCLUSIONS OF LAW. FORM No. 1181 — Findings of fact and conclusions of law. (In County of Glenn v. Klemmer, 153 Cal. 211; 94 Pac. 894.) [Title of court and cause.] Findings of fact. The above-entitled cause having been submitted to the court upon a stipulation by the respective parties as to the facts, and the court 1872 FINDINGS AND JUDGMENT. [Tit. XVII. having considerel the same, now, in accordance with said stipula- tion, the court finds the facts as follows: 1. That all the allegations of plaintiff's complaint on file herein are true. 2. That the claims referred to in said complaint, and each and all of them, are not for work and labor done or performed upon roads and bridges, or roads or bridges, which have been destroyed or rendered impassable by flood or fire in said road district No. 1, of the county of Glenn. Conclusions of law. From the foregoing facts the court legally concludes: That the plaintiff is entitled to a decree perpetually enjoining and restraining defendant, L. J. Klemmer, as treasurer of the said county of Glenn, from paying any and all of said claims, and that said decree also enjoin and restrain intervener, Hochheimer & Co., from enforcing or collecting said claims or any of them from the plaintiff. That plaintiff is entitled to its costs herein incurred or expended. Let a decree be entered accordingly. John F. Ellison, Judge of Superior Court. FORM No. 1182 — Additional findings. — Action to quiet title, and for value of rents and profits, and for restitution. (In Gage v. Gunther, 136 Cal. 338; 68 Pac. 710; 89 Am. St. Rep. 141.) 1 [Title of court and cause.] The above-entitled cause having already been heard upon and sub- mitted for decision of the issues raised by the cross-complaint of defendant, 0. H. Newman, and the answer of plaintiff thereto, and the court having heretofore made and filed its findings of fact and conclusions of law upon said issues, and it having been stipulated by all the parties to said action, in open court, upon the hearing of said cause, that the United States patent issued to said plaintiff, Matthew Gage, on April 21, 1896, for section 30, township 2 south of range 4 west of San Bernardino base and meridian, be considered as introduced in evidence, and all of said parties having, after the filing of the findings hereinabove mentioned, entered into, signed, and filed with the clerk of said court a stipulation in writing, i For the complaint and decree in this action, see ch. LIT, forms Nos. 430, 442. Ch. CXLI.] FINDINGS, ETC.— FORMS. 1873 whereby they stipulated and agreed that the whole of said cause, including all issues raised by the pleadings therein, both on its legal side and on its equitable side, be considered as submitted to the court upon the evidence theretofore introduced in said cause for deter- mination and decision, without further hearing or introduction of evidence, and that the legal branch of said cause might be decided by the court sitting without a jury, and that said decision of the legal branch of said cause might be made without any findings of fact other than such as had theretofore been made and filed concern- ing any allegation appearing both in the answer of said defendant, 0. H. Newman, the complaint of plaintiff, and in the cross-complaint of said defendant, 0. H. Newman, filed with said answer; and the plaintiff having waived all claim to damages against said defendant : Now, after due deliberation, the court finds the following facts : 1. That on the 21st day of April, 1896, the plaintiff, Matthew Gage, was, and ever since has been, and now is, the absolute owner of, seized in fee of, and entitled to the possession of, that certain tract and tracts of land situated in the county of Riverside, and state of California, and described as follows, to wit: [Here follows de- scription.] That it is not true that the title under which the plaintiff claims said land is of no validity, or that whatever paper title said plaintiff may have in said land is held in trust for the defendant, 0. H. Newman. 2. That plaintiff's claim to said land is based upon a United States patent issued to said plaintiff on the 21st day of April, 1896, and that said patent was issued upon a desert-land entry made by said plaint- iff on the 1st day of March, 1882, and that said section 30 was on said 1st day of March, 1882, and ever since has been, an even section of land within the limits of a grant of land made by Congress to the Southern Pacific Railroad Company; but that said section 30 was nevertheless subject to entry and sale under the desert-land law when said plaintiff made his application to purchase the same under his desert-land application. 3. That the said patent issued as aforesaid to said plaintiff was not issued without authority of law, and was not null and void ; but that said patent was lawfully issued, and was a valid conveyance of said land to the plaintiff. 4. That while the plaintiff was and is so the absolute owner of said premises, and entitled to the possession thereof, the defendant, 0. H. ]£74 FINDINGS AND JUDGMENT. [Tit. XVIL Newman, has entered into possession of said premises without right, title, or license from the plaintiff, and wrongfully withholds the pos- session of the same from the plaintiff, and still continues to withhold possession from plaintiff. Conclusions of Law. As conclusions of law from the foregoing facts the court finds: That the plaintiff is entitled to judgment against the defendant, 0. H. Newman, for the recovery of possession of the real property described in the complaint of said plaintiff, and that a writ of possession issue from this court removing said defendant, 0. H. Newman, from said land and restoring plaintiff to the possession thereof. Let judgment be entered in accordance with these findings, and with the findings heretofore made and filed herein. Dated July 17, 1889. J. S. Noyes, Judge. §494. JUDGMENTS. FORM No. 1183 — Judgment for plaintiff by the court. [Title of court and cause.] This cause came on regularly for trial, on the day of , 19 , appearing as counsel for the plaintiff, and for the defendant. A trial by jury having been expressly waived by the counsel for the respective parties, the cause was tried before the court sitting without a jury; whereupon witnesses on the part of the plaintiff and defendant were sworn and examined, and, the evidence being closed, the cause was submitted to the court for con- sideration and decision, and, after due deliberation thereon, the court delivers and files its findings and decision in writing, and orders that judgment be entered in accordance therewith. "Where- fore, by reason of the law and the findings and decision aforesaid : It is ordered, adjudged, and decreed, that the plaintiff, , do have and recover of and from the defendant, , the sum of $ , together with plaintiff's costs and disbursements incurred in this action, amounting to the sum of $ Judgment rendered this day of , 19 S. T., Judge. Ch. CXLL] JUDGMENTS, ETC.— FORMS. 1875 FORM No. 1184 — Judgment for defendant. (Common form.) [Title of court and cause.] The above-entitled action coming on regularly for hearing on this day of , 19 , appearing for plaintiff, and appearing for defendant, and evidence having been introduced by each of the respective parties, and said cause having been submitted for decision, and the court, being fully advised, having rendered its findings of fact and conclusions of law herein, wherein judgment is ordered in favor of the defendant and against the plaintiff: Now, therefore, by reason of the law and the findings aforesaid: It is ordered, adjudged, and decreed, that the plaintiff take noth- ing by this action, and that defendant have judgment for his costs herein, taxed at $ [Date of rendition.] S. T., Judge. [Entry.] FORM No. 1185— Entry by clerk. [Proceed as in either of foregoing forms, as the judgment may be, to the conclusion.] Judgment rendered this day of , 19 . [Seal.] , Clerk. [Entry.] By , Deputy Clerk. FORM No. 1186 — Judgment by the court on verdict for the plaintiff. (In Braly v. Fresno City R. Co., 9 Cal. App. 417; 99 Pac. 400.) [Title of court and cause.] This action came on regularly for trial. The said parties appeared by their attorneys, Messrs. L. L. Cory and M. K. Harris, counsel for plaintiff, and Frank H. Short, F. E. Cook, and Everts & Ewing, counsel for defendant. A jury of twelve persons were regularly impaneled and sworn to try said action. "Witnesses on the part of plaintiff and defendant were sworn and examined. After hearing the evidence, the arguments of counsel, and the instructions of the court, the jury retired to consider their verdict, and subsequently returned into court, and, being called, answered to their names and said: "We, the jury in the above-entitled cause, find for the plaint- iff, and assess his damages at the sum of $5,000. F. L. Bagley, Foreman." Wherefore, by verdict of the law, and by reason of the premises 1876 FINDINGS AND JUDGMENT. [Tit. XVII. aforesaid, it is ordered, adjudged, and decreed, that plaintiff, J. M. Braly, do have and recover from defendant, Fresno City Railway Company, a corporation, the sum of $5,000, and also said plaintiff do have and recover from said defendant his costs and disburse- ments incurred in this action, amounting to the sum of $98.70. Dated April 12, 1907. George E. Church, Judge of Superior Court. [Endorsements of filing and recording.] FORM No. 1187 — Judgment for plaintiff on verdict. (Entry by clerk.) (In Schneider v. Market Street R. Co., 134 Cal. 482; 66 Pac. 734.) [Title of court and cause.] This cause came on regularly for trial, "William J. Herrin, Esq., appearing as counsel for the plaintiff, and W. H. L. Barnes, Esq., for the defendant. Thereupon, a jury of twelve persons were duly selected, impaneled, and sworn to try said cause; and witnesses on the part of the plaintiff and defendant were duly sworn and exam- ined. After hearing the evidence, the arguments of counsel, and the instructions of the court, the cause was submitted to the jury, who retired to deliberate upon their verdict, and subsequently returned into court, and, being called, all answered to their names, and then rendered the following verdict, which was accepted by the court and entered on the minutes, as follows : [Here follows verdict of jury as in form No. 1186.] Wherefore, by virtue of the law, and by reason of the premises aforesaid : It is ordered, adjudged, and decreed, that the plaintiff, , have and recover from the defendant, , the sum of $ , with interest thereon at the rate of per cent per annum from the date hereof until paid, together with plaintiff's costs and dis- bursements incurred in this action, amounting to the sum of $ Judgment rendered this day of , 19 . [Seal.] , Clerk. By , Deputy Clerk. FORM No. 1188— Judgment of dismissal. (Entry by clerk.) [Title of court and cause.] On application of the plaintiff, and upon payment by him of all costs, and no counterclaim having been made, or affirmative relief sought by cross-complaint or answer of the defendant, a request for Ch. CXLI.] JUDGMENTS. ETC.— FORMS. 1877 dismissal of this cause having been duly entered in the register of actions in the office of the clerk of this court, said cause is therefore hereby dismissed. Judgment entered this day of , 19 . [Seal.] , Clerk. By , Deputy Clerk. FORM No. 1189— Judgment of default. (Entry by clerk.) [Title of court and cause.] In this cause, defendant, , having been regularly served with process, and having failed to appear and answer the plaintiff's complaint, and the time for answering having expired, and the default of the defendant having been duly entered according to law, upon application of the plaintiff to the clerk, judgment is hereby entered against defendant in accordance with the prayer of said complaint. Wherefore, by virtue of the law and by reason of the premises aforesaid: It is ordered, adjudged, and decreed, that plaintiff have and recover of and from defendant the sum of $ , with interest thereon at the rate of per cent per annum from the date hereof until paid, together with plaintiff's costs and disbursements incurred in said action, amounting to the sum of $ , and that plaintiff have execution therefor. Judgment rendered , 19 . [Seal.] , Clerk. By , Deputy Clerk. FORM No. 1190 — Notice of motion for judgment on the pleadings. (In Levy v. Lyon, 153 Cal. 213; 94 Pac. 881.) [Title of court and cause.] To M. J. Lyon, defendant above named, and Milton L. Schmitt, his attorney: Please take notice, that the plaintiff will on Monday, January 29, 1906, at the above-named court, in the courthouse at San Jose, Cali- fornia, in department No. 2 thereof, at the hour of 10 o'clock A. M. of said day, or as soon thereafter as counsel can be heard, move the above-named court for judgment on the pleadings in said action, on the ground that the answer and cross-complaint filed therein are sham, frivolous, and wholly insufficient to constitute a defense to the Jury's PL— 119. L818 FINDINGS AND JUDGMENT. [Tit. XVII said action, and wholly barren of any equities or claims of right in the defendant to entitle him to the relief sought, or to any equitable, legal, or other relief whatsoever. Said motion will be based upon the pleadings on file in the action. E. M. Rosenthal, Attorney for plaintiff. FORM No. 1191 — Order sustaining demurrer without leave to amend, and granting motion for judgment on the pleadings. (In Levy v. Lyon, 153 Cal. 213; 94 Pac. 881.) [Title of court and cause.] This cause coming on regularly for hearing at this time, after argument by the respective attorneys, and the court being fully advised in the premises: It is ordered, that the demurrers to the answer and cross-complaint be and the same are hereby sustained without leave to amend. It is further ordered by the court, that plaintiff's motion for judgment on the pleadings be and the same is hereby granted. [Date.] M. H. Hyland, Judge. FORM No. 1192 — Consent of plaintiff to reduction of judgment. (In O'Rourke v. Finch, 9 Cal. App. 324; 99 Pac. 392.) [Title of court and cause.] To defendants herein, and their attorneys, Messrs. Lynch & Drury : You and each of you will please take notice, that judgment having been rendered in this cause for the sum of $1,000 in favor of said plaintiff and against you, the said defendants, and that the said court, on the 2d day of December, 1907, upon the motion for a new trial herein, after the same was argued and submitted for decision, rendered its decision on said motion, and granted the same, unless the plaintiff, within twenty days from the rendering of said decision, consent and agree to the reduction of said judgment from said sum of $1,000 to the sum of $750: Now come the said plaintiff and his attorneys, "W. H. Morrissey and Don. R. Jacks, within said twenty days after the date of the order aforesaid, to wit, on this, the 12th Ch. CXLL] JUDGMENTS, ETC.— FORMS. 1879 day of December, 1907, and consent to and agree that said judgment be reduced from the sum of $1,000 to the sum of $750. John H. J. O'Rourke, Plaintiff, By Frank J. O'Rourke, his guardian ad litem. W. H. Morrissey, Don. R. Jacks, Attorneys for plaintiff. FORM No. 1193 — Nunc pro tunc order reducing judgment. (In O'Rourke v. Finch, 9 Cal. App. 324; 99 Pac. 392.) [Title of court and cause.] This court having, on the 2d day of December, 1907, made and entered its order on defendants' motion for a new trial, to the effect that a new trial in this action would be granted, unless plaintiff within twenty days from the entry of said order consent that the verdict and judgment herein be reduced from the sum of $1,000, for which said judgment was heretofore rendered and entered, to the sum of $750, in which event an order would be made denying said motion for a new trial, and it appearing that plaintiff, by a written consent filed in open court on the 12th day of December, 1907, has agreed to said reduction of said verdict and judgment to said sum of $750 : It is therefore hereby ordered, that the verdict and judgment in the above-entitled action heretofore entered for the sum of $1,000 be and the same is hereby reduced to the sum of $750. Dated February 4, 1908. This order to be entered nunc pro tunc as of December 12, 1907. T . TT John Hunt, Judge of Superior Court. FORM No. 1194 — Satisfaction of judgment for costs. [Title of court and cause.] Full satisfaction and payment is hereby acknowledged of that certain judgment made and rendered in and by the above-named court in the above-entitled action, and duly entered in book of judgments at page , on the day of , 19 , in favor of plaintiff therein and against defendants, for the sum of $ plaintiff's costs incurred in said action; and the clerk of said court is hereby authorized and directed to enter the satisfaction thereof in said action. [Date.] D. E., Plaintiff. 1880 FINDINGS AND JUDGMENT. [Tit. XVII. FORM No. 1195— Amended judgment for defendant. (In Burkett v. Griffith, 90 Cal. 532; 27 Pac. 527; 25 Am. St. Rep. 151; 13 L. R. A. 707.) [Title of court and cause.] In this action the defendant having appeared and demurred to the plaintiff's complaint herein, and the issue of law thereto arising having been duly submitted to the court by the respective parties plaintiff and defendant, and the court being fully advised in the premises, did heretofore sustain said demurrer, and refused leave to plaintiff to amend his complaint, and the defendant having hereto- fore applied to the clerk of the court to enter judgment herein, and said clerk having, pursuant to such application, entered a judgment herein against the defendant for the costs in this action, and said clerk having failed to make an entry of judgment with reference to the disposition of the case itself, and the defendant being entitled to a judgment dismissing said action, as well as for costs herein : It is therefore ordered, adjudged, and decreed, that the judgment heretofore entered in said cause be amended so as to read as follows : It is by the court further ordered, adjudged, and decreed, that said action be and the same is hereby dismissed, and that defendant do have and recover from plaintiff his, defendant's, costs and disburse- ments incurred in this action, amounting to the sum of $5.70. [Date.] "Walter Van Dyke, Judge of Superior Court. FORM No. 1196 — Order of sheriff's sale of real estate under judgment. [Title of court and cause.] The people of the state of , to the sheriff of said county, greeting : Whereas, , on the day of , 19 , recovered a judgment against in an action wherein the said was plaintiff, and the said was defendant, which said judgment is recorded in judgment book , of the said [superior] court, on page , and which is in the words and figures fol- lowing, to wit: [Here copy the judgment which provides for such sale.] Now, therefore, you, the said sheriff of the county of , are hereby commanded and required to proceed to give notice for sale, and to sell, the premises hereinbefore described, for gold coin of the United States, and to apply the proceeds of such sale to the Ch. CXLI.] JUDGMENT WITHOUT ACTION.— FORMS. 1881 satisfaction of said judgment, with the interest thereon and costs, together with your fees, and to make and file your report of such sale to the clerk of the said superior court within days from the date hereof, and to do all things according to the terms and requirements of the said judgment, and the provisions of the statute in such case made and provided. Witness the Hon. , judge of the superior court of the county of , state of , and the seal of said court, this day of , 19 . [Seal.] , Clerk. By , Deputy Clerk. [Endorsements on the foregoing writ :] Clerk 's fees, as follows : This writ $ Docket and filing $ Satisfaction $ Total clerk's fees on writ.$ Attest: , Clerk. By , Deputy Clerk. [Filing endorsement.] Form of judgment in an action brought by an assignee to determine the rights of the plaintiff in and to a large amount of personal property and notes mort- gaged and pledged by his assignor: Mowry v. First Nat. Bank, 54 Wis. 43, 11 N. W. 247. §495. CONFESSION OF JUDGMENT WITHOUT ACTION. FORM No. 1197 — Confession of judgment. [Title of court and cause.] I, John Doe, defendant in the above-entitled action, do hereby confess judgment herein in favor of the plaintiff, Richard Roe, for the sum of $ , and I hereby authorize entry of judgment herein for said amount in favor of said plaintiff. I hereby state that said sum of $ , for which judgment is confessed herein, is justly due [or justly to become due] from me to the said Richard Roe, the facts concerning which are as follows : [Here state facts briefly to show that the sum confessed is justly due or to become due.] [If the confession of judgment be for the purpose of securing the plaint- iff against a contingent liability, add: "And I further state that this confession of judgment is for the purpose of securing the plaintiff against a contingent liability, and that the facts thereof are as follows : (Here state concisely the facts constituting such liabil- 1882 FINDINGS AND JUDGMENT. [Tit. XVII. ity) ; and further, that the sum confessed therefor does not exceed the amount of said contingent liability."] [Verification.] [Signature.] FORM No. 1198 — Entry of judgment confessed. (Annexed to the foregoing.) [Title of court and cause.] On filing the within and foregoing statement, confession, and veri- fication [or affidavit], wherein judgment is authorized and consented to be entered in favor of plaintiff herein for the sum of $ : It is therefore ordered and adjudged, that the plaintiff do have and recover of and from the defendant herein the sum of $ , together with $ , costs herein. [Date.] , Clerk. By , Deputy. For form of judgment on the pleadings in an action to set aside and vacate a judgment, see Randall v. Fox (Ariz.), 108 Pac. 249, 250. For form of final judgment in an action to recover for injuries alleged to have been sustained by plaintiff while in the defendant's employ, and through defend- ant's negligence, the same affirmed on appeal, and held not a judgment of non- suit, see McGuire v. Bryant etc. Co., 53 Wash. 425, 102 Pac. 237, 238. §496. ANNOTATIONS. — Findings and judgment. 1. Findings. — As to averments not denied. 2, 3. General rule as to findings on separate counts. 4. Finding as to truth of allegations generally. 5. Remedy where findings are imperfect. 6. Verdict. — Defective statement of cause cured by. 7. Presumptions after verdict. 8. On a motion for a directed verdict. 9. Judgment generally. — Definition. 10. Iowa statutes relating to entry of judgment. 11. Irregular entry of decree. 12. Personal judgment not valid against non-resident. 13. Judgment upon issue of law where unliquidated damages are claimed. 14. Joint judgment against defendants guilty of tort. 15. Motion in arrest of judgment. 16. Motion in arrest — When defendant may invoke. 17. Motion in arrest for defect in verdict. 18. A motion for judgment non obstante veredicto. 19. Motion to vacate for error of fact. — Missouri practice. 20. Motion to vacate a judgment, charging the fact of death. 21. Judgment upon the pleadings. 22, 23. Motion not substitute for demurrer. 24, 25. Motion admits truth of pleas. 26. Motion proper when denials are only of conclusions. 27. Relation of inconsistent defenses to the motion. 28. Arizona practice. 29. Waiver of motion. 1. FINDINGS. — As to averments not a material fact is alleged, and the an- denied. — Where, in a verified complaint, swer fails to deny the same, the truth Ch. CXLI .] ANNOTATIONS. 188:j of such an averment is admitted, and no finding on the subject is necessary: Los Angeles P. B. Co. v. Higgins, 8 Cal. App. 514, 97 Pac. 414, 420. 2. General rule as to findings on sep- arate counts. — As a general rule, where there are several counts in a petition, each stating a different cause of action, there should be a separate finding on each: Cramer v. Barmon, 193 Mo. 329, 91 S. W. 103S; Brownell v. Pacific R. Co., 47 Mo. 239; Clark v. Hannibal etc. R. Co., 36 Mo. 202, 212; Russell v. Rail- road Co., 154 Mo. 428, 55 S. W. 454. 3. One finding, however, is sufficient where the several counts relate to the same transaction: Southern Missouri etc. R. Co. v. Wyatt, 223 Mo. 347, 122 S. W. 688; State v. Pitts, 58 Mo. 556; State v. Jennings, 81 Mo. 185, 51 Am. Rep. 236; State v. Bean, 21 Mo. 267; State v. McCue, 39 Mo. 112. 4. Finding as to truth of allegations generally. — A finding that all of the allegations in a particular paragraph or pleading are true or untrue is sufficient: Heinrich v. Heinrich, 2 Cal. App. 479, 482, 84 Pac. 3?6, (by wife against hus- band, to enforce a trust). See, also, Gale v. Bradbury, 116 Cal. 39, 40, 47 Pac. 778, (for money judgment) ; Wil- liams v. Hall, 79 Cal. 606, 607, 21 Pac. ■965, (upon contract for the payment of money). 5. Remedy where findings are imper- fect. — An imperlect verdict or finding, or a neglect to find on all the • issues, ■can be taken advantage of only by motion in arrest of judgment: Wells v. Adams, 88 Mo. App. 215, 228; Grier v. Strother, 111 Mo. App. 386, 85 S. W. 976; Jonesboro etc. R. Co. v. United Iron Works Co., 117 Mo. App. 167, 94 S. W. 726; Southern Missouri etc. R. Co. v. Wyatt, 223 Mo. 347, 122 S. W. 688, 691. 6. VERDICT. — Defective statement of cause cured by. — A defective statement of a cause of action may be good after verdict: H. A. Johnson & Co. v. Spring- field Ice etc. Co., 143 Mo. App. 441, 127 S. W. 692. 7. Presumptions after verdict. — Every reasonable presumption and intendment should be indulged from the facts al- leged in the petition, after verdict, and in aid thereof: Thomasson v. Mercantile «tc. I. Co., 217 Mo. 485, 116 S. W. 1092, 1096. For additional authorities as to the foregoing principle, see chapter VIII, an- notation paragraphs 18-21. 8. On a motion for a directed verdict, the court is justified in denying the same if a substantial conflict exists in the evidence on any material issue: Gooler v. Eidness (N. Dak.), 121 N. W. 83, 85. 9. JUDGMENT GEN ERALLY.— Defi- nition. — Primarily, a "judgment," ex- cept where the signification of the word has been changed by statute, is the decision pronounced by the court upon the matter contained in the record. Thus it has frequently been held that there is a difference between a judg- ment and the entry thereof. The ren- dition of a judgment is a judicial act, and the entry upon the record is purely ministerial. Save for some statute, entry of record is not indispensable to a judgment; but it is just as clear that a judgment is essential to the validity of an entry. Under the old practice, and in the absence of statute, it seems that there was a radical difference between the entries of judgments and decrees. A "judgment" can speak but by the record, while a "decree" takes effect immediately after being pronounced by the court. Its enrolment adds nothing to its force or its competency as evi- dence: Burke v. Burke, 142 Iowa 206, 119 N. W. 129, 131, citing Freeman on Judgments, § 38; Bates v. Delavan, 5 Paige 303; Winans v. Dunham, 5 Wend. 47; Butler v. Lee, 3 Keyes, (42 N. Y.) 73; Lynch v. Rome Co., 42 Barb. 591. 10. Iowa statutes relating to entry of Judgment. — A judgment rendered and entered in vacation without consent of the parties or an order of court entered during term time is void. But judg- ments and decrees ordered and rendered during term time may be entered in vacation: Burke v. Burke, 142 Iowa 206, 119 N. W. 129, citing and construing Iowa code §§ 242, 247, and further citing Traer v. Whitman, 56 Iowa 443, 9 N. W. 339; Smith v. Cumins, 52 Iowa 143, 2 N. W. 1041. 11. Irregular entry of decree The remedy is by motion, not by objection made on appeal, where a decree is ir- regularly entered, Inasmuch as that fact does not render the decree void: Burke v. Burke, 142 Iowa 206, 119 N. W. 129, 131, citing to the same effect Collins v! Chantland, 48 Iowa 241; State v. Hen- 1884 FINDINGS AND JUDGMENT. [Tit. XV1L derson, 164 Mo. 347, 64 S .W. 138, 86 Am. St. Rep. 618. 12. Personal judgment is not valid against non-resident. — Even when cita- tion and notice by publication in the mode provided by statute is given to a non-resident defendant who does not appear, no valid personal judgment can be rendered against him. In such case, if the non-resident defendant has prop- erty within the territorial jurisdiction of the court, the same may be reached by attachment and proper notice by publication. The court so far acquires jurisdiction of the property, as a pro- ceedings in rem, as to ascertain the obligation of the defendant, and to ap- ply the proceeds of the attached prop- erty in satisfaction of the same: Pen- noyer v. Neff, 95 U. S. 714, 24 L. ed. 565, cited in Smith v. Montoya, 3 N. Mex. 40, 1 Pac. 175. 13. Judgment upon Issue of law where unliquidated damages are claimed. — As to whether the demurrer, for its own purpose, admits the amount of damages alleged in the bill arising from the al- leged violation of an agreement; held, that the Missouri statute (Rev. Stats. 1899, §§ 774-i (6, Ann. Stats. 1906, p. 751) contemplates that if judgment be rendered on demurrer, on an issue of law, where the damages can not be ascertained by the written instrument sued on, but remain unliquidated, in- quiry should be had into the amount of the damages: Donovan v. Boeck, 217 Mo. 70, 116 S. W. 443, 546, citing Darrah v. Steamboat Lightfoot, 15 Mo. 187; McKenzie v. Mathews, 59 Mo. 99. 14. Joint judgment against defendants guilty of tort. — In actions against two or more persons for a single tort, there can not be two verdicts for different sums against different defendants in the same trial. There can be but one ver- dict for a single sum against all who are found guilty of the tort. All who are guilty at all are liable for the full amount of the actual damages arising from the injuries inflicted, regardless of the degree of culpability: Marriott v. Williams, 152 Cal. 705, 711, 93 Pac. 875, 125 Am. St. Rep. 87; McCool v. Ma- honey, 54 Cal. 491; Nichols v. Dunphy, 58 Cal. 605; Everroad v. Gabbert, 83 Ind. 489; Huddleston v. Borough, 111 Pa. St. 110, 2 Atl. 200. 15. Motion in arrest of Judgment. — The office of a motion in arrest of judg- ment is to direct the attention of the court to errors apparent on the face of the record proper: State v. Goehler, 193 Mo. 177, 181, 91 S. W. 947. 16. Motion in arrest. — When defendant may invoke. — A motion in arrest of judgment is a remedy which the defend- ant may invoke where the face of the petition shows plaintiff not to have a cause of action; this remedy is the counterpart existing in favor of the de- fendant of the remedy by motion for judgment non obstante veredicto, which is expressly one allowed to the plaint- iff: Shearer v. Guardian Trust Co., 136 Mo. App. 229, 116 S. W. 456, 457. 17. Motion in arrest for defect in ver- dict. — Where no motion in arrest of judgment is made for defect in the ver- dict, such defect can not be considered as error on appeal: Finney v. State to use, etc., 9 Mo. 635; Stout v. Calver, 6 Mo. 256, 35 Am. Dec. 438; State v. De- Witt, 186 Mo. 61, 6S, 84 S. W. 956; Southern Missouri etc. R. Co. v. Wyatt„ 223 Mo. 347, 122 S. W. 68S, 691, (to con- demn right of way for railroad). 18. A motion for judgment non ob- stante veredicto is not a motion al- lowed the defendant in a cause. In point of legal practice, it is a motion which a plaintiff may make where, on account of defendant's answer, he, de- fendant, is not entitled to a judgment in his favor. It is only proper where, upon the defendant's own showing, in any way of putting it, he can have no merits, nor can the issue joined thereon be found for him. Where the awarding of a repleader can not mend the case, the court for the sake of the plaintiff will at once give judgment non obstante veredicto: Shearer v. Guardian Trust Co., 136 Mo. App. 229, 116 S. W. 456, 457, and authorities cited, includ- ing Bellows v. Shannon, 2 Hill (N. Y.> 86; Bradshaw v. Hedge, 10 Iowa 402; Williams v. Anderson, 9 Minn. 50 (Gil. 39) ; Friendly v. Lee, 20 Ore. 202, 25 Pac. 396; Hurt v. Ford, 142 Mo. 283, 44 S. W. 228, 41 L. R. A. 823. 19. Motion to vacate for error of fact. — Missouri practice. — In the state of Missouri, a motion to vacate a judg- ment for error of fact, and not for patent error of record, supported by evidence dehors the record, takes the place of the common-law writ of error coram nobis, and is in the nature of an indictment and direct attack upon Ch. CXLI.] ANNOTATIONS. 1885 the judgment of the court committing the error. A judgment upon such a motion is within it.self a final judgment, from which an appeal will lie. A trial court will not be compelled by mandate where the remedy is open by way of appeal from an order overruling the motion to vacate a judgment of dis- missal, voidable only: State v. Riley, 219 Mo. 667, 118 S. W. 647, 656. 20. Motion to vacate a judgment, charging the fact of death, and sup- ported by proof, takes the plXce of the common-law writ of error coram nobis: State v. Riley, 219 Mo. 667, US S. W. 647, 651. 21. Judgment upon the pleadings. — As a general proposition, a motion for judgment on the pleadings, based on the facts thereby established, can not be sustained except where, upon such facts, a judgment different from that pronounced could not be rendered, not- withstanding any evidence which might be produced; or, in other words, such a motion can not be sustained unless, under the admitted facts, the moving party is entitled to judgment, without regard to what the findings might be on the facts upon which issue is joined. Therefore, in determining the rights of the defendant to the judgment given him, the real question to determine is the sufficiency of the admitted facts to warrant the judgment rendered and the materiality of those on which issue was joined. A motion for judgment on the pleadings can not prevail unless, on facts thereby established, the court, as a matter of law, can pronounce a judg- ment on the merits; that is, deter- mine the rights of the parties to the subject-matter of the controversy, and render a judgment In relation thereto which is final between the parties. Such a motion can not, under the guise of a motion for judgment on the plead- ings, be substituted for some other plea: Mills v. Hart, 24 Colo. 505, 52 Pac. 680, 65 Am. St. Rep. 241, citing Rice v. Bush, 16 Colo. 484, 27 Pac. 720; Harris v. Harris, 9 Colo. App. 211, 47 Pac. 841, approved in Hoover v. Horn, 45 Colo. 288, 101 Pac. 55, 56, and in Roberts v. Colorado Springs etc. R. Co., 45 Colo. 188, 101 Pac. 59, 61. 22. Motion not substitute for de- murrer. — A motion for judgment upon the pleadings can not be made to take the place of a demurrer or other plea: Roberts -f. Colorado Springs etc. R. Co., 45 Colo. 188, 101 Pac. 59, 61; Shuler v. Allan, 45 Colo. 372, 101 Pac. 350, 352. 23. A motion for judgment on the pleadings can not be converted into a general demurrer: Schuler v. Allan, 45- Colo. 372, 101 Pac. 350, 352, citing Har- ris v. Harris. 9 Colo. App. 211, 47 Pac. 841; Mills v. Hart, 24 Colo. 505, 52 Pac. 680, 65 Am. St. Rep. 241; Rice v. Bush, 16 Colo. 484, 27 Pac. 720; Cornett v. Smith, 15 Colo. App. 53, 60 Pac. 953; Hoover v. Horn, 45 Colo. 288, 101 Pac. 55. 24. Motion admits truth of pleas. — A motion for judgment upon the pleadings admits that the statements in the pleas are true: Roberts v. Colorado Springs etc. R. Co., 45 Colo. 188, 101 Pac. 59, 61. 25. When a party moves for judg- ment on the pleadings, he not only, for the purpose of his motion, admits the truth of all the allegations of his adver- sary, but also must be deemed to adopt all his adversaries' denials: Phenix v. Bijelich, 30 Nev. 257, 95 Pac. 351, 353, citing Walling v. Bown, 9 Idaho 1S4, 72 Pac. 960; Idaho P. M. Co. V. Green, 14 Idaho 294, Pac. 161, 164. 26. Motion proper when denials are only of conclusions. — A judgment on the pleadings is proper where the denials in the answer are only of conclusions, and not of the facts constituting the plaint- iff's cause of action. Denials which relate only to the effect of such facts are immaterial: Thompson v. Colvin, 53 Ore. 488, 101 Pac. 201, 202, citing Bump v. Cooper, 20 Ore. 527, 26 Pac. 848. 27. Relation of inconsistent defenses to the motion. — Qn a motion for judg- ment on the pleadings, inconsistent de- fenses can not be regarded as vitiating one another; but if a good defense is stated in the answer, it must be con- sidered as true: Hoover v. Horn, 45 Colo. 288, 101 Pac. 55; 56. 28. Arizona practice. — Judgment on the pleading is a practice recognized by the courts of Arizona: Randall v. Fox (Ariz.), 108 Pac. 249, 250, citing Miles v. McCallan, 1 Ariz. 491, 3 Pac. 610; Finley v. City of Tucson, 7 Ariz. 108, 60 Pac. 872. 29. Waiver of motion. — A motion for judgment on the pleadings is held to be waived by the defendant where he goes to trial on the merits: Sundmacher v. Lloyd, 135 Mo. App. 517, 116 S. W. 12, 13. 1886 COSTS, EXECUTIONS, AND WRITS. [Tit. XVII. CHAPTER CXLII. Costs, Executions, and Writs. Page S 497. Costs 1886 Form No. 1199. Notice requiring security for costs 1886 Form No. 1200. Notice of motion to stay proceedings until security for costs be given 1887 Form No. 1201. Memorandum of costs and disbursements on part of plaintiff [or defendant] 1887 Form No. 1202. Verification of the foregoing 1887 Form No. 1203. Acknowledgment of service of a copy of mem- orandum of costs. (Endorsed upon mem- orandum of costs.) 18SS' § 498. Writs of execution, assistance, etc 1888 Form No. 1204. Writ of execution on judgment 1888 Form No. 1205. Writ of execution. (Corporation as judgment debtor.) 1889 Form No. 1206. Sheriff's return of execution unsatisfied. (An- nexed to foregoing writ.) 1890 Form No. 1207. Sheriff's return of execution unsatisfied. — Property claimed by third person 1890 Form No. 1208. Writ of execution for fees and costs 1891 Form No. 1209. Writ of execution. (On certified abstract of judgment of justice's court.) 1892 Form No. 1210. Writ of execution for deficiency on fore- closure 1893 Form No. 1211. Execution against real or personal property in the hands of an executor, etc 1894 Form No. 1212. Execution upon writ of restitution 1895 Form No. 1213. Writ of execution after remittitur filed 1896 Form No. 1214. Writ of assistance 1897 § 499. Elements of petition for an order requiring debtor of a judgment debtor to appear and answer 1898 § 500. Annotations 1899 § 497. COSTS. FORM No. 1199 — Notice requiring security for costs. [Title of court and cause.] To A. B., Attorney for plaintiff : Please take notice, that the defendant hereby demands and re- quires security from E. F., plaintiff, who is a non-resident of this •Ch. CXLII.] COSTS— FORMS. 1887 state [or is a foreign corporation], for defendant's costs and charges in this action which may be awarded herein against the plaintiff. [Date.] C. D., Attorney for defendant. FORM No. 1200 — Notice of motion to stay proceedings until security for costs be given. [Title of court and cause.] To A. B., Attorney for plaintiff: Please take notice, that defendant will move said court at the courtroom thereof on the day of , 19 , at o'clock M., or as soon thereafter as counsel can be heard, for an order staying proceedings in this action until plaintiff give security to defendant for his costs and charges which may be awarded to him in the action. Said motion will be based on the complaint in the action, and on an affidavit, a copy of which is herewith served, and will be made on the ground that plaintiff is a non-resident of this state [or is a foreign corporation]. [Date.] C. D., Attorney for defendant. FORM No. 1201 — Memorandum of costs and disbursements on part of plaint- iff [or defendant]. [Title of court and cause.] Disbursements. Sheriff's fees $ Clerk's fees $ Witnesses' fees [here naming the witnesses and designating days of service] $ Reporter's fees $ FORM No. 1202 — Verification of the foregoing. State of County of , being duly sworn, deposes and says : That he, , is the attorney for the plaintiff [or defendant] in the above-entitled action, and, as such, is better informed relative to the above costs and dis- bursements than the plaintiff [or defendant] ; that the items in the above memorandum contained are correct, to the best of this depon- 1888 COSTS, EXECUTIONS, AND WRITS. [Tit. XVII. ent's knowledge and belief, and the said disbursements have been necessarily incurred in said action. [Signature of affiant.] [Jurat of notary or clerk.] FORM No. 1203 — Acknowledgment of service of a copy of memorandum of costs. (Endorsed upon memorandum of costs.) Due service of a copy of the within memorandum of costs is hereby admitted this day of , 19 . A. B., Attorney for [Endorsement of filing.] §498. WRITS OF EXECUTION, ASSISTANCE, ETC. FORM No. ■*204 — Writ of execution on judgment. [Title of court and cause.] The people of the state of to the sheriff of the county of , greeting: Whereas, on the day of , 19 , , plaintiff, recov- ered a judgment in the superior court in and for said county of , state aforesaid, against , defendant, for the sum of $ damages, together with $ costs and disbursements at the date of said judgment, with interest on said sum at the rate of per cent per from date of said judgment until paid, as appears to us of record ; And whereas, the judgment-roll in the action in which said judg- ment was entered is filed in the clerk's office of said court in the county of , and the said judgment was docketed in said clerk's office in said county, on the day and year first above written; and the sum of $ , as aforesaid, is at the date of this writ actually due on said judgment, together with the interest thereon as afore- said, and $ for this and other accruing costs : Now you, the said sheriff, are hereby required to make the said sums due on said judgment for damages and costs, and interest thereon as aforesaid, and accruing costs, to satisfy the said judg- ment, out of the personal property of the said debtor, ; or, if sufficient personal property of said debtor can not be found, then out of the real property in your county belonging to , the said debtor, on the day whereon said judgment was docketed in the aforesaid county, or at any time thereafter, and make return of Ch. CXLI1.J WRITS.— FORMS. 1889 this writ within days after your receipt hereof, with what you have done endorsed hereon. Witness the Hon. , judge of the superior court of the county of , state of , at the courthouse in said county of , this day of , 19 . Attest my hand and the seal of the said court, the day and year last above written. [Seal.] , Clerk. By , Deputy Clerk. [Endorsement on the foregoing writ:] Clerk's fees as follows: This writ $ Docket and filing $ Satisfaction $ Total clerk's fees on writ $ [Filing endorsement.] FORM No. 1205 — Writ of execution. (Corporation as judgment debtor.) (From the record in Nixon v. Goodwin, 3 Cal. App. 358 ; 85 Pac. 169.) [Title of court and cause.] The people of the state of California to the sheriff of the county of Placer, greeting: "Whereas, on the 5th day of June, 1901, John Dias recovered a judgment in the superior court in and for the county of Placer, state of California, against the Montauk Consolidated Gold Mining Com- pany, a corporation, for the sum of $9,150, with interest at the rate of seven per cent per annum from the date of said judgment till paid, together with $6.75 costs and disbursements at the date of said judg- ment, and accruing costs of $1, as appears of record; And whereas, the judgment-roll in the action in which said judg- ment was entered is filed in the clerk's office of said court in the county of Placer; and the said judgment was docketed in said clerk's office in the said county on the day and year first above written ; And the sum of $9,157.75, with interest at the rate aforesaid, is now, and at the date of this writ was, actually due on said judg- ment : Now you, the said sheriff, are hereby required to pay the said sums due on the said judgment, with interest as aforesaid, and eosts and 1890 COSTS, EXECUTIONS, AND WRITS. [Tit. XVII. accruing costs, to satisfy the said judgment out of the personal property of said debtor; or, if sufficient personal property of said debtor can not be found, then out of the real property in your county belonging to said debtor, Montauk Consolidated Gold Mining Com- pany, a corporation, on the date whereon said judgment was dock- eted in the said county, or at any time thereafter. And make return of this writ within sixty days after your receipt hereof, the date of which receipt you have now endorsed hereon. "Witness the Hon. J. E. Prewett, judge of said superior court in and for the county of Placer, state of California, at the courthouse in the county of Placer, this 5th day of June, 1901. Attest my hand and the seal of the said court, the day and year last above written. [Seal.] J. B. Landis, Clerk. [Return endorsed:] "Nulla bona." [See form No. 1206.] FORM No. 1206 — Sheriff's return of execution unsatisfied. (Annexed to foregoing writ.) (From the record in Nixon v. Goodwin, 3 Cal. App. 358; 85 Pac. 169.) [Venue.] I, Charles Keena, sheriff of the county of Placer, hereby certify that I received the within execution on the 5th day of June, 1901, and that, after due search and diligent inquiry, I have been unable to find any property, real or personal, belonging to the Montauk Consolidated Gold Mining Company, a corporation, upon which to levy in the said county of Placer, and I hereby return the within execution wholly unsatisfied. Dated June 11, 1901. Charles Keena, Sheriff. By William I. May, Deputy Sheriff. [Filing endorsement.] FORM No. 1207 — Sheriff's return of execution unsatisfied. — Property claimed by third person. (In Nixon v. Goodwin, 3 Cal. App. 358 ; 85 Pac. 169.) [Title of court and cause.] I hereby certify, that on the 5th day of June, 1901, I received the execution in the above-entitled action hereunto attached, issued Ch. CXLII.] WRITS.— FORMS. 1891 against the defendant for the sum of $9,150, with interest and costs, duly attested, June 5, 1901; that on the 6th day of June, 1901, I levied upon thirty-six cords of mixed oak wood upon the premises of the Montauk Consolidated Mine in El Dorado County, Cali- fornia, and in the possession of C. H. Mars; that thereafter, on said 6th day of June, 1901, upon instructions given to me by the attorneys for the plaintiff, I released said property so levied upon, the same being claimed by a third party. I further certify, that on said 6th day of June, 1901, I served upon Edward Goodwin, the superintendent of said Montauk Consolidated Gold Mining Company, a copy of said execution and a notice to the effect that the property belonging to the said defendant corporation in his hands or under his control was levied upon, and said Goodwin on said day made answer in writing certifying that he had no money or other property belonging to said defendant in his possession, a copy of which said written answer of said Goodwin is hereunto attached and hereby referred to and made a part of this return. I further certify, that, after diligent search, I am unable to find any personal property belonging to said defendant corporation in El Dorado County, California, nor have I been able to find any real property standing of record in the name of said defendant in said county, and I therefore return the attached execution wholly unsat- isfied for the reasons aforesaid. Dated June 6, 1901. A. S. Bosquit, Sheriff. FORM No. 1208 — Writ of execution for fees and costs. [Title of court and cause.] The people of the state of to the sheriff of the county of , greeting: Whereas, in a certain action pending in the superior court of the county aforesaid, wherein there is due to [here naming the officer and designating his official character] , of said , from , for fees in said cause, the sum of $ , in gold coin of the United States ; And whereas, by virtue of section 38 of an act to regulate fees in office, approved March 5, 1870, the said [officer] is authorized to 1892 COSTS, EXECUTIONS, AND WRITS. [Tit. XVII. issue execution in his own name against the party from whom fees may be due for services rendered. These presents are therefore to command you, that of the goods and chattels, if sufficient, — if not, then of the lands and tenements, — of the said , you levy and cause to be made by distress and sale, said sum of $ , in gold coin of the United States, fees due as aforesaid, together with all costs that may accrue. And of this writ make legal service and return in days. Given under my hand and seal, this day of , 19 . [Seal.] , Clerk. By , Deputy Clerk. [Endorsements on the foregoing writ:] Clerk's fees as follows : This writ $ Satisfaction $ Total $ [Filing endorsement.] FORM No. 1209 — Writ of execution. (On certified abstract of judgment of justice's court.) [Title of court and cause.] The people of the state of to the sheriff of the county of , greeting: Whereas, on the day of ■, 19 , , plaintiff, recov- ered a judgment in the court of , a justice of the peace in and for township, county of , state of , against , for the sum of $ damages, with interest at the rate of per cent per until paid, together with $ , costs and disburse- ments, at the date of said judgment, and accruing costs amounting to the sum of $ , as appears to us of record ; And whereas, a duly certified abstract of said judgment was on the day of , 19 , filed in the clerk's office of said court, in the county of , and the said judgment was docketed in said clerk's office in the said county, on the day and year last above written : And the sum of $ , with interest at , is now at the date of this writ actually due on said judgment ; Now, you, the said sheriff, are hereby required to make the said Ch. CXLII.] WRITS.— FORMS. 1893 sums due on the said judgment for damages, with interest as afore- said, and costs and accruing costs, to satisfy the said judgment, out of the personal property of the said debtor , or, if sufficient personal property of said debtor can not be found, then out of the real property in your county belonging to , the said debtor, on the day whereon said judgment was docketed in the aforesaid county, or at any time thereafter. And make return of this writ within days, with what you have done endorsed hereon. Witness the Hon. , judge of the superior court of the county of , state of , at the courthouse in said county of , this day of , 19 . Attest my hand and the seal of said court, the day and year last above written. [Seal.] , Clerk. By , Deputy Clerk. [Endorsement of filing and of name of attorney obtaining writ.] FORM No. 1210 — Writ of execution for deficiency on foreclosure. [Title of court and cause.] The people of the state of to the sheriff of the county of , greeting: Whereas, on the day of , 19 , plaintiff recovered a judgment in the said superior court of the county of , state of , against , for the foreclosure of a certain mortgage, and the sale of the mortgaged premises in said judgment described, to satisfy the sum found due to the plaintiff for principal and inter- est, to wit, the sum of $ , with interest from the date of said judgment at the rate of per cent per annum till paid, together with the costs and expenses of sale, as appears to us of record, in obedience to which judgment the said sheriff sold the said mort- gaged premises and applied the proceeds of sale as therein directed, and has made his return unto said court ; that there is a deficiency of such proceeds of sale, and that there is still due to the plaintiff the sum of $ , bearing interest at the rate of per cent per annum from the day of , 19 , the date of said return; And whereas, the judgment-roll in the action in which said judg- ment was entered is filed in the clerk's office, in the said court, in the county of , and said balance or deficiency, on the Jury's PI.— 12a 1894 COSTS, EXECUTIONS, AND WRITS. [Tit. XVII. day of , 19 , against , the judgment debtor, who by said judgment is made personally liable therefor, and the sum of $ , with interest at the rate of per cent per annum from the said date of said docketing, are now actually due on said judgment : Now, you, the said sheriff, are hereby required to make the said sums due on said judgment, with interest as aforesaid, and costs and accruing costs to satisfy the said judgment, out of the personal prop- erty of the said debtor, ; or, if sufficient personal property of said debtor can not be found, then out of the real property in your county belonging to , the said debtor, on the day whereon said judgment was docketed, in the aforesaid county, or at any time thereafter. And make return of this writ within days, with what you have done endorsed thereon. Witness the Hon. , judge of the superior court of the county of , state of , at the courthouse in said county, this day of , 19 . Attest my hand and seal of the said court, the day and year last above written. [Seal.] , Clerk. By , Deputy Clerk. [Endorsements on the foregoing writ:] Clerk's fees as follows: This writ $ Satisfaction $ Total clerk's fees on writ $ Attest: , Clerk. By , Deputy Clerk. [Endorsement of filing and of name of attorney obtaining the writ.] FORM No. 1211 — Execution against real or personal property ir the hands of an executor, etc. [Title of court and cause.] The people of the state of to the sheriff [or other officer, designating official character] of the county of : "Whereas, a judgment was rendered on the day of , 19 , in the court, in an action in said court wherein Ch. CXLIL] WRITS.— FORMS. 1895 was plaintiff, and , as executor of the will [or as the admin- istrator of, etc.] of , deceased, [or insert other description of the capacity in which the property is held,] was defendant, in favor of said plaintiff and against said defendant, as such executor [or administrator] as aforesaid, for the sum of $ and costs, upon which judgment the sum of $ , with interest thereon from the day of , 19 , is now actually due; [And whereas, an order of the probate (or surrogate) of the county of , from whose court the letters testamentary under said will (or the letters of administration upon said estate) were issued, has been duly made, permitting execution to be issued upon said judgment for the sum of $ .] And whereas, the judgment-roll upon said judgment was filed in the clerk's office of the county of , on the day of , 19 , and a transcript of said judgment was filed, and said judgment was duly docketed, in the office of the clerk of your county on the day of , 19 : Now, therefore, you are hereby required to satisfy the said amount of $ out of the personal [or real, or real and personal] prop- erty of the said , in the hands of said , as such executor [or as such administrator], in your county; and that you return this execution to the clerk of the county of , within days [stating the number of days under the particular statute] after the receipt hereof. Witness the Hon. , one of the justices [or judges] of said court, at , on this day of , 19 . [Endorsements, etc., as in form No. 1210.] FORM No. 1212 — Execution upon writ of restitution. [Title of court and cause.] The people of the state of to the sheriff of County, greeting : Whereas, a judgment was rendered in the superior court of the county of , at the courthouse thereof, on the day of , 19 , against , in favor of , for the possession of certain premises described therein, and also for the sum of $ damages, and the sum of $ costs of suit : 1896 COSTS, EXECUTIONS, AND WRITS. [Tit. XVIL Now, therefore, these are to command you, that you place the said in quiet and peaceable possession of the said premises described in said judgment, as follows, to wit : [Here describe.] And these are further to command you, that of the goods and chattels, if sufficient, — if not, then of the lands and tenements, — of the said [naming the judgment debtor] you levy and cause to be made by distress and sale the said sum of $ damages as afore- said, and the said sum of $ costs; also, together with all costs that may accrue. And of this writ make legal service and return on the day after your receipt hereof. Witness the Hon. , judge of the superior court of the county of , in said state, this day of , 19 . [Seal.] , Clerk. By , Deputy Clerk. [Endorsement of filing on return of writ.] FORM No. 1213 — Writ of execution after remittitur filed [Title of court and cause.] The people of the state of of , greeting: day of to the sheriff of the county Whereas, on the of the state of case of v the county of , 19 , the supreme court rendered a judgment in said court on the , on appeal from the superior court of in favor of said , and the remittitur from said supreme court having been filed with the clerk of said superior court, and said having filed in this court his memorandum of his costs of said appeal, duly verified, amounting to the sum of $ , in United States gold coin, and accruing costs, amounting to the sum of $ , in like gold coin, as appears to us of record; and whereas, the sum of $ costs, and $ , accruing costs, as aforesaid, is now at this date actually due on said judgment, amounting in all to $ : Now, you, the said sheriff, are hereby required to make the said sums due on said judgment, and said costs and accruing costs, to satisfy the said judgment, out of the personal property of the said debtor [here naming him] ; or, if sufficient personal property of said debtor can not be found, then out of the real property in your county Ch. CXLII.] WRITS.— FORMS. 1897 belonging to [said debtor] on the day whereon said judgment was docketed in the aforesaid county, or at any time thereafter; and make return of this writ within days after your receipt thereof, with what you have done endorsed thereon. Witness the Hon. , judge of the superior court of the county of , state of , at said court, in said county of , this day of , 19 . Attest my hand and seal of said court, the day and year last above written. [Seal.] , Clerk. By , Deputy Clerk. [Endorsements on the foregoing writ of execution :] Clerk 's fees as follows : This writ $ Docket and filing $ Satisfaction $ Recording execution and return of sale . . $ Total clerk's fees on writ.- $ Attest: , Clerk. By , Deputy Clerk. [Filing endorsement.] FORM No. 1214— Writ of assistance. [Title of court and cause.] The people of the state of to the sheriff of County, greeting : Whereas, the application of for a writ of assistance having been submitted on the day of , 19 , upon the affidavit on file in said cause, and the court being fully advised therein : It is ordered, that a writ of assistance issue, placing in the possession of the following-described premises, to wit: [Here follows description.] Now, therefore, these are to command you, the said sheriff, that you place the said in possession of the said hereinbefore- described premises, and remove said defendant from said premises and every part thereof. And of this writ make legal service and due return within days after your receipt of the same. 18 98 COSTS, EXECUTIONS, AND WRITS. [Tit. XVII. Witness the Hon. , judge of the superior court of the county of , state of , and the seal of the court, this day of , 19 . [Seal.] , Clerk. By , Deputy Clerk. [Endorsement on the foregoing writ:] Memorandum of costs : Accrued costs $ This writ $ Docketing and filing $ Satisfaction $ Total clerk's fees $ Attest : , Clerk. By , Deputy Clerk. [Endorsement of filing on return of writ.] §499. ELEMENTS OF PETITION FOR AN ORDER REQUIRING DEBTOR OF A JUDGMENT DEBTOR TO APPEAR AND ANSWER. [Title of court and cause.] 1. Introductory part. 2. Statement of proceedings in the action between the petitioner and judgment debtor, and allegation as to judgment given and made against said judgment debtor and in favor of the petitioner. 3. Issuance of execution to sheriff, and return thereof unsatisfied in whole or in part, as the case may be. 4. Averment that is a debtor of said judgment debtor, and prayer that such alleged debtor may be cited to appear before a judge or referee, at a time and place certain, to answer before such judge or referee concerning any debt due from him, said debtor, to said judgment debtor ; and prayer that such debts when discovered and properly levied upon may be applied to the satisfaction of said judgment. 5. Concluding part. Ch. CXLIL] ANNOTATIONS. 1899 § 500. ANNOTATIONS.— Costs, executions, and writs. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13, 14. 15. 16. 17. 18. 20. 21. 22. 23. 24. 25. 26. 27 28. 29. 30. 19, Costs. — Statutory limitation of right. What statute governs. Costs in equity cases. In divorce. In foreclosure. Costs where partial relief is granted. In action for trespass. Counsel fees as costs. Costs where action abates. Statutory costs. Unliquidated demands. Costs under attachment. Counterclaim as affecting costs. Premature filing of cost-bill. Filing after statutory time. Effect of modification or reversal. Writs. — Common-law practice. Definitions of "writ" and "process." Discharge of improper writs. — Reference. Writ of assistance. — Nature of. Writ as summary proceeding. Operation of writ. Writ in foreclosure. Writ of restitution upon judgment in ejectment. Remedy of party removed under writ. Restoring to possession after reversal of judgment. Tenants who may be dispossessed under writ. Omce of writ coram nobis. 1. COSTS. — Statutory limitation of right. — The only limitation upon the right of a prevailing party in the superior court to recover the costs incurred, whether recovery be for a whole or a portion of the claim, or whether the claim be made up of one or several causes of action, is that he shall re- cover $300 or over. Right to recover the costs is purely statutory, and in ab- sence of the statute no costs could be recovered by either party: Fox v. Hale & Norcross S. Min. Co., 122 Cal. 219, 223, 54 Pac. 73. (Under the California code, the minimum amount of such court's jurisdiction being the sum of $300.) 2. What statute governs. — Right to recover costs is purely statutory, and their recovery is governed by the stat- ute in force at the time the right to have them taxed occurs: Begbie v. Beg- bie, 128 Cal. 154, 155, 60 Pac. 667, 49 L. R. A. 141; Williams v. Atchison etc. R. Co., 156 Cal. 140, 141, 103 Pac. 885. 3. Costs in equity cases. — In equity cases the allowance of costs is within the discretion of court, and such discre- tion will not be reviewed by the ap- pellate court in absence of the state- ment or bill of exceptions: Faulkner v. Hendy, 103 Cal. 15, 26, 36 Pac. 1021. 4. In divorce the costs rest in the dis- cretion of the court: Brenot v. Brenot, 102 Cal. 294, 296, 36 Pac. 672. 5. In foreclosure. — An action of fore- closure being equitable, allowance of the costs is in the discretion of the court: Irvine v. Perry, 119 Cal. 352, 357, 51 Pac. 554, 949. 6. Costs where partial relief Is granted. — Allowance of costs does not depend upon the form or nature of the action, but rather upon the fact whether the case comes within the terms of the statute. Under this principle, in an action to quiet title, if the plaintiff recover as to any part of the property involved, and judgment runs to the defendant for the remainder, the plaintiff is entitled to costs: Sierra Union W. & M. Co. v. Wolff, 144 Cal. 430, 433, 77 Pac. 1038. 7. In action for trespass. — In an action to recover damages for trespass on real property, coupled with a prayer for in- junction to restrain commission of threatened waste, equitable awarding isoo COSTS, EXECUTIONS, AND WRITS. [Tit. XVII. of the costs is not controlled by the amount of damages recovered: Bem- merly v. Smith, 136 Cal. 5, 6, 68 Pac. 97. 8. Counsel fees as costs are not re- coverable by a successful party in an action at law or in equity, except where expressly allowed by the statute: Estate of Olmstead, 120 Cal. 447, 453, 52 Pac. S04. See Miller v. Kehoe, 107 Cal. 340, 40 Pac. 485; Bates v. Santa Barbara County, 90 Cal. 543, 27 Pac. 438. 9. Costs where action abates. — Costs are but a part and incident of the judg- ment. They can not be recovered until a judicial determination is had of the action in which they have been in- curred, and if the action abate and the court loses power to render judgment between the parties upon issues before it, it is equally powerless to render judg- ment for the costs incurred therein. When an action abates by the death of a party, there can be no judgment for costs in favor of the survivor: Begbie v. Begbie, 128 Cal. 154, 155, 60 Pac. 667, 49 L. R. A. 141. 10. Statutory costs in each of the con- solidated cases may be recovered not- withstanding the consolidation: Gray's Harbor Boom Co. v. McAmmant, 21 Wash. 465, 58 Pac. 573. 11. Unliquidated demands. — Costs in an action upon an unliquidated demand, which defendant pleaded and was en- titled to use as a set-off, are recoverable by the plaintiff in a subsequent action where the defendant denied the claim of the plaintiff and put him to the ex- pense of establishing it: Milner v. Cam- den Lumber Co., 74 Ark. 224, 226, 85 S. W. 234. 12. Costs under attachment. — Costs under a valid attachment are secured by the lien of the attachment the same as the original debt: Bories v. Union B. & L. Assn., 141 Cal. 79, 74 Pac. 554. 13. Counterclaim as affecting costs. — In action upon a money demand, where one defendant files a counterclaim, and the plaintiff fails to recover against him, but recovers against a co-defend- ant, and the defendant interposing the counterclaim fails to recover thereon, Judgment against him for the costs is erroneous. In such a case the court is allowed no discretion, the question be- ing settled by statute (Cal. C. C. P. § 1024). If may be that the costs were nearly all incurred in defending against the counterclaim, but even then statute does not authorize the court, where plaintiff fails to recover, to charge the defendant with any part of the costs: Benson v. Braun, 134 Cal. 41, 42, 66 Pac. 1. 14. The defendant is entitled to re- cover his costs in the action for money or the damages where judgment is in his favor, and it does not change the iule that judgment be in his favor on counterclaim for a nominal sum: Davis V. Hurgren, 125 Cal. 48, 49, 57 Pac. 684. 15. Premature filing of cost-bill. — The cost-bill filed before the filing of find- ings is premature, and will be stricken out on motion: Sellick v. DeCarlow, 95 Cal. 644, 645, 20 Pac. 795. 16. Filing after statutory time. — It is a settled rule in California that if the party entitled to costs neglects to serve and file his memorandum thereof until more than five days have elapsed after he has knowledge of decision of court, though no notice of it has been served upon him, the filing will be too late, and the costs will be stricken out on mo- tion: Dow v. Ross, 90 Cal. 562, 563, 27 Pac. 409. See Mallory v. See, 129 Cal. 356, 360, 61 Pac. 1123. 17. Effect of modification or reversal. — Where, in the exercise of its discre- tion in allowing the costs in equity cases, the court taxes against each party the cost of maintaining certain is- sues, upon reversal of judgment upon one of such issues the costs should be retaxed accordingly: Barthgate v. Ir- vine, 126 Cal. 135, 148, 58 Pac. 442, 77 Am. St. Rep. 158. IS. WRITS. — Common-law practice. Under the old English practice, there were two classes of writs, — original and judicial. The original writ was a man- date of the court constituting the foun- dation of the action and the commence- ment of a legal proceeding. It was served upon the person named in the writ, and required his appearance in court, or the performance of some act designated by the writ. Writs that were issued after the action was com- menced were designated judicial writs, and were only issued out of the court in which the action was pending, or which issued the original writ: In r« Damon, 104 Fed. 775, 777. (Under the code system, the purpose of the original writ as defined above is served by summons or citation, while subsequent processes, comparable to ju- Cli. CXLII.] ANNOTATIONS. 1901 diclal writs under the common law, are variously designated as orders, citations, processes, or writs as the particular necessity demands.) For the various kinds of writs, see ch. CXLII, forms Nos. 1204-1214. 19. Definitions of "writ" and "proc- ess." — Under the Code of Civil Pro- cedure of the state of California (§ 17, sub. 6), the word "writ" signifies an order or precept in writing, issued in the name of the people, or of a court or judicial officer; and the word "process" a writ or summons issued in the course of judicial proceedings. 20. A writ is defined as "an order or precept in writing, issued by a court, clerk, or judicial officer": Gowdy v. Sanders, 88 Ky. 346, 347, quoting and construing subdivision 27 of § 732 of the Civil Code of Practice. 21. Discharge of improper or irregu- lar issuance of writs generally: See Kohler v. Agassiz, 99 Cal. 9, 33 Pac. 741; Sparks v. Bell, 137 Cal. 415, 70 Pac. 281. 22. Writ of assistance. — Nature of. — A writ of assistance is a summary pro- ceeding resorted to under the rules of chancery practice to give effect to the decree, and presupposes that the rights of the parties are only such as follow upon the decree and the sale had pur- suant thereto. If those rights have been changed by reason of an agreement sub- sequently entered into, so that the issu- ance of the writ might work injustice, it should be withheld: San Jose v. Ful- ton, 45 Cal. 316, 319. 23. Writ as summary proceeding. — A writ of assistance is a summary pro- ceeding which a plaintiff may some- times advantageously avail himself of, but is not res adjudicata as to any questions which may arise, and a right to the writ does not deprive a party of the fuller remedy afforded by an ordi- nary action: Trope v. Kerns, 83 Cal. 553, 23 Pac. 691. 24. Operation of writ. — A writ of as- sistance relates back to and operates upon those rights only which have been determined by the judgment: Kirsch v. Kirsch, 113 Cal. 56, 62, 45 Pac. 164. 25. Writ in foreclosure.— Writ of as- sistance is a proper remedy to place a mortgagee who has purchased , under foreclosure sale in possession under his deed; it runs against the mortgagor and all persons who have purchased the fee under him pendente lite with notice: Hibernia Sav. & L. Soc. v. Lewis, 117 Cal. 577, 580, 47 Pac. 602, 49 Pac. 714. See Montgomery v. Tutt, 11 Cal. 190; Skinner v. Beatty, 16 Cal. 156; Mont- gomery v. Middlemiss, 21 Cal. 103, 81 Am. Dec. 146; Frisbie v. Fogarty, 34 Cal. 11; Newmark v. Chapman, 53 Cal. 557; Sichler v. Look, 93 Cal. 600, 29 Pac. 220. 26. Writ of restitution upon Judgment In ejectment. — A writ of restitution may be issued on a judgment in ejectment after the death of the plaintiff, if the judgment was rendered in his lifetime, at the instance and for the benefit of his successor in interest; and if issued and served in the name of the deceased plaintiff, although irregular in point of procedure, if it is correct in substance, defendants will not be restored to pos- session: Franklin v. Merida, 50 Cal. 289, 293. 27. Remedy of party removed under writ. — A party removed from the pos- session of real estate under a writ of restitution issued on a judgment in ejectment who moves to be restored to possession on the ground that he was not a party to the action must make out a clear case, and one free from am- biguity: California Q. S. M. Co. v. Red- ington, 50 Cal. 160, 161. A person wrongfully turned out of possession of land, under a writ of res- titution will be restored by the court to the possession on motion: South Beach L. Assn. v. Bergle, 41 Cal. 501, 504. 28. Restoring to possession after re- versal of judgment. — Where plaintiff is placed in possession under judgment of forcible entry and detainer by a writ of restitution, and judgment is afterwards reversed by the supreme court, the court below should restore the defendant to possession: Polack v. Shafer, 46 Cal. . 270, 277; Pico v. Cuyas, 48 Cal. 639, 642. 29. Tenants who may be dispossessed under writ. — Persons not parties to a suit, and in possession before it was brought, or those claiming under them, could not be ousted of their possession by writ of restitution; but it is other- wise of tenants coming in under the landlord pending the suit: Sampson v. Ohleyer, 22 Cal. 200, 207. 30. Office of the writ of coram nobis is to bring the attention of the court to, and obtain relief from, errors of fact, such as the death of either party pend- ing the suit and before judgment there- 1902 NEW TRIALS, APPEALS, ETC. [Tit. XVIL in, or infancy, where the party is not properly represented by guardian, or coverture, where the common law dis- ability still exists, or insanity, it seems, at the time of the trial, or a valid de- fense existing in the facts of the case, but which, without negligence on the part of the defendant, was not made. either through duress or fraud or excus- able mistake; these facts not appearing on the face of the record, and being such as, if known in season, would have prevented the rendition and entry of the judgment questioned: State v. Riley, 219 Mo. 667, 118 S. W. 647, 651, quoting from 5 Ency. PI. & Pr. 26, 27. CHAPTER CXLIII. New Trials, Appeals [and Writs of Error]. Page § 501. New trials 1904 Form No. 1215. Notice of intention to move for new trial.... 1904 Form No. 1216. Notice of intention to move for a new trial, specifying grounds 1904 Form No. 1217. Notice of presentation of bill of exceptions for settlement 1905 Form No. 1218. Minute order denying motion for new trial... 1905 Form No. 1219. Court order denying motion for new trial.... 1906 Form No. 1220. Conditional order granting new trial. (Minute entry.) 1906 Form No. 1221. Minute entry permitting amendment to notice of intention to move for new trial, and deny- ing motion for new trial upon amended notice 1906 Form No. 1222. Order dismissing motion for new trial for failure to prosecute 1907 Form No. 1223. Notice of order dismissing motion for new trial 1907 § 502. Appeals [and writs of error] in state courts 1908 Form No. 1224. Writ of error. (Hawaii statutory form.) 1909 Form No. 1225. Notice of appeal from judgment 1911 Form No. 1226. Notice of appeal from part of a judgment 1912 Form No. 1227. Notice of appeal from judgment and order denying motion for new trial 1912 Form No. 1228. Notice of appeal from judgment granting in- sufficient relief 1912 Form No. 1229. Notice of appeal from order denying motion for new trial 1913 Form No. 1230. Notice of appeal on questions of both law and fact from justice's court to superior court. (California.) 1913 Form No. 1231. Acknowledgment of service of notice of appeal 1914 Form No. 1232. Affidavit of mailing notice of appeal 1914 Ch. CXLIII.] NEW TRIALS, APPEALS, ETC. ]!)) Attorney for defendant. To A. B., Attorney for plaintiff. FORM No. 1218 — Minute order denying motion for new trial. (In Noyes v. Schlegel, 9 Cal. App. 516; 99 Pac. 726.) [Title of court and cause.] June 12, 1908. In this cause the defendant, L. Schlegel, moved for a new trial on the following grounds, to wit: [Here the grounds are stated.] Said motion was submitted for ruling thereon by the court ; where- fore, it is ordered that the motion for a new trial be and the same is hereby denied. 1906 NEW TRIALS, APPEALS, ETC. ' [Tit. XVII. FORM No. 1219 — Court order denying motion for new trial. (In Ellsworth v. Knowles, 8 Cal. App. 630; 97 Pac. 690.) [Title of court and cause.] Defendant's motion for new trial herein having been heretofore submitted to the court for consideration and decision, and the court, being informed in the premises, now orders that said motion be and the same is hereby denied. In open court, December 30, 1907. A. L. Rhodes, Judge of Superior Court. FORM No. 1220 — Conditional order granting new trial. (Minute entry.) (In Swett v. Gray, 141 Cal. 63; 74 Pac. 439.) 1 [Title of court and cause.] May 4, 1901. The motion of defendant for a new trial, on the grounds set forth in his statement on said motion, and the amendments thereto, came on to be heard this 4th day of May, 1901, and upon the court's con- sideration thereof: It is ordered, that a new trial be granted unless within ten days the plaintiff, in writing, remits all of the judgment in excess of $5,000; and if plaintiff shall remit the sum of $8,300 from the judgment within ten days, then, and in that case, the motion for a new trial will be denied. FORM No. 1221 — Minute entry permitting amendment to notice of intention to move for new trial, and denying motion for new trial upon amended notice. (In Clapp v. Vatcher, 9 Cal. App. 462; 99 Pac. 549.) Minutes Superior Court, Feb. 10, 1908. [Title of court and cause.] Defendant's motion to amend a notice of intention to move for a new trial is granted and amendment made. i From this order the plaintiff appeals from that part and portion thereof which provides that if plaintiff shall remit the sum of $8,300 from said judgment within ten days from the date of said order, then, in that event, the motion for a new trial will be denied. Plaintiff on the appeal asks "if the judgment be affirmed, that this [supreme] court designate and fix in its judgment and decision a reasonable time within which plaintiff may, if she shall desire so to do, make such remission as specified in said order of the said superior court": held, that such appeal was, in effect, a refusal by plaintiff to remit any portion of the judgment or abide by the terms of the order, and was an exercise of the plaintiff's option; further, that an appeal should not be permitted on the assumption that plaintiff has all to gain and nothing to lose by the course taken, the order being therefore affirmed: Swett v. Gray, 141 Cal. 63, 70, 74 Pac. 439. Ch. CXLIIL] NEW TRIALS.— FORMS. 1907 Motion for a new trial made upon the ground set forth in the notice of intention is presented, and a new trial is denied defendant, to which ruling defendant duly excepts. FORM No. 1222 — Order dismissing motion for new trial for failure to prose- cute. (In McFarland v. Matthai, 7 Cal. App. 599; 95 Pac. 179.) [Title of court and cause.] The motion of the above-named plaintiff for an order of this court to dismiss the motion of the above-named defendant for a new trial herein, for failure of the defendant to prosecute the said motion for a new trial, coming on regularly to be heard this 24th day of April, 1905, Messrs. Bell, York & Bell appearing on behalf of the defend- ants, and it appearing to the court that due notice of this motion to dismiss was duly and regularly served on * * * the attorneys for the defendants herein, and it further appearing that the defendants have failed to prosecute the said motion for a new trial, and have failed and neglected to have the proposed state- ment on motion for a new trial settled and approved by this court, and have abandoned the motion for a new trial, and the said pro- posed statement for the motion for a new trial, for a period of three and one-half years, and all and singular the law and premises being by the court understood and considered, wherefore : It is hereby ordered, that the motion of the defendant for a new trial in the above-entitled action, together with the proposed state- ment and amendments thereto, are, and each of them is, hereby dis- missed. Done in open court, this 24th day of April, 1905. Henry C. Gesford, Judge of the Superior Court. FORM No. 1223 — Notice of order dismissing motion for new trial. (In McFarland v. Matthai, 7 Cal. App. 599; 95 Pac. 179.) [Title of court and cause.] To Theisen & Jung, Attorneys for the defendant : Please take notice, that on the 24th day of April, 1905, in the above-entitled court and action, an order was duly made and entered 2908 NEW TRIALS, APPEALS, ETC. [Tit. XVII. dismissing the motion of the defendant for a new trial in the above- entitled action, and also the defendant's proposed statement on motion for a new trial, a true copy of which order is hereby annexed. Bell, York & Bell, Attorneys for the defendant. [Copy of order annexed, as same appears in form No. 1222.] Form of statement upon motion for a new trial: Harris v. Kellogg, 117 Cal. 484, 49 Pac. 708. §502. APPEALS [AND WRITS OF ERROR] IN STATE COURTS. [References to Statutes.] Alaska: Appeals and writs of error generally, Ann. Code C. C. P. 1907 (Carter), §504 et seq. ; laws regulating appeals and writs of error are generally the same as those obtaining in the federal courts, §508. Arizona: Appeals and writs of error generally, Rev. Stats. 1901, fl 1493 et seq. ; petition for writ of error, fl 1499 ; bonds, flfl 1501, 1506 ; supersedeas, flfl 1510-1513 ; summons in error, fl 1502. Arkansas: Appeals and writs of error generally, Dig. of Stats. 1904 (Kirby), §§1189-1201; parties, §1202 et seq.; supsedeas, §§ 1216-1221; trial and determination, §§ 1223-1242. California: Appeals in general, C. C. P. §936 et seq.; notice, §940; undertakings, §§941-945; alternative method of appeals, §§941a-941c; stay of proceedings, §§946, 949; undertakings in one instrument, § 947 ; papers on appeal, § 950 et seq. ; hearing and determination, § 954 et seq. ; appeals to supreme and district courts of appeal generally, code amendments C. C. P. 1880, p. 14, adding new chapters, superseding chapter II, part II, title XIII, as the same appears in the published codes. Colorado: Appeals to supreme court generally, Rev. Stats. 1908, §§422, 441; bond, §§422, 430; supersedeas, §437; scire facias, §§439, 440. Hawaii: Appeals and error generally, §1858 et seq.; bonds, § 1859 ; arrest of judgment, § 1861 ; writ of error, § 1874 ; cost bond upon writ of error, § 1876 ; form of writ of error, § 1879, as follows : Ch. CXLIII.] APPEALS. 1909 FORM No. 1224 — Writ of error. (Hawaii statutory form.) Supreme court of the territory of Hawaii. A. D., plaintiff In error. E. H., defendant in error. To M. N., Clerk, etc. [of the court addressed]: Whereas, in an action pending before the court for the Judicial circuit. In which was plaintiff, and defendant, error is alleged to have occurred, as appears by the assignment of errors on file in this court. You are commanded forthwith to send up to this court the record and all exhibits filed in said pro- ceedings. Witness the Hon. , Chief Justice of the Supreme Court. R. T., Clerk. Idaho: Notice of appeal, Rev. Code C. P. 1908, § 4808; undertak- ing, §4809; supersedeas, §4810; stay of proceedings, §§4814, 4817; undertakings in one instrument, § 4815 ; papers on appeal, § 4818 et seq. Iowa : Appeals from orders, Code 1897, § 4101 ; intermediate orders, § 4103 ; motion to correct error, § 4105 ; review in the supreme court, § 4107 ; notice, § 4114 ; abstracts of the record, § 4118 ; tran- scripts, § 4122 ; supersedeas bonds, § 4128 ; bonds and security, §§ 4132-4135. Kansas: Error in civil cases, Gen. Stats. 1905 (Dassler), §5465 et seq. ; parties, § 5468 ; parties to case-made and error proceedings, §5468; summons on petition in error, §§5477, 5478; case-made, §§ 5480-5482; stay and supersedeas bond, § 5485; undertakings gen- erally, §§5486-5489; bond to stay execution, §5502; vacating and modifying judgments and orders, §§ 5503-5515. Minnesota: Appeals generally, Rev. Laws 1905, §3457 et seq.; notice, §4359; bond for costs, §4366; supersedeas, §§4367, 4368; delivery of chattels, or directing conveyances, §§4369, 4370; super- sedeas where sale of real property is directed, § 4371 ; stay of proceedings, § 4372; bond to vacate stay, §§ 4374, 4375. Missouri: Appeals, when granted, Ann. Stats. 1906, §806; par- ties, § 807 ; time, § 808 ; bond to stay execution, §§ 809, 810, 849 ; costs t § 813 ; writ of error, § 835 ; stay of execution thereon, § 849 ; cross appeals, § 876. Montana: Undertaking on appeal generally, C. C. P. 1895, § 1725; to stay execution, § 1726; undertaking where the judgment directs the delivery of documents, etc., § 1727 ; or the execution of a conveyance, § 1728; or the sale or delivery of possession of real Jury's PL— 121. 1ss. County of . J R. S., being duly sworn, says, that the foregoing return is true. [Or otherwise verify as the statute of the particular state requires.] R. S. [Jurat.] Ch. CXLV.] ORDERS, ETC.— FORMS. 1947 FORM No. 1281 — Order for discharge of prisoner. [Title of court and cause, etc.] It appearing upon the return of the writ of habeas corpus allowed by me that A. B. is imprisoned [confined or restrained] by [name of officer or person by whom he is held], and no lawful cause for the said imprisonment [or restraint] of said A. B., or for the continuance thereof, having been shown, I do therefore order and direct the said forthwith to discharge the said A. B. from his custody. Given under my hand, at , this day of , 19 . S. T., Judge. FORM No. 1282 — Order denying writ and remanding prisoner. [Title of court and cause.] It having appeared upon the return of the writ of habeas corpus allowed by me that A. B., upon whose application the said writ was issued, is detained in custody by , by virtue of a mandate issued by a court [or judge] of the United States, in a case where such courts [or judges] have exclusive jurisdiction [or state other ground for denial of writ], and that the time for which he may legally be so detained has not expired : I do hereby order, that the said A. B. be and he is hereby remanded to the custody of the said under said mandate [or judgment, or other cause or warrant for detention]. [Date.] S. T., Judge. §508. ANNOTATIONS. Order directing trial court to give petitioner In habeas corpus proceedings time In which to pursue his remedy by appeal from the judgment. — [Title of court and cause.] Good cause appearing- therefor, it is hereby ordered by this court that the county court of Rogers County give Arthur Flowers, petitioner herein, upon an application for writ of habeas corpus, thirty days' additional time to the time originally given him by said court to prepare and serve his case-made in this case. TDate.] , Judge of Criminal Court of Appeals: Ex parte Flowers, 2 Okla. Cr. 430, 101 Pac. 860. Commitment without reasonable or probable cause. — Where the petition is upon the ground that the prisoner has been committed and detained without reasonable or probable cause, it must set forth suficient of the evidence taken at the pre- liminary examination to show such w.nt of probable cause: Ex parte Lapique, 139 Cal. xix, 72 Pac. 995; State v. f 3cond Judicial District, 26 Mont. 275, 67 Pac. 943. And such evidence must be se' f»rth in such form that perjury may be assigned on false accusations: Ex parte Walpole, 84 Cal. 584, 24 Pac. 308; Ex parte Pjckley, 105 •Cal. 123, 38 Pac. 686. 1948 PROCEEDINGS IN INSANITY. [Tit. XVIII. Writ, when denied. — A writ of habeas corpus will be denied where it appears that the judgment upon which the petitioner is imprisoned is one from which an appeal may be taken, thereby affording an adequate remedy at law: Ex parte Flowers, 2 Okla. Cr. 430, 101 Pac. 860, 863. When writ will be granted. — A writ of habeas corpus will be granted, and the petitioner will be discharged in the proceedings thereon, where it appears that he is held in custody in proceedings before a justice of the peace where the record shows judgment, sentence, and commitment, but fails to show that plea was entered. Nor can the record be supplied by parol testimony or overthrown by such testimony: Ex parte Walton, 2 Okla. Cr. 437, 101 Pac. 1034, 1036. The plea of once In jeopardy will not be reviewed or inquired into on habeas corpus. If pleaded and disregarded, it is an error to be corrected by appeal: Ex parte King, 10 Cal. App. 282, 101 Pac. 810, 811, citing Church on Habeas Corpus, § 253. Extradition. — As to extradition upon a complaint charging the commission of an offense according to the form and procedure prescribed in the state in which the- crime was alleged to have been committed, see Morrison v. Dwyer (Iowa), 121 N. W. 1064. Order discharging an attachment for contempt against a trustee brought within the jurisdiction of the court by extradition proceedings based on a complaint and warrant on a charge of embezzlement of property under his control as trustee, affirmed in State ex rel. v. Boynton, 140 Wis. 89, 121 N. W. 887. CHAPTER CXLVI. Proceedings in Cases of Insanity. Page § 509. Charges of insanity and proceedings thereon. (Cal. Pol. Code, §§2168-2171.) 1948 Form No. 1283. Affidavit of insanity 1949 Form No. 1284. Warrant of arrest. (Insane person) 1949 Form No. 1285. Certificate of arresting officer 1950 Form No. 1286. Certificate of medical examiners 1950 Form No. 1287. Judgment of insanity and order of commit- ment of insane person 1952 Form No. 1288. Statement of financial ability 1954 Form No. 1289. Clerk's certificate to affidavit, etc., judgment of insanity, order of commitment, etc. (Annexed to judgment.) 1954 §509. CHARGES OF INSANITY, AND PROCEEDINGS THEREON. (Cal. Pol. Code, §§ 2168-2171.) "Whenever it appears by affidavit to the satisfaction of a magistrate of a county, or city and county, that any person therein is so far dis- ordered in his mind as to endanger health, person, or property, he must issue and deliver to some peace officer, for service, a warrant Vss. Ch. CXLVI.] CHARGES, ETC.— FORMS. 1949 directing that such person be arrested and taken before a judge of the superior court of the county, for a hearing and examination on such charge. Such officer must thereupon arrest and detain such person until a hearing and examination can be had, as hereinafter provided. At the time of the arrest a copy of said affidavit and warrant of arrest must be personally delivered to said person. Such affidavit and warrant shall be in substantially the following form; FORM No. 1283— Affidavit of insanity. In the court, of county of , state of California. In the matter of , an alleged insane person. State of California, County of , being duly sworn, deposes and says that there is now in said county, in the city or town of , a person named , who is insane, and is so far disordered in mind as to endanger the health, person or the property of himself, or of others, and that he, at , in said county, on the day of , 19 , threatened and attempted [state actions, etc.]. That by reason of said insanity, said person is dangerous to be at large. Wherefore, affiant prays that such action may be had as the law requires in the cases of persons who are so far disordered in mind as to endanger health, person, and property. [Signature of affiant.] [Jurat.] FORM No. 1284— Warrant of arrest. (Insane person.) In the court of county of , state of California. In the matter of , an alleged insane person. The people of the state of California, to any sheriff, constable, marshal, policeman, or peace officer in this state : The affidavit of , having been presented this day to me. at county of , state of California, from which it appears that there is now in this county, at , a person by the name of , who is insane, and who is so disordered in mind as to endanger his own health, person, and property [or the persons, lives, and property of others], and that it is dangerous for said per- son to be at large ; 195U PROCEEDINGS IN INSANITY. [Tit. XVIII. And it satisfactorily appearing to me that said is insane, and so far disordered in his mind as to endanger health, person, and property : Now, therefore, you are commanded forthwith to arrest the above- named person, and take him before a judge of the superior court of the said county of , for a hearing and examination on the said charge of insanity. And I hereby direct that a copy of this warrant, together with a copy of said affidavit, be delivered to said , at the time of his arrest ; and I further direct that this warrant may be served at any hour of the night. Witness my hand, this day of , 19 . [Signature of magistrate.] FORM No. 1285 — Certificate of arresting officer. Office of , county of , state of California : I hereby certify that I received the above warrant of arrest on the day of , 19 , and served the said warrant by arresting the said , alleged to be insane, and bringing him before judge of the superior court of said county of , on the day of , 19 ; and I further certify that I delivered a copy of said warrant of arrest, together with a copy of the affidavit of insanity, as directed in said warrant, personally to said , at the time of the arrest. [Signature.] FORM No. 1286 — Certificate of medical examiners. In the superior court of the county of , state of California. In the matter of , an alleged insane person. and , medical examiners in the county of , duly appointed and certified as such, do hereby certify, under our hands, that we have attended before a judge of said court at the examination of the said , and have heard the testimony of all witnesses sworn and examined upon said hearing, and have made a personal examination of the said , and have testified under oath before said court to the following facts, which were the result of said examination : Ch. CXLVI.] CERTIFICATE OF EXAMINERS.— FORMS. 1951 [Statements of facts.] 1. Name, , alleged insane person, resides at , county of , age, years; nativity, ; if foreign born, from what port or place did he come to the United States, and when and where did he land ; how long in California, ; place from which he came to this state, ; sex, ; color, ; occupation, ; religious belief, ; education — illiterate, reads only, common school, academic, collegiate, or unknown. [Strike out words not required.] Civil condition — single, married, widowed, divorced. [Strike out words not required.] If female and married, give maiden name, ; give maiden name of mother, ; number of children of mother: living, ; dead, 2. Has either parent been addicted to the use of opium, cocaine, tobacco, or alcoholic beverages to excess, or other stimulating narcotics? 3. Have any relatives been eccentric or peculiar in any way in their habits or pursuits? . If so, how? . Have any relatives, direct or collateral, suf- fered, or are they suffering, from any form of chronic disease, such as consumption or tuberculosis, syphilis, rheumatism, neuralgia, hysteria, or nervousness, or had epilepsy or falling sickness? 4. Which parent does alleged insane person resemble mentally, ; physically, ; habits [cleanly or uncleanly] (a) Has alleged insane person ever been addicted to masturbation or sexual ex- cesses? . If so, for how long? (b) Has alleged insane person ever had convulsions? . If so, when did he have the first one? . When the last one? (c) State alleged insane person's habits as to use of liquor, tobacco, opium, or other drugs, and whether excessive or moderate. (d) What is alleged insane person's natural disposition or temperament, and mental capacity? 5. Has alleged insane person insane relatives? . If so, state the degree of consanguinity, and whether paternal or maternal. 6. What is alleged insane person's general physical condition? 7. Specify any disease of which alleged insane person has suffered, or does suffer, or any injury received. 8. Has alleged insane person ever been an inmate of an institution for the insane? If so, state when, where, and how long. . Whether discharged or otherwise. (a) Number of previous attacks . (b) Date of previous attacks . (c) Length of time each previous attack lasted 9. Present attack began, . Was the present attack gradual or rapid in its onset? 10. Is alleged insane person noisy, restless, violent, dangerous, destructive, incen- diary, excited, or depressed? (a) Homicidal or suicidal? [If either homicide or suicide has been attempted or threatened, it should be so stated.] 11. Age when menses appeared, (a) Amount and character before insanity appeared, * (b) Since insanity appeared, 12. Has the change of life taken place? . (a) Was it gradual or sudden? (b) How changed from normal? . 13. Memory, (a) Sleep, (b) Headache or neuralgia, . (c) Constipation or indigestion, . (d) Hallucinations, (e) Delusions, [specify, if possible, and whether fixed or changeable]. 14. What is the supposed cause of insanity? — Predisposing, . Exciting, Other facts indicating insanity. [State what the alleged insane person said and did in the presence of the examiners, and how changed in business or social habits, and disposition, as communicated to examiners by others.] 1952 PROCEEDINGS IN INSANITY. [Tit. XVIII. What treatment has been pursued [state remedies given, and whether hypoder- mically or not] V Whether patient has been restrained by muff, belt, or otherwise, * Diagnosis: Name and address of correspondent, Telegraphic address, Relationship of correspondent to alleged insane person, And we do further certify that we believe the said is so far disordered in his mind as to endanger [state whether the dan- ger is to health, person, and property, or either, or any, as the case may be]. Dated this day of , 19 . [Signatures], Medical examiners in the county of , state of California. FORM No. 1287 — Judgment of insanity and order of commitment of insane person. In the superior court of the county of , state of California. In the matter of , an alleged insane person. On this day of , 19 , , a person alleged to be insane, was brought before me in open court, for a hearing and examination on a charge of insanity, on the affidavit of charging him with insanity, made before, and on a warrant of arrest issued thereon by , a magistrate of said county of , and upon the order of this court, fixing the time and place for the hearing and examination of said charge, made in open court, and it appearing to the court that said alleged insane person, when said order was made, was then and there personally present in open court, and was then and there informed by the court that he was charged with being insane, and of his rights to make a defense to such charge, and of his right to be represented by counsel, and to produce witnesses on his behalf, and to have subpoenas issued to compel the attendance of witnesses, and was further informed that, if at such hearing and examination, he should be ordered committed, that he might, within five days after the making of such order of commitment, demand that the question of his insanity be tried by a jury before said superior court. And it further appearing to the court, that the original order fix- ing the time and place for said hearing and examination was entered Ch. CXLVI.] COMMITMENT, ETC.— FORMS. 1953 in the minutes of the court by the clerk thereof, and a duly certified copy of said order was duly served on said alleged insane person, and upon , relatives of said alleged insane person, residing in said county of , as were deemed by the court necessary or proper persons to be served with notice of the arrest of said alleged insane person, and of hearing on said charge of insanity; At said hearing and examination, said alleged insane person \v;is represented by , an attorney of this court [appointed by the court for that purpose] ; The court thereupon, in open court, proceeded with the hearing and examination of said alleged insane person, and [here naming witnesses] were sworn and examined as witnesses in regard to the mental condition of said alleged insane person, his financial condi- tion, and that of the persons liable for his care, support, and main- tenance. At said hearing and examination, there were in attendance, and , two regularly appointed and qualified medical examiners of said county, who then and there heard the testimony of all the witnesses, and each of whom made a personal examination of said alleged insane person, and testified before the court as to the results of such examinations, and other pertinent facts within their knowl- edge. Said medical examiners, after making the examination and hear- ing the testimony of the witnesses, and testifying as aforesaid, did make a certificate showing all the facts required by section 2170 of the Political Code, which certificate is hereto attached and made a part hereof. Now, therefore, after such examination and certificate made as aforesaid, the court being satisfied from the testimony of said wit- nesses, and the truth of the matters set forth in said certificate, that said is insane, and is so far disordered in mind as to endanger health, person, and property, and that it is dangerous for life, health, person, and property for such person to be at large, and that his condition is such as to require care and treatment in a hospital for the care and treatment of the insane ; It is therefore ordered, adjudged, and decreed, that said is insane, that he be committed to and confined in the state hos- pital, at , California. 1954 PROCEEDINGS IN INSANITY. [Tit. XVIII. It is further ordered and directed that , sheriff of the county of , take, convey, and deliver said to the proper authorities of said hospital, to be held and confined therein as an insane person. The sum of $ having been found on the person of said per- son at the time of his arrest, the said sheriff is ordered to take pos- session of the same and deliver it to the medical superintendent of said institution with said insane person. Done in open court, this day of , 19 . [Signature], Judge of the Superior Court [etc.]. FORM No. 1288 — Statement of financial ability. As to the ability of said to pay for his care and support at the hospital, I find on diligent inquiry that said is possessed of real estate of the estimated value of $ , situated in , and of the following description : [Here describe] ; also the following described personal property : [Here describe] ; that said is able to pay the sum of $ per month for his care and support at the Name and address of guardian: ; residing at Or— That said has relatives as follows: [Here naming each known relative with his or her place of residence.] That said rela- tives are financially able to pay for the care and support of said , at the hospital, the sum of $ per month. Dated ,19 . [Signature], Judge of the Superior Court [etc.]. FORM No. 1289 — Clerk's certificate to affidavit, etc., judgment of insanity, order of commitment, etc. (Annexed to judgment.) State of California,) ■ SS. County of .} I, , county clerk and ex-officio clerk of the superior court of the county of , do hereby certify the foregoing to be a full, true, and correct copy of the original affidavit of insanity and order of arrest, order fixing time for hearing and examination, statement of financial ability, certificate of medical examiners, judgment of Ch. CXLVIL] PETITION, ETC.— FORMS. 1955 insanity, and order of commitment on file in my office, and that I have carefully compared the same with the originals. In witness whereof, I have hereunto set my hand and affixed the seal of said superior court, this day of , 19 . [Seal.] [Signature], County Clerk and ex-officio clerk of the Superior Court [etc.]. By , Deputy Clerk. CHAPTER CXLVII. Disbarment of Attorneys. Page Form No. 1290. Petition for disbarment 1955 Form No. 1291. Verification of petition for disbarment. (Cali- fornia.) 1956 Form No. 1292. Order addressed to accused to appear and an- swer 1956 Form No. 1293. Demurrer or objections to accusation 1957 Form No. 1294. Judgment of disbarment where the accusation is based upon a conviction of a felony 1957 Form No. 1295. Judgment or order of suspension i958 FORM No. 1290 — Petition for disbarment. [Title of court.] In the matter of A. B., an attorney at law. To the Honorable Court of the county of , state of Come now C. D. and E. F., of the city of , county of , state of , attorneys-at-law and members of the bar of said county and state, and make and present this their accusation to the said court, in and for said county and state, as follows : 1. That A. B. is, and at all times herein mentioned continuously has been, an attorney-at-law, duly licensed and admitted to practise in all the courts of the county of , state of ; and that said A. B. is now, and during all of said times has been, a practitioner in said courts. That the said A. B. is hereby accused of unprofessional conduct warranting his disbarment, upon the following facts, which facts are hereby made the basis of this charge and accusation, to wit : [Here set forth the facts showing (1) his conviction of a felony or 1956 DISBARMENT OF ATTORNEYS. [Tit. XVIII. misdemeanor involving moral turpitude; or (2) wilful disobedience or a violation of an order of the court requiring him to do or forbear an act connected with, or in the course of, his profession which he ought in good faith to do or forbear, and any violations of the oath taken by him, or of his duties as such attorney and counselor; or (3) corruptly or wilfully and without authority appearing as attorney for a party to an action and proceedings ; or (4) lending his name to be used as attorney and counselor by another person who is not an attorney and counselor, or any other acts made cause for disbarment by statute. Set out the facts fully upon each ground and all grounds of accusation.] Wherefore, your informants pray, that the court make an order requiring the said A. B. to answer these accusations, and if upon an investigation thereof he be found guilty of the matters herein charged, that he be dealt with as the law directs. M. N. [District Attorney of County], or C. D. and E. F., for petitioners and informants, in pro. per. [Verification as in form No. 1291, or as otherwise provided by statute.] FORM No. 1291— Verification of petition for disbarment. (California.) State of California,) - ss County of .} E. F., being duly sworn, says: That he is one of the informants named in the foregoing accusation; that he has read the same and knows the contents thereof, and that the charges contained therein are true. [Jurat of notary.] E - F - Verification of petition for disbarment.— Verification upon information of the informants in a proceeding for disbarment is insufficient: In re Hotchkiss, 58 Cal. 39, 40, citing Cal. C, C. P. §§ 290, 291; In re Hudson, 102 Cal. 467, 468, 36 Pac. 812. Where the verification is in the exact language of the statute it is sufficient: In re Collins, 147 Cal. 8, 10, 81 Pac. 220. FORM No. 1292 — Order addressed to accused to appear and answer. [Title of court and cause.] To : Whereas, on the day of , 19 , an accusation, in writ- ing duly verified by , was received and filed in this court, Ch. CXLVIL] ORDERS, JUDGMENT, ETC.— FORMS. 1957 charging that you have been guilty of [here state the offense] as a counselor and attorney-at-law, [if the accusation is accompanied also with affidavits, so state, designating the same by the names of affiants,] a copy [or copies] of which accusation [and affidavits] is [or are] hereto annexed and herewith served upon you; and the court being advised in the premises : You are hereby ordered and required to appear and answer said accusation at the courtroom of this court on the day of , 19 , at the hour of o'clock of said day. [The time under the California statute, § 292 C. C. P., must be at least five days after date of service of this order.] [Date } S. T., Superior Judge. [Annex copy of accusation (and affidavits, if any).] FORM No. 1293 — Demurrer or objections to accusation. [Title of court and cause.] Now comes , the defendant named in the accusation filed herein, and appears and answers to the said accusation as follows : Defendant demurs to said accusation upon the ground that the same does not state facts sufficient to constitute a cause for accusa- tion or for the disbarment or suspension of defendant as an attorney or counselor. And defendant further objects to said accusation upon the follow- ing grounds: [Here set forth any other objections as to the legal sufficiency of the accusation.] Wherefore, defendant prays that said accusation be dismissed, and that he be given such other relief as may be proper. M. N., defendant. A. B., Attorney for defendant. For the substance of an accusation for disbarment deemed sufficient as against ■demurrer, see the third count of the accusation in In re Collins, 147 Cal. 8, 18, 81 Pac. 220. FORM No. 1294 — Judgment of disbarment where the accusation is based upon a conviction of a felony. [Title of court and cause.] C. D. and E. F., having preferred charges, and having presented to this court and filed therein their accusation, in writing, duly veri- fied as required by law, against the above-named , defendant ; and proof having been made to the satisfaction of the court that a Jury's PL— 124. 1958 DISBARMENT OF ATTORNEYS. [Tit. XVIII. copy of said accusation [etc.], together with an order to appear and answer, was duly served upon said , defendant; and whereas, the said , defendant, interposed an answer thereto and hear- ing upon said accusation, and the answer thereto was in due course regularly had ; and the court having heard the proofs, wheref rora it appears that the said charge in the said accusation is true, and that on the day of , 19 , the said defendant was by a judg- ment duly given, made and rendered in the court of , state of , convicted of [here state the felony charged] : Now, upon all the papers, testimony, and proceedings herein : It is hereby ordered and adjudged, that the name of said , defendant, be and the same is hereby authorized to be stricken from the roll of attorneys and counselors of this court, and that defendant be and he is hereby precluded from henceforth practising as an attorney or counselor at law in any of the courts of this state. [Date.] S. T., Superior Judge. FORM No. 1295 — Judgment or order of suspension. [Title of court and cause.] [After recitals as to filing of the accusation, and service thereof^ together with the order to appear and answer, of the hearing there- on, and of the proofs and findings of any charge (specifying it) under the statute warranting the court in pronouncing judgment of suspension:] It is ordered and adjudged, that the defendant herein be and he is hereby deprived of the right to practise as an attorney or counselor in the courts of this state for the period of [here designating the period for which the suspension is to continue]. [Date.] S. T., Superior Judge. Ch. CXLVI1I.] JUVENILE COURTS. 1959 CHAPTER CXLVIII. Proceedings in Juvenile Courts- Form No. 1296. Form No. 1297. Form No. 1298. Form No. 1299. Form No. 1300. Form No. 1301. Form No. 1302. Form No. 1303. Form No. 1304. Form No. 1305. Form No. 1306. Form No. 1307. Form No. 1308. Form No. 1309. Form No. 1310. Form No. 1311. Form No. 1312. Page Petition for arrest and examination of a delin- quent minor. (California.) 1961 Citation to parent or custodian. (California.) 1961 Certificate of service of citation. (California.) 1962 Notice to parents, custodian, or guardian. (Utah.) 1962 Subpoena. (California.) 1963 Sheriff's certificate of service of subpoena. (California.) "... 1963 Commitment of dependent child. (California.) 1963 Commitment of delinquent child. (California.) 1964 Bench warrant. (California.) 1965 Order directing time of service of bench war- rant. (California.) 1965 Return endorsed upon bench warrant. (Cali- fornia.) 1965 Order admitting to bail. (California.) 1966 Order of commitment to school of industry. (From court of record, California.) 1966 Order of commitment to boys' school of indus- try. (From court of limited jurisdiction, California.) 1967 Affidavit on application for a permit for a minor child to work. (California.) 1968 Recommendation that permit issue 1969 Order granting permit 1969 [Note: The manifest injustice which so long prevailed in dealing with the delin- quencies and offenses of children has prompted the author to include a chapter devoted to this subject in this, a work relating to civil matters. To classify the delinquent acts of juvenile- offenders as crimes, or even as quasi-crimes, in the sense in which these terms are ordinarily understood, is not only to unjustly, but, we submit, to falsely, stigmatize such acts and the children who may be the unfor- tunate, misguided, or indiscreet offenders. The reason for this statement is that offenses committed by children are never, beyond a reasonable doubt, characterized by the one absolutely essential characteristic of every crime — a criminal intent, i. e.„ an intent which is based upon understanding and purpose. The statement might be ventured that the very commission of the offense by a person of immature years itself points the deficiency and weakness. It may be questioned whether retributive, as opposed to reformative or corrective, measures are ever justified in dealing with even adult offenders; but as to delinquent children, who are naturally of immature understanding, generally vacillating in will, and almost invariably unfortunate in their environments, there can be no reasonable or humane dissent from the principle that the measures brought to bear upon them and their delin- quent acts should in every case be corrective only, and as far removed as possible from the terminology, methods, and practices incident to jurisdiction over crimes.] 1960 JUVENILE COURTS. [Tit. XVIII. [References to statutes.] California: In this state there are no distinctively juvenile courts. The superior courts are vested with jurisdiction in all matters relating to delinquent and depend- ent juveniles. For the statutes relating to this subject, see Henning's Gen. Laws, p. 115; Kerr's Bienn. Supp. 1906-1909, pp. 1471-14S4; Employment of Minors, Hen- ning's Gen. Laws, p. 122; Kerr's Bienn. Supp. 1906-1909, pp. 1495-1498. Arizona: See Laws 1907, p. 142 et seq. Colorado: Juvenile courts, see Rev. Stats., §§ 1589 to 1607; Sess. Laws 1907, ch. 149, p. 324; Laws 1909, ch. 156, p. 334 et seq. Hawaii: Laws 1905, Act. 28, p. 31; Laws 1907, pp. 32, 36; Laws 1909, Act. 22, p. 22 et seq. Idaho: Juvenile delinquents, Rev. Pol. Code, §§ 823-832; Prob. and Jus. Cts., §§ 8328-8337; Sess. Laws 1909, pp. 7, 224, 272. (Form of commitment, Pol. Code, § 824.) Iowa: Juvenile courts, detention homes, etc., Supp. 1907, ch. 5-b, § 254-a 18 to 254-a 30; Laws 1909, ch. 13, p. 14. Kansas: Juvenile courts, Gen. Stats. 1905 (Dassler), §§4412-4426; Laws 1909, p. 277 et seq. Minnesota: Juvenile offenders, Rev. Laws 1905, §§ 5496-5503; Laws 1907, pp. 106, 193, 550; Laws 1909, pp. 354, 507. Missouri: Delinquent and neglected children, 3 Mo. Ann. Stats. 1906, §§ 5251-3 to 5251-56, pp. 2732-2748. Montana: Delinquent children and juvenile offenders, Rev. Codes 1907, §§ 9423- 9439; Laws 1907, pp. 224-232. Nebraska: Juvenile courts, etc., Ann. Stats. 1909 (Cobbey), §§ 5451-5490. Nevada: Delinquent children, Stats. 1908-1909, pp. 229-241; contributory depend- ency and contributory delinquency, pp. 203-206. North Dakota: Reform school, Stats. 1907, pp. 288, 377; dependent children, Stats. 1907, p. 121; regulating child labor, Stats. 1909, p. 181. North Dakota Rev. Codes 1905, § 9511, provides: "Whenever any person under the age of sixteen years is con- victed of an offense punishable by imprisonment in the penitentiary, the court before whom such conviction was had may, in its discretion, sentence the person so convicted to imprisonment in the county jail of the county in which such conviction was had." [Note: While the statute above quoted is a partial recognition of the principles which govern recent legislation upon the subject of juvenile courts and juvenile offenders, nevertheless the legislature of that state, and of other states where similar laws prevail, should, we submit, give greater latitude to the courts in dealing with this class of eases. The fact that there must first be a conviction is not a safeguard to the welfare of the child for the reason that the principal harm is by the trial and conviction themselves inflicted upon him.] Oklahoma: Juvenile offenders, Comp. Laws 1909 (Snyder), §§ 8518-8565. Oregon: Codes and Stats. 1902 (Bel. & Cot.), §1449 et seq.; acts as to employ- ment of minors, Laws 1907, p. 302; Laws 1909, p. 194. South Dakota: Delinquent minors, Rev. Code Crim. Proc. 1903, §770; Pol. Code, §§ 3205-3214; as to contributory dependency and contributory delinquency of children, see Sess. Laws 1909, pp. 421-424. Texas: Supp. Stats. 1908 (Sayles), p. 124, §§ 1-7; Supp. Stats. 1910 (Sayles), p. 218, Arts. 2941-2953. Utah: Juvenile courts, Laws 1909, ch. 122, p. 324; as to dependent, neglected, and ill-treated children, Laws 1909, ch. 123, p. 331. Washington: Delinquent children, Codes and Stats. 1910 (Rem. & Bal.), |5 8605- 8615, Sess. Laws 1905, p. 34; reformatories, §§ 4380-4386, Laws 1905, p. 39. Wisconsin: Juvenile courts, Stats. 1907, ch. 573-1 to 573-9, p. 762. Wyoming: Juvenile delinquents, Rev. Stats. 1899, §§4930-4934 and §4935 a* amended in Laws 1903, ch. 106; Rev. Stats. 1899, § 4936 et seq. Ch. CXLVIIL] PETITION, ETC.— FORMS. 1961 FORM No. 1296 — Petition for arrest and examination of a delinquent minor. (California.) The People of the state of California ~) in behalf of , > a delinquent child. J State of California, County of To the Honorable Superior Court of the county of , state of California : Your petitioner, , respectfully represents that he is a citizen of the United States and of the state of California, over the age of twenty-one years ; that the above-named , a child under the age of sixteen years, to wit, the age of years, on or about the day of , 19 , is now within said county, and that said child is a delinquent child within the meaning of the statute made and provided, in this, that said child [here state the reasons for such delinquency] ; that the said child is now in the custody and under the control of ; that the names and residences of the relatives of said child living in said county are as follows: [Here state] ; that in order to secure the attendance of said child at the hearing of said matter it will be necessary that a citation be issued to the said cus- todian of said child, and to [here set forth names of such other par- ties as may be cited to appear]. Wherefore, your petitioner prays, that a citation issue command- ing that the said appear before this court on the day of , 19 , at o'clock M., with the said minor herein named, and that upon the hearing the said minor be dealt with according to the provisions of the statute. [Signature.] [Verification.] FORM No. 1297 — Citation to parent or custodian. (California.) [Title of court and cause.] The people of the state of California to [parent or custodian] : You are hereby cited and required to appear before this court in the city of , in the county of , state of California, at the courtroom of department No. , on the day of , 19 , at o'clock M. of that day, and bring with you the above- named , a child under the age of sixteen years, and then and 1962 JUVENILE COURTS. [Tit. XVL'I. there to show cause, if any you have, why said child should not be declared to be a delinquent child, according to the petition on file herein. And for failure to attend and bring said child with you, you will be deemed guilty of a contempt of court. By order of the superior court, in and for the county of , the seal of said court affixed, this day of , 19 . [Seal.] , Clerk. By , Deputy Clerk. FORM No. 1298 — Certificate of service of citation. (California.) Office of the Sheriff of the county of I hereby certify, that I received the within citation on the day of , 19 , and personally served the same on the day of , 19 , at , in the said county of , upon the within- named , by delivering a copy of said citation to person ally on the day last aforesaid. [Date.] , Sheriff. By , Deputy Sheriff. FORM No. 1299 — Notice to parents, custodian, or guardian. (Utah practice, Laws 1909, p. 327.) [Title of court and cause.] x To , [here designate relationship] : You are hereby notified to appear within two days after the serv- ice of this notice upon you, if served within the county wherein the above proceeding is pending, otherwise within five days, and assert and defend any rights to custody, control, or guardianship you may have or claim over or in the above-named child; otherwise, your default will be entered and the court will proceed to hear and deter- mine your said rights, or supposed rights, in accordance with the lav and the evidence. . , T ... _ r , .« A. N., probation officer [or sheriff, or other peace officer]. [Return of officer showing service to be annexed, which return is by statute made conclusive.] i Under the Utah statutes, the title Is provided to be: "State of Utah in the interest of , delinquent": Laws 1909, ch. 122, § 720x4, p. 326. Cli. CXLVIII.] SUBPOENA, COMMITMENT, ETC.— FORMS. 1963 FORM No. 1300 — Subpoena. (California.) [Title of court.] The People of the state of California ") in behalf of , > a delinquent [or dependent] child. J The people of the state of California to : We command you, that all and singular business and excuses being laid aside, you appear and attend our superior court of the state of California, in and for the county of , the day of , 19 , at o'clock M., then and there to testify in the above-entitled matter now pending in said superior court , and for a failure to attend you will be deemed guilty of a contempt of court. Witness the Hon. , judge of the superior court, in and for the county of , and the seal of said court, this day of ,19 . Attest my hand and seal of said court, the day and year last above written. , Clerk. [Seal.] By , Deputy Clerk. FORM No. 1301 — Sheriff's certificate of service of subpoena. (California.) Office of the Sheriff of the J county of , > state of California. ) I hereby certify that I served the within subpoena on the day of , 19 , on , being the witness [or witnesses] named in said subpoena, at , in the county of , by showing the original to said witness [or witnesses] personally and informing him [or them] of the contents thereof. [Date.] , Sheriff. By , Deputy Sheriff. FORM No. 1302 — Commitment of dependent child. (California.) [Title of court.] In the matter of a dependent child. The above-named , having been regularly brought before the above-entitled court upon petition duly verified and filed herein, as 1964 JUVENILE COURTS. [Tit. XVIII. provided by law, said petition showing that said is within the said county of , and is a dependent child within the meaning of the law, and due notice of the hearing of said petition having been given as required by law and the order of this court, and due return having been made on the citation issued herein, upon a full hearing of said petition and of the case, it appearing to the satisfaction of the court that said is under the age of sixteen years, to wit, of the age of , and that he resides within said county of , and is a dependent child within the meaning of the law; and it further appearing that it is for the best interest of said child that he be committed to the care of , and that said is willing to receive said child, if committed thereto by this court : Now, therefore, it is hereby ordered, adjudged, and decreed, that said is a dependent child within the meaning of the law, and that he should be, and he is, hereby committed to the care of , for a period of from the date hereof. Done in open court, this day of , 19 . S. T., Judge. FORM No. 1303 — Commitment of delinquent child. (California.) [Title of court.] In the matter of a delinquent child. The above-named , having been brought before the superior court of the state of California, in and for the county of , upon the order and certificate of the justice court of township of said county, as a delinquent child, charged in the court with the offense of , and due notice of the hearing of said charge having been given as required by law and the order of this court, and due return having been made on the citation issued herein, upon a full hearing in this court had on the day of , 19 , it appearing that it is for the best interest of said that he should be committed to the care of for the period of : Now, therefore, it is hereby ordered and adjudged, that said be and he is hereby committed to the care of , for the period of from the date of this order. Done in open court, this day of , 19 . S. T., Judge. Cn. CXLVIII.] ORDERS, RETURNS, ETC.— FORMS. 1965 FORM No. 1304 — Bench warrant. (California.) [Title of court and cause.] State of California,") County of . j The people of the state of California to any sheriff, constable, mar- shal, policeman, or special police officer in this state : A verified petition having been filed on the day of t 19 , charging , a child under the age of sixteen years, with being a child : You are therefore commanded forthwith to arrest the above-named and bring before this court, or, if the court be not in session, that you keep in some suitable place pending the further order of this court. Witness my hand and the seal of the court, this day of , 19 . S. T., Judge of Superior Court. FORM No. 1305 — Order directing time of service of bench warrant. (Cali- fornia.) State of California, ") County of . J Superior Court, Dept. This warrant may be served and executed by day or night, and the arrest, as commanded in this warrant, is hereby authorized and directed to be made at any time of the day or night. Dated this day of , 19 . S. T., Judge of Superior Court. FORM No. 1306 — Return endorsed upon bench warrant. (California.) State of California," County of To the Honorable the Superior Court, department No. , of the county of : I, the undersigned , do hereby make this my return to this warrant, and do hereby certify that I have executed and served this warrant by arresting the within-named defendant this day of , 19 , who at the time of the arrest declares his true name 1966 JUVENILE COURTS. [Tit. XVIII. to be ; and I do herewith bring said defendant before the superior court, department No. , as commanded in this warrant. [Date.] [Signature of officer.] FORM No. 1307— Order admitting to bail. (California.) State of Calif ornia,1 s SS. County of .J The within-named may be admitted to bail, by bond, in the sum of $ , or by the deposit with the clerk of this court of $ in coin. [Date.] S. T., Judge of Superior Court. FORM No. 1308 — Order of commitment to school of industry. (From court of record, California.) State of California,^) County of .j , a boy of the age of years, having been found guilty by the superior court of the state of California, in and for the county of , of the offense of , and he being, in the opinion of the court, a fit subject for commitment to the school of industry at , the court doth now suspend judgment [or sentence, as the case may be] ; and It is ordered, that the said be and he is hereby committed to the said school of industry, at , until he reaches the age of twenty-one years, unless sooner discharged, as by law provided. It is further ordered, that , sheriff of County, do forth- with take into his custody the said and deliver him to the superintendent of the said school of industry at , together with this commitment. And this is to authorize the superintendent of said school of industry to receive and safely keep the said until he reaches the age of twenty-one years, or until he is legally discharged. Witness the Hon. , judge of the superior court of County, this day of , 19 . [Seal.] , Clerk. By , Deputy Clerk. Witness my hand this day of , 19 . [Judge's signature.] Ch. CXLVIII.] COMMITMENTS, ETC.— FORMS. 1907 [Endorsement of receipt of commitment.] Received from , [deputy] sheriff of County, , this y ' ' [Signature], Superintendent School of Industry. [Request for Information concerning delinquent endorsed on commitment.] Under the California practice, the committing magistrate is gener- ally requested to furnish to the school, upon the oath of the defend- ant or some competent witness, the following information : Date of birth: . Place of birth: If foreign born, state country, and number of years he has been in the United States: Parents — Divorced? . Living apart? a Father: Name, . Living? Address: Place of birth— United States? . Foreign? If foreign born, state country, and number of years he has been in the United States: Occupation: Character — Intemperate? . In jail or prison? « Mother: Name, . Living? Address: [State whether divorced, re-married, or living apart from husband.] Place of birth— United States? . Foreign? If foreign born, state country, and number of years she has been in the United States: Character — Intemperate? . In jail or prison? If parents are dead, or lost, name and address of guardian or near relatives: < Defendant's character — Does he use tobacco? . Cigarettes? . Intemperate? Former convictions [if any]: * [Verification.] [Signature.] FORM No. 1309 — Order of commitment to boys' school of industry. (From court of limited jurisdiction — California.) State of California,") ( County of .J , a boy of the age of years, having been found guilty by the court of the county of , state of California, a court of competent jurisdiction, of the offense of , and he being, in the opinion of the court, a fit subject for commitment to the school of industry, at , the court doth now suspend judgment [or sentence, as the case may be] ; And conformable to the provisions of an act of the legislature of the state of California, entitled "An act to establish a school of industry, to provide for the management and maintenance of the 1968 JUVENILE COURTS. [Tit. XVIII. same, and to make an appropriation therefor, ' ' approved , 19 y and the several acts amendatory thereof or supplemental thereto : It is ordered, that the said be and he is hereby committed to the said school of industry, for the term of years, unless sooner discharged, as in said act provided. It is further ordered, that , sheriff of County, do forth- with take into his custody the said , and deliver him to the superintendent of the said school of industry, at , Cali- fornia, together with this commitment. And this is to authorize the superintendent of said school of industry to receive and safely keep the said for the period of years, or until he is legally discharged. [Date.] S. T., Judge of the Court of the city of [Approval of foregoing commitment by superior judge.] State of California,^) > ss. County of . j The commitment of the within-named to the school of industry, at , for the period within named, is hereby approved by me, judge of the superior court of the county aforesaid, this day of , 19 . Attest : S. T., Judge. , Clerk. By , Deputy Clerk. FORM No. 1310 — Affidavit on application for a permit for a minor child to work. (California.) [Title of court and cause.] State of California,") County of . j , being first duly sworn, says: That he is the [here state if parent or guardian] of , a minor child; that said child is over the age of twelve years, to wit, of the age of years, and that the parent [s] of said child is [are] incapacitated from perform- ing any labor through illness. Subscribed and sworn to before me, this day of , 19 . [Seal.] , County Clerk. By , Deputy Clerk. . ss. Ch. CXLVIII.] ORDERS, ETC.— FORMS. 1969 FORM No. 1311 — Recommendation that permit issue. [Title of court and cause.] 1 hereby certify, that I have investigated the case of , and recommend that a permit be issued allowing said child to work, said child being able to read and write. C. D., Probation Officer. By , Deputy. FORM No. 1312 — Order granting permit. [Title of court and cause.] In accordance with the above sworn statement and recommenda- tion, the above-named is permitted to work for hours per day between the hours of 7 o'clock A. M. and 10 o'clock P. M., at such occupations as are or may hereafter be permitted and authorized by law. This permit to be good for one year from the date hereof. iDate.] S. T., Judge of the juvenile department of the superior court of the county of , state of California. TABLE OF CASES [References are to pages.] Abadie v. Carrillo (Cal.), 1277, 1278. Abbott v. Rowan (Ark.), 36. Abraham v. Browder (Ala.), 146. Abrams, In re (Cal.), 1003. A. C. Conn Co. v. Little Suamico Lumber etc. Co. (Wis.), 1669. A. C. L. Haase & Sons etc. v. Merchants' D. T. Co. (Mo.), 62. Ada etc. Co. v. Farmers etc. Co. (Idaho), 1224. Adams v. Haskell (Cal.), 893. Adams v. Messinger (Mass.), 1773- Adams v. Trigg (Mo.), 70. Adler v. Railroad (Mo.), 1263. Adler v. Staude (Cal.), 1937. Aetna Building & L. Assn. v. Randall (Okla.), 333. Afflerback v. McGovern (Cal.), 1649. Agard v. Valencia (Cal.), 1774. Ah Fong v. Sternes (Cal.), 349, 1820. Ah Tong v. Earle Fruit Co. (Cal.), 1323. Akin v. Newell (Ark.), 349. Alain v. Northern Pacific R. R. Co. (Minn.), 1478. Alameda County v. Crocker (Cal.), 1933. Albertoli v. Branham (Cal.), 1582, 1594. Alden v. Carpenter (Colo.), 330. Aldis v. Schleicher (Cal.), 176. Aldrich v. Anchor Coal etc. Co. (Ore.), 619. Aldrich v. Barton (Cal.), 423, 424, 438. Aley v. Railroad Co. (Mo.), 147. Alexander v. Alexander (Ind.), 499. Alexander v. Central L. & M. Co. (Cal.), 67. Alexander v. McDow (Cal.), 130. Alexander v. Monroe (Ore.), 275. Alison v. Goldtree (Cal.), 1157. Allen v. Allen (Cal.), 730, 734. Allen v. Baxter (Wash.), 1710. Allen v. Blanche G. M. Co. (Colo.), 276, 332, 814. Allen v. Church (Iowa), 1936. Allen v. Cook (Iowa), 1936. Allen v. McCarthy (Minn.), 1613. Allen v. Patterson (N. Y.), 1278. Allen v. Transit Co. (Mo.), 1544. Aller v. Aller (N. J.), 1500. Allenspach v. Wagner (Colo.), 36. Alpers v. Bliss (Cal.), 1934. Alpers v. Hunt (Cal.), 1934. Alta Silver Min. Co. v. Alta Placer Min. Co. (Cal.), 68. Altgelt v. Emilienburg (Tex.), 70. Altheimer v. Teuscher (Mo.), 225. Alywin v. Morley (Mont.), 95. Amalgamated G. & L. Co. v. Bay State Z. M. Co. (Mo.), 249, 273. Amer v. Hightower (Cal.), 1604. Ames v. United R. Co. (Mass.), 1492. American Bonding Co. v. Dufur (Wash.), 1432. American Brewing Co. v. City of St. Louis (Mo.), 668, 691. 1293. American Buttonhole Co. v. Mcore (Dak.), 271. American C. Co. v. Eureka Bazaar (S. Dak.), 273. American Copying Co. v. Muleski (Mo.), 333, 1263. American Fire Ins. Co. v. Landfare (Neb.), 1934. American Ins. Co. v. Gilbert (Mich.), 1357. Ames v. San Diego (Cal.), 793. Amis v. Cooper (Ark.), 90. Anable v. McDonald L. & M. Co. (Mo.), 63. Anaheim U. W. Co. v. Ashcroft (Cal.), 1211, 1217. Anderson v. Burchett (Kan.), 1826. Anderson v. Englehart (Wyo.), 753. Anderson v. Hayes (Wis.), 1540. Anderson v. McClellan (Ore.), 1826. Anderson v. Schloesser (Cal.), 611, 1806. Anglo-California Bank v. Field (Cal.), 1821. Anglo-California Bank v. Grangers' Bank (Cal.), 600. Angus v. Robinson's Admr. (Vt.), 1774. Andrus v. Insurance Co. (Mo.), 1357. Angus v. Craven (Cal.), 776, 1794, 1801, 1824. Anthony v. Norton (Kan.), 404, 405. Anthony v. Nye (Cal.), 246. Apker v. City of Hoquiam (Wash.), 670. Arbois v. San Bernardino (Cal.), 649. Archibald v. Lincoln County (Wash.), 202, 203. (1971) 1972 TABLE OF CASES. [References are to pages.] Arkansas etc. R. Co. v. Stroude (Ark.), 1864. Arlington v. Liscom (Cal.), 734. Armstrong, Byrd & Co. v. Crump (Okla.), 128. Arnold v. Pope (Utah), 63, 65. Aronson v. Frankfurt etc. I. Co. (Cal.), 330. Arguello v. Bours (Cal.), 1135, 1773. Argus Print Co., In re (N. Dak.), 600, 1699. Armstrong, Byrd , 201. Nightingale v. Barney (Iowa), 231. Nightingale v. Oregon Cent. R. Co. (Fed.), 162. Nippert v. Wameke (Cal.), 1090. Nix v. Goodhill riowa), 1698. Nixon v. Goodwin (Cal.), 159, 1824, 1889, 1890. Noble v. Blount (Mo.), 270. Noble v. Learned (Cal.), 1025. Noe v. Christy (N. Y.), 1335. Nolan v. Fidelity etc. Co. (Cal.), 68, 269, 1424, 1425, 1929. Nolan v. Hentig (Cal.), 72. Nolton v. Western R. Co. (N. Y.), 61. Nord v. Boston etc. Co. (Mont.), 1460. Norden v. Jones (Wis.), 1030. Norman v. Poole (Ark.), 1701. Norman v. Wells (N. Y.), 407. North Pacific L. Co. v. Lang (Ore.), 226. North St. Louis etc. Assn. v. Obert (Mo.), 1263. Northern Pacific R. Co. v. Hess (Wash.), 368, 1545. Northern Pacific R. Co. v. Pauson (Fed.), 1493. Northrup v. Insurance Co. (Mo.), 73. Northrup v. Mississippi etc. Ins. Co. (Mo.), 70. Northrup v. Wills (Kan.), 271, 272. Noyes, In re (In re Wood, In re Geary, In re Frost), (Fed.), 1865, 1866. Noyes v. Schlegel (Cal.), 182, 1761, 1770, 1905. Nugent v. Powell (Wyo.), 546. Nunn v. Bird (Ore.), 1649. Nutter v. Ricketts (Iowa), 682. Nye v. Weiss (Kan.), 1648. O'Brien v. Big Casino G. M. Co. (Cal.), 273, 1281, 1911, 1913. O'Brien v. Colusa Co. (Cal.), 691, .693. O'Brien v. Quinn (Mont.), 1565, 1742. O'Brien v. Transit Co. (Mo.), 146. O'Connor v. Chicago etc. Co. (Iowa), 1822. O'Connor v. Virginia P. & P. Co. (N. Y.), 600. O'Connor v. Witherby (Cal.), 1700. O'Day v. Sanford (Mo.), 61. Ogdensburgh R. Co. v. Vermont R. Co. (N. Y.), 1811. O'Haire v. Burns (Colo.), 1669. O'Hara v. Chicago etc. R. Co. (111.), 974. O'Hara v. Parker (Ore.), 1810. Ohm v. San Francisco (Cal.), 31, 03. O'Keefe v. Dyer (Mont.), 1105. TABLE OF CASES. 1997 [References are to pages.] Oliphant v. Whitney (Cal.), 1827. Oliphint v. Mansfield (Ark.), 246. Olmstead, Estate of (Cal.), 1900. Olsen v. Birch & Co. (Cal.), 843. Olson v. Osborne (Minn.), 1821. Oleon v. Seattle (Wash.), 974. Olson v. Snake River etc. Co. (Wash.), 130. Olston v. Oregon etc. R. Co. (Wash.), 1500, 1582. Omaha Nat. Bank v. Kiper (Neb.), 1934. Omaha etc. T. Co. v. Tabor (Colo.), 1605. O'Neil v. Garrett (Iowa), 1604. O'Neil v. Magner (Cal.), 32. O'Neill v. Adams (Iowa), 106, 389. Orack v. Powelson (Cal.), 793. Ord v. McKee (Cal.), 1335. Orear v. Clough (Mo.), 1826. Oregon Central R. Co. v. Scoggin (Ore.), 269. Oregon S. L. R. Co. v. Yeates (Idaho), 691. Organ v. Memphis etc. R. R. Co. (Ark.), 80. Orman v. Potter (Colo.), 79. O'Rourke v. Finch (Cal.), 1535, 1878, 1879. Osborn v. Blackburn (Wis.), 32. Osborn & Co. v. Poindexter (Tex.), 146. Oshkosh v. Manchester Co. (Wis.), 1357. O'Sullivan v. Griffith (Cal.), 334, 1398. Otero Canal Co. v. Fosdick (Colo.), 973. Otis v. Superior Court (Cal.), 1866. Ottawa, O. C. & C. G. R. Co. v. Larson (Kan.), 759. Otto v. Young (Mo.), 31, 1105. Overend v. Superior Court (Cal.), 1866. Owen v. Casey (Wash.), 331. Owen v. Frink (Cal.), 246. Owens v. Owens (Tex.), 498. Owens v. Pomona L. & W. Co. (Cal.), 1935. Owens v. Thompson (111.), 1398. Owings v. Turner (Ore.), 66. Owsley v. Matson (Cal.), 794. Pacific Coast Co. v. Wells (Cal.), 692. Pacific Fruit Co. v. Coon (Cal.), 601. Pacific Live Stock Co. v. Isaacs (Ore.), 1604, 1605. Pacific Mutual Life Ins. Co. v. Fisher (Cal.), 514. Pacific Paving Co. v. Bolton (Cal.), 176. Pacific Timber Co. v. Windmill Co. (Iowa), 1263. Paddock v. Somes (Mo.), 36, 147. Paddock-Hawley Co. v. Rice (Mo.), 849. Page v. Smith (Ore.), 650. Palais Du Costume Company v. Beach (Mo.), 1791. Palmer v. Atchison etc. R. Co. (Cal.), 1479. Palmer v. Clark (Wash.), 1262. Palmer v. McMasters (Mont.), 108. Palmer v. Oregon S. L. Co. (Utah), 1605, 1528. Palmer v. Schultz (Wis.), 104. Palmer v. Waterloo (Iowa), 108. Pappe v. Post (Okla.), 105. Paquin v. Milliken (Mo.), 1324. Paragoonah Field etc. Co. v. Edwards (Utah), 1669. Park v. Chaplin (Iowa), 1157. Park v. Detroit Free Press Co. (Mich.), 390. Park v. Richardson (Wis.), 146. Parker v. Bethel Hotel Co. (Tenn.), 276. Parker v. Hayes (Kan.), 329. Parker v. Monteith (Ore.), 396, 405. Parkin v. Scott (Eng.), 1549. Parkison v. Bracken (Wis.), 1135. Parks v. Hays (Colo.), 649. Parlin etc. Co. v. Boatman (Mo.), 271. Parsons v. Joseph (Ala.), 274, 600. Patrick v. Patrick (Wis.), 499. Patterson v. Hayden (Ore.), 404, 406, 407. Paul v. Fulton (Mo.), 200. Payne v. McKinley (Cal.), 747. Payne v. Treadwell (Cal.), 8, 30, 1133, 1134. Pearce v. Foreman (Ark.), 1106. Pearson v. Anderburg (Utah), 231. Peck v. Booth (Conn.), 881. Peck v. Noee (Cal.), 334, 616, 619. Peebles v. Pittsburgh (Pa.), 692. Peek v. Peek (Cal.), 520. Pekin Plow Co. v. Wilson (Neb.), 1604. Pelham v. Commissioners of Finney County (Kan.), 880. Pells v. People (111.), 953. Pembroke v. Logan (Ark.), 1936. Pence v. Sweeney (Idaho), 1701. Pendleton v. Perkins (Mo.), 1594. Pengelly v. Peeler (Mont.), 71. Peninsular T. & F. Co. v. Pacific S. W. Co. (Cal.), 730. Penn Mutual Ins. Co. v. Austin (U. 8.), 276. Penn Mutual L. Ins. Co. v. Ornauer (Colo.), 1356. Pennington v. Meeks (Mo.), 391. Pennowfsky v. Coerver (Mo.), 1864, 1865. Pennoyer v. Neff (U. S.), 843, 1884. Penny v. Fellner (Okla.), 1118. People v. Bank of San Luis Obispo (Cal.), 160, 628, 630, 632, 1713. 1998 TABLE OF CASES. [References are to pages.] People v. Beaudry (Cal.), 747. People v. Carrington (Utah), 1865. People v. Church (111.), 1822. People v. Collins (Cal.), 390. People v. Curtis (Idaho), 72. People v. Dashaway Assn. (Cal.), 833. People v. De Pelanconi (Cal.), 650. People v. Gold Run D. & M. Co. (Cal.), 747. People v. Haggin (Cal.), 650. People v. Jefferds (Cal.), 1869. People v. Kingston (N. Y.), 882. People v. Kuhlman (Cal.), 1866. People v. Martin (N. Y.), 881. People v. May (Colo.), 880. People v. McCue (Cal.), 30. People v. McKenna (Cal.), 1594. People v. News-Times Pub. Co. (Colo.), 1866. People v. Northern Central R. Co. (N. Y.), 881. People v. Oakland W. F. Co. (Cal.), 632, 747. People v. Reclamation Dist. (Cal.), 1811. People v. Stacy (Cal.), 200. People v. State Board of Equalization (Colo.), 879. People v. Stoddard (Colo.), 834. People v. Supervisor (Cal.), 894. People v. Swift (Cal.), 1335. People v. Truckee L. Co. (Cal.), 632, 747. People ex rel. Alexander v. District Court (Colo.), 893. People ex rel. Attorney-General v. Roach (Cal.), 984. People ex rel. Attorney-General v. Stan- ford (Cal.), 834. People ex rel. Daniels v. Henshaw (Cal.), 833. People ex rel. Daniels v. Henshaw (Cal.), 907. People ex rel. Davidson v. Perry (Cal.), 833. People ex rel. Dickson v. Clayton (Utah), 834. People ex rel. Hinckley v. District Court (Colo.), 893. People ex rel. Normal School v. Stat* Board of Equalization (Colo.), 880. People ex rel. Pauls v. District Court (Colo.), 893. People ex rel. Pierce v. Morrill (Cal.), 246. People ex rel. Williams v. Ried (Colo.), 893. People's Bank v. Stewart (Mo.), 73, 128, 329. 1404. People's Bank of New Orleans v. Scalzo (Mo.), 129. People's B. & L. Assn. v. Gillmore (Neb.), 272. People's D. Co. v. *76 L. & W. Co. (Cal.), 244. Pepper v. Southern Pacific Co. (Cal.), 1504. Perego v. White (Tex.), 794. Perez v. San Antonio etc. R. Co. (Tex.), 1544. Perkins v. Baer (Mo./, 244. Perkins v. Brock (Cal.), 72. Perot v. Cooper (Colo.), 330. Peters v. St. Louis etc. R. Co. (Mo.), 1810. Peterson v. Crosier (Utah), 67, 406. Peterson V. Dillon (Wash.), 1865. Peterson v. Hopewell (Neb.), 1293. Peugh v. Davis (U. S.), 730. Pfister v. Milwaukee Free Press Co. (Wis.), 389, 390, 391, 392. Pfister v. Wade (Cal.), 72. Phelps v. Brown (Cal.), 1105. Phelps v. Owens (Cal.), 1396. Phenix v. Bijelich (Nev.), 1885. Phenix Co. v. Pickel (Ind.), 1357. Phoenix Assurance Co. v. Deavenport (Tex.), 170. Phoenix Ins. Co. v. Hamilton (U. S.), 1324. Philadelphia W. & B. Co. v. Quigley (U. S.), 3S9. Philbin v. Denver City Tramway Co. (Colo.), 1527, 1528, 1529. Phillips v. Evans U>io.), 130. Phillips v. Hagart (Cal.), 95, 1134, 1135. Phillips v. xvlaham (Mo.), 274. Phillips v. Mann (Ky.), 368. Phillips v. Pennywit (Ark.), 1324. Phillips v. Price (Cai.), 1593, 1594. Phillips v. Smith (Ariz.), 1582. Phillips v. Welch (Nev.), 893. Phinney v. Phinney (Me.), 734. Pico v. Cuyas (Cal.), 1901. Pierce v. Great Falls etc. R. Co. (Mont.), 1493. Pierce V. Merrill (Cal.), 274. Pierce v. Waller (Tex.), S62. Pierce v. Whiting (Cal.), 32, 1431. Piercy v. Sabin (Cal.), 1398. Pierson v. Truax (Colo.), 1669. Pilz v. Killingsworth (Ore.), 162, 951. Pineland Mfg. Co. v. Guardian Trust Co (Mo.), 65. Pinney v. Nelson (U. S.), 619. Pioneer S. & L. Co. v. Eyer (Neb.), 272 Pittelkow v. Herman (Wis.), 1672. TABLE OF CASES. [References are to pages.] 1999 Pittoek v. Buck (Idaho). 1701. Pittsburgh etc. R. Co. v. Reynolds (Ohio), 1493. Platz v. Cohoes (N. Y.), 520. Plummer v. Weil (Wash.), 1853. Plunkett v. State National Bank (Ark.), 63, 1S36. Polack v. Shafer (Cal.), 1901. Polheim v. Meyers (Cal.), 177. Polk v. James (Ga.), 882. Pollard v. Lyon (U. S.), 391. Pollock v. National Bank (N .T.), 601. Pomeroy v. Fullerton (Mo.), 62. Pomeroy v. Rocky Mountain Ins. etc. Inst. (Colo.), 1355. Poor v. Madison R. P. Co. (Mont.), 1542, 1544. Pool v. Sanford (Tex.), 35, 225, 226. Poorman v. Mills (Cal.), 1397. Porter v. Arrowhead R. Co. (Cal.), 1287. Porter v. Illinois Southern R. Co. (Mo.), 65, 129. Porter v. Lassen Co. L. & C. Co. (Cal.), 1335. Porter v. Pecos etc. R. Co. (Tex.), 61. Port Townsend v. Lewis (Wash.), 1869. Post v. Campbell (Wis.), 108. Post v. Davis (Kan.), 1118. Postal Tel. etc. Co. v. Harriss (Tex.), 36, 145. Poteet v. Blossom O. & C. Co. (Tex.), 1540, 1541. Potlatch L. Co. v. Runkel (Idaho), 225, 1701. Poulson v. Colliep (Mo.), 35. Powder River L. S. Co. v. Lamb (Neb.), 334. Powell v. Crawford (Mo.), 390. Powell v. Gott (Mo.), 130. Powers v. Braly (Cal.), 1827. Pownell v. Hall (Cal.), 735. Pratt v. Taunton C. Mfg. Co. (Mass.), 601. Prewitt v. Wilson (Iowa), 391. Prey v. Stanley (Cal.), 246. Price v. Citizens State Bank (Okla.), 728. Price v. Doyle (Minn.), 951. Price v. Greer (Ark.), 107. Price v. Hallett (Mo.), 270. Price v. Metropolitan S. R. Co. (Mo.), 1493, 1543. Price v. Mining Co. (Mo.), 70. Price v. Texas R. D. Co. (Tex.), 270. Priest v. Deaver (Mo.), 1263. Prince v. Lamb (Cal.), 1774. Prince v. Lynch (Cal.), 619. Providence Jewelry Co. v. Crowe (Minn.), 1578, 15S3. Prunty v. Consolidated Fuel etc. Co. (Kan.), 71. Puckett v. National Ann. Assn. (Mo.), 1263. Pugmire v. Diamond Coal etc. Co. (Utah), 1503. Pullis v. Somerville (Mo.), 36, 1295. Quarton v. American Law Book Co. (Iowa), 1263, 1287. Race v. Oldridge (111.), 403. Racouillat v. Rene (Cal.), 129. Radich v. Hutchins (U. S.), 691. Rafferty v. Davis (Ore.), 269, 1135. Raiche v. Morrison (Mont.), 1255. Railroad Commissioner of Texas v. Gal- veston Chamber of Commerce (Tex.j, 691. Railway Co. v. Fire Assn. (Ark.), 271. Raisor v. Chicago etc. R. Co. (111.), 1504. Raley v. Umatilla County (Ore.), 1791. Ralston v. Bank of California (Cal.), 600. Ramirez v. Main (Ariz.), 1290. Ramp v. Metropolitan Street R. Co. (Mo.), 1544. Ramsey County Commrs. v. Brisbin (Minn.), 64. Ramsey v. Johnson (Wyo.), 181. Rand v. Walker (U. S.), 201. Randall v. Duff (Cal.), 244, 734. Randall v. Fox (Ariz.), 1882, 1885. Randolph v. Kraemer (Cal.), 1811. Rankin v. Ekel (Cal.), 693. Rape v. Heaton (Wis.), 32. Ray v. Hogeboom (N. Y.), 682. Raymond v. Blancgrass (Mont.), 64. Raymond v. Railway Co. (Ohio), 127. Raynor v. Drew (Cal.), 734. Reading v. Reading (Cal.), 498. Read's Admrs. v. Cramer (N. J.), 1790. Reardon v. San Francisco (Cal.), 670. Reaves v. Oliver (Okla.), 1671. Reaves v. Territory (Okla.), 747. Reavis v. Cowell (Cal.), 162. Reay v. Heazelton (Cal ), 1827. Reclamation Dist. v. Phillips (Cal ) 1237. Reclamation Dist. v. Sherman (Cal.), 1237, 1936. Redfield v. Oakland Cons. St. R. Co. (Cal.), 433. Redemeyer v. Henley (Cal.), 1366. Redington v. Redington (Colo.), 499. Redmond v. Peterson (Cal.), 440. Redwood City Salt Co. v. Whitney (Cal.), 66, 1283. Reece v. Roush (Mont.), 1135. 2000 TABLE OF CASES. [References are to pagfes.] Reed v. Muscatine (Iowa),, 62. Reed v. Northfield (Mass.), 403. Reed & Co. v. Harshall (Cal.), 269, 333. Rees v. Cupp (Ind.), 406. Rees v. Storms (Minn.), 127. Reformed Dutch Church v. Brown (N. Y.), 1263. Rego v. Van Pelt (Cal.). 1133. Reidy v. Scott (Cal.), 1285. Reifschneider v. Beck (Mo.), 1870. Reiley v. Timme (Wis.), 391. Reinhart v. Lugo (Cal.), 822. Reliance M. Ins. Co. v. Sawyer ^Mass.), 272. Remington v. Cole (Cal.), 1430. Remmers v. Remmers (Mo.), 45, 184, 1554. Remy v. Olds (Cal.), 32, 1237. Renfro v. Fresno City R. Co. (Cal.), 1484. Revalk v. Kraemer (Cal.), 1179. Reynolds v. Hosmer (Cal.), 1396. Reynolds v. Jourdan (Cal.), 1287. Reynolds v. Lincoln (Cal.), 80, 1157. Rhinebart v. Whitehead (Wis.), 368. Rhodes v. Holladay-Klotz Co. (Mo.), 36. Rhodes v. Hutchins (Colo.), 1367. Rice v. Bush (Colo.), 1885. Rice v. Savery (Iowa), 1335. Rice v. Whitmore (Cal.), 760. Richards v. Gaskill (Kan.), 1648. Richardson v. Bricker (Colo.), 274. Richardson v. Hittle (Ind.), 332. Richardson v. Loupe (Cal.), 433. Richey v. Haley (Cal.), 1565, 1640. Richter v. Jerome (U. S.), 201. Riciotto v. Clement (Cal.), 1649. Rickey L. & C. Co. v. Glader (Cal.), 1182, 1221. Rider v. Brown (Okla.), 881. Rife v. Reynolds (Mo.), 64. Riley v. Norman (Ark.), 80. Riley v. Pearson (Ore.), 35. Riley v. Township of Garfield (Kan.), 880. Rinard v. Railroad (Mo.), 146. Rio Grande County v. Phye (Colo.), 649. Rippee v. Railroad (Mo.), 107. Rippstein v. Insurance Co. (Mo.), 68. Risley v. Gray (Cal.), 331. Roach v. Richardson (Ark.), 108. Roanoke St. R. Co. v. Hicks (Va.), 1773. Robb v. Dobrinski (Okla.), 1649. Robb v. Vos (U. S.), 1583. Robbins v. Butler (Colo.), 1853. Robbins v. Deverill (Wis.), 200. Roberts v. Colorado Springs etc. R. Co. (Colo.), 1885. Roberts v. Neale (Mc), . Roberts v. Taylor (Neb.), 1615. Robertson, Ex parte (Tex.), 893. Robertson v. Bell (Kan.), 1003. t Robinson v. Brinson (Tex.), 730. Robinson v. Grant (Iowa), 66. Robinson v. Hall (Kan.), 792. Robinson v. Kindley (Kan.), 1333. Robinson v. Levy (Mo.), 35, 129, 1810. Robinson v. Powers (Ind.), 406, 407. Robinson v. Robinson (Cal.), 497. Robinson v. Superior R. T. Co. (Wis.), 1743. Robinson v. Templar Lodge, I. O. O. F. (Cal.), 1263. Robinson v. Western Pacific R. Co. (Cal.), 1545. Roby v. Shunganunga Drainage Dist. (Kan.), 1237. Roche v. Baldwin (Cal.), 1003. Roddy v. Missouri Pacific R. Co. (Mo.), 1248. Rodgers v. Insurance Co. (Mo.), 1357. Rodigues v. Trevino (Tex.), 1701. Rogers v. Cherrier (Wis.), 682. Rogers v. Duff (Cal.), 1333. Rogers v. Duhart (Cal.), 759. Rogers v. Kimball (Cal.), 330, 1409. Rogers v. Omaha Hotel Co. (Neb.), 1417. Rogers v. Rogers (N. Y.), 201. Rohrer v. Babcock (Cal.), 1021, 1666. Rollins v. Denver Club (Colo.), 1434. Rooney v. Gray Bros. (Cal.), 67. Roose v. Perkins (Neb.), 1616. Root v. Butte etc. R. Co. (Mont.), 1742. Roots v. Merriwether (Ky.), 334. Roscoe v. Metropolitan St. R. Co. (Mo.), 1543. Rose v. Rose (Cal.), 499, 514. Rosenberg v. Durfree (Cal.), 425. Rosencrantz v. Rogers (Cal.), 235. Rosenthal v. Ogden (Neb.), 1270. Ross v. Cornell (Cal.), 1324. Ross v. Craven (Neb.), 334. Ross v. Mineral Land Co. (Mo.), 107. Rothmiller v. Stein (N. Y.), 1582. Rough v. Breitung (Mich.), 272. Roussin v. Stewart (Cal.), 1153. Rowe v. Blake (Cal.), 33. Rowell v. Smith (Wis.), 499. Rubio Canon L. & W. Assn. v. Everett (Cal.), 788. Rudolph v. Saunders (Cal.), 1699. Rugg v. Lemley (Ark.), 33. Ruiz v. Norton (Cal.), 183. Rumping v. Rumping (Mont.), 498, 499. Rundhtry r. 1Bo1 'djS"" 'Oal.V »sn sb» 1S5i. TABLE OF CASES. 2001 [References are to pages.] Ruppel v. United R. of San Francisco (Cal.), 1504. Russell v. Chamberlain (Idaho), 355. Russell v. Chicago etc. R. Co. (Mont.), 1937. Russell v. Railroad Co. (Mo.), 1883. Russell v. Whipple (N. Y.), 1397. Russell v. Wilson (Iowa), 1671. Rutenbeck v. Hohn (Iowa), 602. Ryan v. North Alaska S. Co. (Cal.), 32. Ryder-Gougar Co. v. Garretson (Wash.), 31, 106. Ryer v. Fletcher R. Co. (Cal.), 822. Sabine v. Fisher (Wis.), 433. Sachsel v. Farrar (111.), 226. Sage v. Culver (N. Y.), 64. Saint v. Guerrerio (Colo.), 1224. Salisbury v. Barton (Kan.), 1604. Sallee v. St. Louis (Mo.), 670. Salmon v. Hoffman (Cal.), 1335. Salmon v. Mills (Fed.), SO. Salmon v. Rathjens (Cal.), 1503. Sampson v. Ohleyer (Cal.), 1901. Samson v. Greenough (Iowa), 1615. San Benito Co. v. Whitesides (Cal.), 747. San Bernardino Inv. Co. v. Merrill (Cal.), 601. Sanderson v. Billings Water Co. (Mont.), 1532. San Diego v. Riverside (Cal.), 649. San Diego Bank v. Goodsell (Cal.), 822. Sandovial v. Randolf (Ariz.), 1935. San Francisco v. Ford (Cal.), 693. San Francisco Breweries v. Schurtz (Cal.), 1334. San Francisco etc. R. Co. (Cal.), 1938. San Joaquin etc. C. & I. Co. v. Fresno F. & I. Co. (Cal.), 1238. San Jose v. Fulton (Cal.), 1901. San Jose S. D. B. v. Bank of Madera (Cal.), 730. Sannoner v. Jacobson (Ark.), 33. San Pedro Lumber Co. v. Reynolds (Cal.), 582. Santa Rosa Bank v. Paxton (Cal.), 30, 34. 1288. Sargent v. Union Fuel Co. (Utah), 1503. Sargent v. Wilson (Cal.), 729. Satterberg t. Minneapolis etc. R. Co. (N. Dak.), 202. Sauter v. Leveridge (Mo.), 107, 1396. Savage v. Salem Mills Co. (Ore.), 1251. Savings Bank v. Burns (Cal.), 34. Savings Bank v. Central Market (Cal.), 735. Sayles v. Central Nat. Bank (N. Y.), 600. Say ward v. Houghton (Cal.), 1773. Scammon v. Denlo (Cal.). 1003. Scarborough v. Smith (Kan.), 822. Scaritt Estate Co. v. Schmelzer Arms Co. (Mo.), 89. Schaad v. Robinson (Wash.), 730. Schade v. Connor (Neb.), 432. Schaufele v. Doyle (Cal.), 670. Schecter v. White (Colo.), 36. Schedel, In re (Cal.), 1935. Scheerer & Co. v. Deming (Cal.), 1857. Schemerhorn v. Jenkins (N. Y.), 433. Schilling v. Roominger (Colo.), 33. Schillinger Bros. & Co. v. Bosch-Ryan Grain Co. (Iowa), 91. Schillinger etc. Co. v. Arnott (N. Y.), 953. Schmidt v. Brieg (Cal.), 276. Schmidt v. Chittenden (Cal.), 781. Schneider v. Market Street R. Co. (Cal.), 1496, 1506, 1546, 1858, 1876. Schnitzier v. Fourth Nat. Bank (Kan.), 1447. Schoeffler v. Schwarting (Wis.), 1671. Scholl v. Grayson (Mo.), 1742. Schomberg v. Walker (Cal.), 389, 391. Schreiner v. Grant Brothers (Cal.), 1460. Schroder v. Montana Iron Works (Mont.), 1459, 1544. Schultheis v. Nash (Wash.), 1827. Schuyler Nat. Bank v. Gadsden (U. S.), 1294. Schwah v. Railroad (Mo.), 107. Schwerdtle v. County of Placer (Cal.) 30. Scott v. Armstrong (U. S.), 1135. Scott v. Frost (Colo.), 1852. Scott v. Wood (Cal.), 72. Scovill v. Glasner (Mo.), 105, 107. Scrivani v. Dondero (Cal.), 1870. Scroggs v. Tutt (Kan.), 1029. Scroufe v. Clay (Cal.), 1397. Scudder v. Atwood (Mo.), 73. Scuny v. Porter (Kan.), 1648. Seamans v. Temple Co. (Mich.), 272. Sears v. Starbird (Cal.), 1287. Seaton v. Grimm (Iowa), 616. Seattle C. Co. v. Haley (Wash.), 35. Seattle etc. R. Co. v. Bowman (Wash.), 225, 599. Seay v. Sanders (Mo.;, 1810. Seebach v. Kuhn (Cal.), 1094. Seip v. Tilgham (Kan.), 246. Sellars v. Foster (Neb.), 1616. Sellick v. DeCarlow (Cal.), 1900. Sellman v. Wheeler (Md.), 368. Senn v. Connelly (S. Dak.), 1401, 1820. Senter v. Davis Cal.), 1773, 1774. Senter v. De Bernal (Cal.), 1935. 2002 TABLE OF CASES. [References are to pages.] Serensen v. Northern Pacific R. Co. (Fed.), 203. Serry v. Curry (Neb.), 519. Settlemire v. Newsome (Ore.), 735. Severns v. English (Okla.), 1664, 1671. Seyfried v. Knoblauch (Colo.), 1089, 1090. Seymour v. Shea (Iowa), 329. Shandy v. McDonald (Mont.), 1601. Shannon v. Austin (Mo.), 274. Shakespear v. Smith (Cal.), 244. Sharon v. Sharon (Cal.), 515, 1932, 1935, Sharp v. Bowie (Cal.), 1774. Sharp v. McColm (Kan.), 729, 1811. Shattuck v. Myers (Ind.), 407. Shattuck & Desmond W. Co. v. Gillelen (Cal.), 609, 613. Shaw v. Proffit (Ore.), 1238. Shawnee L. & P. Co. v. Sears (Okla.), 31. Shawnee Tire Ins. Co. v. Knerr (Kan.), 170. Shearer v. Guardian Trust Co. (Mo.), 1884. Shearer v. Weaver (Iowa), 546. Shedoudy v. Spreckels Bros. C. Co. (Cal.), 101, 1599. Sheehan v. Pierce i.N. Y.), 390. Sheerer v. Deming (Cal.), 947. Sheibley v. Fales (Neb.), 391. Sheibley v. Nelson a\ T 3b.), 390, 391. Shepherd v. Padgitt (Mo.), 1248. Shelby County v. Simmonds (Iowa), 200. Sheldon v. Atki'son (Kan.), 1133. Sheldon v. Steamship Uncle Sam (Cal.), 368. Shelley v. Smith (Iowa), 1780. Shelton v. Berry (Tex.), 1850. Shemwell v. McKinney (Mo.), 1S64, 1865. Sherman v. County Commissioners (Colo.), 1669. Sherman N. Co. v. Aughenbaugh (Minn.), 272. Sherwood v. Wallin (Cal.), 266, 598, 1811. Shinn v. Guy ton & H. M. Co. (Mo.), 79. Shinnick v. Marshalltown (Iowa), 274. Shively v. Eureka T. G. Min. Co. (Cal.), 601. Shively v. Semi-Tropic L. & W. Co. (Cal.), 1105. Shoemaker v. Acker (Cal.), 1742. Shoning v. Coburn (Neb.), 1427, 1428. Shopbell v. Boyd (Cal.), 1573, 1574, 1579. Shuler v. Allam (Colo.), 1885. Shuler v. Railroad Co. (Mo.), 146. Shuster v. Overturf (Kan.), 1932. Sichler v. Look (Cal.), 1901. Sierra Co. v. Butler (Cal.), 649, 747. Sierra L. & C. Co. v. Brlcker (Cal.), 1245. Sierra Union W. & M. Co. v. Wolff (Cal.), 1899. Sievers v. Root (Cal.), 670. Sifton v. Sifton (N. Dak.), 510. Sigel-Campion etc. Co. v. Holly (Colo.), 1604, 1605. Silva v. Blair (Cal.), 1118, 1853. Silver Camp Mining Co. v. Dickert (Mont.), 1773, 1810. Simon v. Calfee (Ark.), 69. Simonson v. Burr (Cal.), 1179. Simpson v. First Nat. Bank (Fed.), 730. Simpson v. Remington (Idaho), 72. Simpson v. Simpson (.Cal.), 792. Simpson etc. Furniture Co. v. Moore^ (Ark.), 162. Sims v. New York College (N. Y.), 433. Singer v. Cavers (Iowa), 66. Singer Piano Co. v. Walker (Iowa), 730. Sinnett v. Moies (Iowa), 1671. Sioux City v. Railway (Iowa), 270. Sisk v. Caswell (Cal.), 1236. Siskiyou County Bank v. Hoyt (Cal.), 1831. Siter v. Jewett (Cal.), 72. Sixth District A. Assn. v. Wright (Cal.), 791. Skinner v. Beatty (Cal.), 1901. Skinner v. Knickrehm (Cal.), 226, 432. Skyrme v. Occidental M. etc. Co. (Nev.), 1417. Slafter v. Concordia F. I. Co. (Iowa), 61, 62, 66, 1355, 1357. Slattery v. Hall (Cal.), 1396. Slaughter v. Railroad (Mo.), 1742. Sloan v. Edwards (Md.), 368. Sloane v. Southern California R. Co. (Cal.), 1492. Sloman v. Great Western R. Co. (N. Y.)» 183. Smalley v. Taylor (Tex.), 226. Smalley v. Yates (Kan.), 880. Smart v. Haring (N. Y.), 433. Smith v. Allen (Tex.), 226. Smith v. Appleton (Wis.), 1671. Smith v. Atkinson (Colo.), 668. Smith v. Babcock (Fed.), 1790. Smith v. Billings Sugar Co. (Mont ), 1262. Smith v. Chiles (Tex.), 1398. Smith v. Clyne (Idaho), 1827. Smith v. Cumins (Iowa), 1S83. Smith v. Dragert (Wis.), 104. Smith v. Fairchild (Colo.), 1333. Smith v. Griswold (Iowa), 1582. Smith v. Hill (Cal.), 919. TABLE OF CASES. 2003 [References are to pages.] Smith v. Lawrence (Cal.), 244, 274, 1397. Smith v. Logan (Nev.), 200. Smith v. Los Angeles & P. R. Co. (Cal.), 1742. Smith v. McDonald (Cal.), 432. Smith v. Milburn (Iowa), 406. Smith v. Montoya (N. Mex.), 1810, 1884. Smith v. Nescatunga Town Co. (Kan.), 1932. Smith v. Ogden etc. R. Co. (Utah), 1544. Smith v. Pedigo (Ind.), 1157. Smith v. Pullman Co. (Mo.), 128. Smith v. Redmond (Iowa). 90. Smith v. Short (Iowa), 1582. Smith v. Sims (Mo.), 1582. Smith v. Smith (80 Cal.), 1134. Smith v. Smith (88 Cal.), 1820. Smith v. Smith (124 Cal.), 498. Smith v. Smith (Kan.), 759. Smith v. Smith (Neb.), 497. Smith v. Smith (Ore.), 1650. Smith v. Westerfield (Cal.), 1063. Smith v. Young (Mo.), 405, 407. Snedden v. Harmes (Colo.), 668. Snyder v. Wabash R. Co. (Mo.), 184. Snyder v. Wheeler (Kan.), 73. Soden v. Murphy (Colo.), 128. Solomon R. Co. v. Jones (Kan.), 1458. Sorensen v. Sorensen (Neb.), 1934. Sorrels v. Self (Ark.), 108. South Beach L. Assn. v. Bergle (Cal.), 1901. South End Min. Co. v. Tinney (Nev.), 1135. South Tacoma F. & T. Co. v. Tacoma R. & P. Co. (Wash.), 130. South Texas Tel. Co. v. Huntington (Tex.), 70, 1287. South Yuba Water Co. v. Rosa (Cal.), 65. Soule v. Soule (Cal.), 500. Southern California R. Co. v. Superior Court (Cal.), 893. Southern California I. Co. v. Wilshire (Cal.), 1224. Southern Development Co. v. Silva (U. S.), 1582. Southern Missouri etc. R. Co. v. Wyatt (Mo.), 1864, 1865, 1883, 1884. Southern Pacific R. Co. v. Doyle (Fed.), 730. Southern Pacific Co. v. Prosser (Cal.), 274. Southern Pacific Co. v. Wilson (Ariz.), 1503. Sparks v. Bell (Cal.), 1901. Spaulding v. Douglas Co. (Neb.), 63. Spaur v. McBee (Ore.), 1135. Specht v. Allen (Ore.), 1582. Spect v. Spect (Cal.), 1134. Speelman v. Chaffee (Colo.), 1648. Speer v. Burlingame (Mo.), 1820. Speidel v. Henrici (U. S.), 275. Spencer, Ex parte (Cal.), 893. Sperry v. Cook (Mo.), 7, 1439. Spicer v. Earl (Mich.), 555. Spieker v. Lash (Cal.;, 1613. Spokane Valley L. & W. Co. v. Arthur D. Jones & Co. (Wash.), ±, 107, 333, 729, 1398, 1869. Steamboat Pembinaw v. Wilson (Iowa), 231. Stebbins v. Eddy (Fed.), 1790. Steenerson v. Waterbury (Minn.), 127. TABLE OF CASKS. 2005 [References are to pages.] Steltz v. Morgan (Idaho), 760. Sternberg v. Levy (Mo.), 61. Stephens v. American F. Ins. Co. (Utah), 35. Stephens v. Monongahela Bank (U. S.), 1294. Stephenson v. Southern Pacific Co. (Cal.), 1541. Stern v. State Board (Wash.), 649. Stetson v. Briggs (Cal.), 72. Stevens v. Cheney (N. Y.), 1615. Stevens v. Fitzpatrick (Mo.), 66, 67, 231, 1089, 1157. Stevenson v. Belknap (Iowa), 405, 407. Stevenson v. Smith (Cal.), 747. Stewart v. Budd (Mont), 329. Stewart v. Burbridge (Cal.), 1929. Stewart v. Clinton (Mo.), 31. Stewart v. Fowler (Kan.), 1333. Stewart v. Johnston (Iowa), 1671. Stich v. Dickenson (Cal.), 1701. Stiles v. Cain (Cal.), 1774. Stiles v. City of Guthrie (Okla.), 246. Stimson M. Co. v. Hughes M. Co. (Cal.), 1286, 1912. Stivers v. Home (Mo.), 8. St. Louis Assn. v. Delano (Mo.), 333. St. Louis etc. R. Co. v. Carter (Mo.), 1864. St. Louis etc. R. Co. v. Franks (Tex.), 1493. St. Louis etc. R. Co. v. Furlow (Ark.), 1820. St. Louis etc. R. Co. v. Grimsley (Ark.), 1544. St. Louis etc. R. Co. v. Haist (Ark.), 1504. St. Louis etc. R. Co. v. Holmes (Ark.), 10S. St. Louis etc. R. Co. v. Hoover (Kan.), 1527. St. Louis etc. R. Co. v. Lewright (Mo.), 973. St. Louis etc. R. Co. v. Managan (Ark.), 1460. St. Louis etc. R. Co. v. McDermitt (Ark.), 1701. St. Louis etc. R. Co. v. McNamare (Ark.), 1504, 1816, 1820. St. Louis etc. R. Co. v. Philpot (Ark.), 1544. St. Louis etc. R. Co. v. Richter (Ark.), 90. St. Louis etc. R. Co. v. State (Ark.), 69. St. Louis etc. R. Co. v. Thacher (Kan.). 183. Jury's PI.— 127. St. Louis etc. R. Co. v. Tiernan (Kan.), 1276. St. Louis etc. R. Co. v. Toomey (Kan.), 1540. St. Louis etc. R. Co. v. Townsend (Ark.), 1864. St. Louis etc. R. Co. v. Wilcox (Tex.), 1864. St. Louis etc. R. Co. v. Willis (Kan.), 1502. St. Louis etc. R. Co. v. Woodward (Ark.), 1864. St. Louis Nat. Bank v. Gay (Cal.), 90. St. Paul Typothetae v. St Paul Book- binders' Union (Minn.), 231, 232. St. Sure v. Lindsfelt (Wis.), 32. Stoakes v. Larson (Minn.), 1292. Stockton Automobile Co. v. Confer (Cal.), 655. Stockton B. & L. Assn. v. Chalmeri (Cal.), 732, 1030. Stockton L. Co. v. Schuler (Cal.), 953. Stoddard v. Baker (Neb.), 1118. Stoddard v. Tread well (Cal.), 34. Stokes v. Sprague (Iowa), 66. Stone v. McCann (Cal.), 1179. Stone ex rel. St. Louis, I. M. & R. Co. (Mo.), 30. Stoneman etc. Co. v. McComb (Ark.), 760. Storm v. City of Butte (Mont.), 670. Storz v. Finkelstein (Neb.), 1937. Stoudt v. Shepherd (Mich.), 406. Stout v. Calver (Mo.), 1884. Stow v. Schiefferly (Cal.), 34. Stratton Cripple Creek etc. Co. v. Elli- son (Colo.), 1822. Strauch v. Flynn (Minn.), 127, 277. Strayhorn v. Giles (Ark.), 1500. Streator v. Linscott (Cal.), 862. Streeter v. Rush (Cal.), 1743. Stump v. Hornback (Mo.), 1135. Stutsman County v. Mansfield (Dak.), 1293. Suddarth v. Empire Lime Co. (Mo.), 1282. Sukeforth v. Lord (Cal.). 15S2. Summers v. Sullivan (Mont.), 974. Surulerman-Dolson Co. v. Hope (Tex.), 1276. Sundmacher v. Lloyd (Mo.). 36. 1885. Surles v. Sweeney (Ore.), 1650. Sutton v. Cole (Mo.), 1447. Sutton v. Huffman (N. J.), 405. Swamp Land Reclamation Dist. v. Blum- enberg (Cal.), 271. 952, 953, 1232. Swan v. City of lndianola (Iowa), 1671, 1672. 2006 TABLE OF CASES. [References are to pages.] Swan v. Norvell (Wis.), 202. Swan v. Tappan (Mass.), 1548. Sweeny v. Williams (N. J.), 1582. Swett v. Gray (Cal.), 399, 403, 1906, 1934. Swift v. James (Wis.), 64. Swift v. Occidental M. etc. Co. (Cal.), 1934. Swift v. Swift (Cal.), 183. Swope v. Seattle (Wash.), 974. Sykes v. Lawlor (Cal.;, 1504. Sylvester v. Jerome (Colo.), 1669. Taggart Mercantile Co. v. Clack (Ariz.), 793. Tahoe Ice Co. v. Union Ice Co. (Cal.), 1248. Tainter v. Lucas (Wis.), 1671. Tallman v. Ely (Wis.), 1850. Tally v. Parsons (Cal.), 1003. Tappendorff v. Moranda (Cal.), 1134. Tarabino v. Nicoli (Colo.), 1323. Tarbell v. Central Pacific R. Co. (Cal.), 1493. Tate v. Rakow (Neb.), 62. Tate v. Rose (Utah), 37, 794, 1031. Tatum v. Rosenthal (Cal.), 245. Taylor, Ex parte (Cal.), 748. Taylor v. Adair (Iowa), 1701. Taylor v. Bank of Volga (S. Dak.), 225. Taylor v. Branscombe (Iowa), 1594. Taylor v. Cohn (Ore.), 411. Taylor v. Ellenberger (Cal.), 440. Taylor v. Hall (Tex.), 692. Taylor v. Hearst (Cal.), 389. Taylor v. Holmes (U. S.), 599. Taylor v. Manson (Cal.), 664, 671. Taylor v. McClain (Cal.), 734. Taylor v. Modern Woodmen (Wash.), 170. Taylor v. Ranney (N. Y.), 1106. Taylor v. Southerland (Ind. Ter.), 245. Taylor v. Taylor (Iowa), 108. Taylor v. Western Pacific R. Co. (Cal.), 1505. Taylor v. Williams (Colo.), 1105. Teasdale v. Stoller (Mo.), 691. Tebbets v. Fidelity etc. Co. (Cal.), 275. Tell v. Gibson (Cal.), 520. Telle v. Leavenworth etc. R. Co. (Kan.), 1543. Tennessee Mfg. Co. v. James (Tenn.), 555. Terrill v. Terrill (Cal.'). 514. Territory v. Board of Comrs. of Berna- lillo County (N. Mex.), 880. Terry v. Rosell (^.rk.), 80. Terry v. Sickles (Cal.), 1288. Terwilliger v. Wands (N. Y.), 1549. Tessier v. Reed, Jones & Co. (Neb.). 1689. Texas etc. R. Co. v. Gross (Tex.), 108. Texas etc. R. Co. v. Hall (Ark.), 90. Texas etc. R. Co. v. Orr (Ark.), 1505. Texas Western R. Co. v. Gentry (Tex.), 184. The Curtis, (The Camden, The Wel- come,) (Fed.), 843. The Glide (U. S.), 843. The G. & H. Mfg. Co. v. Hall (N. Y.), 1613. Theller v. Such (Cal.), 1063. Thomas v. Carey (Colo.), 330. Thomas v. Holmes (Iowa), 277. Thomas v. Placerville G. Q. M. Co. (Cal.), 1821. Thomas v. State (Idaho), 632. Thomasson v. Mercantile etc. I. Co. (Mo.), 79, 1811, 1826, 1883. Thompson v. Basler (Cal.), 1123. Thompson v. Colvin (Ore.), 71, 1885. Thompson v. Spray (Cal.), 792. Thompson v. White (Colo.), 37, 227. Thorn v. Smith (Wis.), 104. Thornburg v. Thornburg (W. Va.), 1743. Thornton v. Security Co. (Fed.), 1357. Thorson & C. Co. v. Baker (Iowa), 1248. Thurn v. Alta Tel. Co. (Cal.), 183. Tieman v. Sachs (Ore.), 66. Tifft v. State Medical Inst. (Wash.), 1670. Tillman v. Erp (Tex.), 274 Tilton v. James L. Gates L. Co. (Wis.), 1263, 1743. Timkin Co. v. Smith (Iowa), 66. Timson v. Manufacturers' C. & C. Co. (Mo.), 33i Tingly v. Times Mirror Co. (Cal.), 106, 107, 389. Tisdale v. Mitchell (Tex.), 70. Tissot v. Darling (Cal.), 1937. Title Insurance etc. Co. v. Grider (Cal.), 1712, 1713. Tittman v. Green (Mo.), 1430. Titus v. Insurance Co. (N. Y.), 1357. Toby v. Oregon Pac. R. Co. (Cal.), 333. Toledo C. S. Co. v. Young (Idaho), 272. Tooney v. Knoblock (Cal.), 71, 1935. Tootle v. Wells (Kan.), 1280. Tower v. Compton Hill I. Co. (Mo.), 1650. Towle v. Matheus (Cal.), 1743. Towle Bros. v. Quinn (Cal.), 822. Town of Grand River v. Switzer (Iowa), 108, 1791. Town of Santa Monica v. Guidingei (Cal.). 688. TABLE OF CASES. 2007 [References are to pages.] Toy v. Haskell (Cal.) t 1836. Traer v. Whitman (Iowa), 1883. Traynor v. Sielaff (Minn.), 388. Treadwell v. Whittier (Cal.), 1492. Tregear v. Etiwanda Water Co. (Cal.), 600. Trester v. Missouri Pacific R. Co. (Neb.), 973. Treweek v. Howard (Cal.), 35. Trezvant v. Strong (Cal.), 1821. Trickey v. Clark (Ore.), 1870. Trihay v. Brooklyn Lead Min. Co. (Utah), 1457. Trimble v. Fyfer v. Elkin (Mo.), 67. Trimble v. Railroad (Mo.), 329. Trinity County v. Mendocino County (Cal.), 648. Tri-State A. Co. v. Forest Park etc. Co. (Mo.), 272, 273. Troost v. Davis (Ind.), 33. Trope v. Kerns (Cal.), 1901. Troxler v. Buckner (Cal.), 682. Truro v. Passmore (Mont.), 1293. Tucker v. Hawkins (Ark.), 1836. Tuolumne etc. Water Co. v. Columbia etc. Water Co. (Cal.), 1533. Turley v. Thomas (Nev.), 1772, 1773. Turner v. Great Northern R. Co. (Wash.), 1853. Tuthill v. Skidmore (N. Y.), 1417. Tuttle v. Buck (Minn.), 411. Tuttle v. Howe (Minn.), 1417. Tyler v. Houghton (Cal.), 753. Tyler v. Reynolds (Iowa), 546. Unger v. Mooney (Cal.), 805. Union Bank v. Laird (U. S.), 1699. Union etc. Ins. Co. v. Spinks (Ky.), 275. Union Loan etc. Co. v. Farbestein (Mo.), 1864. Union Lumber Co. v. Simon (Cal.), 953. Union National Bank v. Lyons (Mo.), 71. Union Pacific R. Co. v. Harris (Kan.), 14:")?. Union Pacific R. Co. v. United States ! Wyo.), 1643, 1648, 1811. Union R. Co. v. Dull (U. S.), 201. Union R. Co. v. Traube (Mo.), 1263. Union S. Bank v. Dunlap (Cal.), 184. Union Street R. Co. v. Stone (Kan.), 175. Union Trust Co. v. Atchison etc. R. Co. (N. Mex.), 225. Union Trust Co. v. State of California (Cal.), 631. United Investment Co. v. Los Angeles Interurban R. Co. (Cal.), 19:56. United Lead Co. v. J. W. Reedy Ele- vator M. Co. (111.), 272. United R. etc. Co. v. Traube (Mo.), 1263. United Shoe M. Co. v. Ramlose (Mo.), 271. United States v. Beavers (Fed.), 1865. United States v. McDaniels (U. S.), 1811. United States v. Ripley (U. S.), 1811. United States v. Robeson (U. S.), 1811. United States Oil etc. Co. v. Bell (Cal.), 1864. University of California v. Bernard (Cal.), 1622. U. S. Casualty Co. v. Hanson (Colo.), 170. Utley v. Clark-Gardner L. M. Co. (Colo.), 272. Valley Lumber Co. v. McGilvery (Idaho), 141, 142, 334. Van Arsdale v. Edwards (Okla.), 90. Van Arsdale-O. B. Co. v. Foster (Kan.), 33. Vanderslice v. Matthews (Cal.), 1029. Vandervelden v. Chicago etc. R. Co. (Fed.), 1500. Van Duzer v. Van Duzer (Iowa), 497. Van Eps v. Newald (Wis.), 69. Van Patten v. Waugh (Iowa), 108. Vansellous v. Huene (Okla.), 921. Van Vechten v. Hopkins (N. Y.), 391. Varney v. Varney (Wis.), 451. Vassault v. Austin (Cal.), 1153. Vaughan v. Daniels (Mo.), 35. Vaughn v. Hixon (Kan.), 270. Vaule v. Steenerson (Minn.), 682. Veeder v. Baker (N. Y.), 7. Venable v. Wabash W. R. Co. (Mo.), 974. Vernon County v. Stewart (Mo.), 274. Vohs v. Shorthill (Iowa), 1460. Vosburg v. Vosburg (Cal.), 498. Vilas v. Mason (Wis.), 104. Vinton v. Crowe (Cal.), 1S3. Visalia Savings Bank v. City of Visalia (Cal.), 689. Visalia etc. R. Co. v. Hyde (Col.), 601. Vrooman v. Li Po Tai (Cal.), Isl'T. Vukelis v. Virginia Lumber Co. (Minn.), 31, 64, 1458. Waddingham v. Robledo (N. Mex.), 1228, 1670. 1671. Wadleigh v. Phelps (Cal.), 276, 735. Waechter v. Atchison etc. R. Co. (Cal.), 1821. Wakeham v. Barker (Cal.), 1936. Walburn v. Chenault (Kan.), 1429. Waldner v. Bowden State Bank (N. Dak.), 1293. 2008 TABLE OF CASES. [References are to pages.] Wales r. Mower (Colo.), 1335. Walker v. Bamberger (Utah), 601. Walker v. Duncan (Wis.), 1030. Walker v. Files (Ark.), 63. Walker v. Fleming (Kan.), 10S8. Walker v. Fuller (Ark.), 80. Walker v. McCusker (Cal.), 200. Walker v. Pumphrey (Iowa), 36. Walker v. Stone (Iowa), 1671. Walker v. St. Louis (Mo.), 691. Walker v. Whitehead (U. S.), 734. Wallace v. Ah Sam (Cal.), 1743. Walling v. Brown (Idaho), 1885. Walpole, Ex parte (Cal.), 1947. Walser v. Wear (Mo.), 1409, 1864, 1865. Walsh v. McKeen (Cal.), 33. Walsh v. Mayer (U. S.), 1294. Walters v. Denver Cons. Electric Light Co. (Colo.), 1541. Walton, Ex parte (Okla.), 1948. Wanser v. Lucas (Neb.), 1135. Wapello etc. Bank v. Colton (Iowa), 61, 63, 270, 271. Warburton v. Ralph (Wash.), 389. Ward v. Blackwood (Ark.), 390. Ward v. Blythe (Ark.), 1936. Ward v. Clay (Cal.), 34, 123, 124, 125, 130, 1396. Ward v. Flood (Cal.), 411. Ward v. Huggins (Wash.), 1135. Ward v. Kilpatrick (N. Y.), 953. Ward v. Thompson (Iowa), 1616. Ward v. Weeks (Eng.), 1549. Wardell v. McConnell (Neb.), 1615. Warder v. Enslen (Cal.), 734. Warner v. Bates (Wis.), 1580. Warner Elevator Mfg. Co. v. Maverick (Tex.), 951. "Vvarner v. Southern Pacific Co. (Cal.), 1743. Warner v. Warner (Cal.), 1821. Warren v. Hall (Colo.), 1581. Warren v. Hopkins (Cal.), 175. Wasserman v. Sloss (Cal.), 1869. Wasson v. Boland (Mo.), 107, 616. Waterloo v. Waterloo St. R. Co. (Iowa), 1670. Waterman v. Irby (Ark.), 33. Watkins v. Bryant (Cal.), 200, 1802. Watson v. Molden (Idaho), 1582. Watson V. Roode (Neb.), 1246. Watson v. Sutro (Cal.), 514, 1836. Watson v. Watson (Mich.), 406. Watt v. Smith (Cal.), 200. Watts v. Gallagher (Cal.), 732. Weatherly v. Straus (Cal.), 1319. Weaver v. Trustee & W. E. Canal (Ind.), 1335 Weaver v. Wabash etc. Canal (Ind.), 200 Webb v. Gilman (Me.), 368. Weber v. Atchison etc. R. Co. (Kan.), 1502. Weber v. Bullock (Colo.), 1699. Weber v. Dillon (Okla.), 246. Weber v. Kirkendall (Neb.), 1565. Weber v. Tschetter (S. Dak.), 1447. Webster v. Norwegian Min. Co. (Cal.), 203. Wedderspoon v. Rogers (Cal.), 1397. Wegner v. Second Ward Sav. Bank (Wis.), 1648. Weil v. Schmidt (Wis.), 391. Weir v. West (Kan.), 998. Weitzel v. Layson (S. Dak.), 1106. Welch v. Mayer (Colo.), 668. Weld v. Johnson Mfg. Co. (Wis.), 1135. Wellman v. Oregon etc. R. Co. (Ore.), 1502. Wells v. Adams (Mo.), 1883. Wells r. Morro (Ala.), 1106. Wells Fargo & Co. v. Enright (Cal.), 274, 275. Welsh v. Anderson (Mo.), 822. Weltin v. Ins. Co. (N. Y.), 1357. Wemple v. ifosemite G. M. Co. (Cal.), 735. Wendling L. Co. v. Glenwood L. Co. (Cal.), 1603, 1604. Wendover v. Baker (Mo.), 79. Wenzel v. Schultz (Cal.), 1134. Werner v. Ascher (Wis.), 390. Wert v. Strouse (N. J.), 405. Werth v. Springfield (Mo.), 31. Wertheimer etc. Co. v. McDonald (Mo.), 61, 70, 145. West v. Betchel (Mich.), 1287. West v. Crawford (Cal.), 200. West v. Johnson (Idaho), 30. West v. Meserve (N. H.), 682. West v. Moser (Mo.), 1263. West v. Telegraph Co. (Kan.), 79. West v. Western Union Tel. Co. (Kan.), 1479. Western assurance Co. v. Towle (Wis.), 1030. Western Home Ins. Co. v. Thorp (Kan.), 1355. Western L. Co. v. Phillips (Cal.), 432, 433. Western Travelers' A. A. v. Tomson (Neb.), 1934. Western Lnion Tel. Co. v. Bodkin (Kan.), 79. Western Union Tel. Co. v. Davenport (U. S.), 601. TABLE OF CASES. 2009 [References are to pages.] Weston v. Bear River etc. Co. (Cal.), 1699. Weston v. Stoddard (N. Y.), 822. Westwater v. Grace Church (Cal.), 1742. Wetherill v. McCloskey (W. Va.), 1324. Wetmore v. Church (Mo.), 1869. Wetmore v. Hegeman (N. Y.), 200. Wetmore v. San Francisco (Cal.), 1398. Whaley v. Stevens (S. C), 30. Wheatley v. Strobe (Cal.), 226. Wheeler v. Bolton (Cal.), 1934. Wheeler v. Northern Colo. I. Co. (Colo.), 881. Wheeler v. San Francisco etc. R. Co. (Cal.), 1479. Whelan v. Reilly (Mo.), 1324. Wheless v. Meyer etc. Co. (Mo.), 1699. Whitbeck v. Sees (S. Dak.), 1293. Whitby v. Rowell (Cal.), 34, 35. White v. Allatt (Cal.), 200. White v. Chesapeake R. Co. (W. Va.), 1493. White v. Clarke (Cal.), 912. White v. Denman (Ohio), 1790. White v. Gibson (N. Y.), 73. White v. Horton (Cal.), 1177. White v. Lyons (Cal.), 33. White v. McFarland (Mo.), 176, 1029. White v. Merrill (Cal.), 1936. White v. Middlesworth (Mo.), 71. White v. Murtland (111.), 407. White v. Railroad (Mo.), 146, 147. White v. Sage (Cal.), 1773, 1774. White v. Scott (Kan.), 246. White v. Stoner (Mo.), 407. White v. White (Wis.), 31. Whitehouse v. Cowles (Wash.), 389. Whitesett v. People's National Bank (Mo.), 1319, 1933. Whiting v. Root (Iowa), 33. Whitman V. Willis (Tex.), 225, 226. Whitney v. Blackburn (Ore.), 833. Whitney v. Karner (Wis.), 1933. Whittemore v. Judd Linseed etc. Oil Co. (N. Y.), 184. Wicecarver v. Mercantile etc. Co. (Mo.), 67, 68, 79, 1357, 1826. Wichita Nat. Bank v. Maltby (Kan.), 1319. Wickersham, Estate of (Cal.), 1044, 1046. Wieland v. Southern Pacific Co. (Cal.), 1487. Wiggins v. McDonald (Cal.), 8. Wilbur v. Railway (Mo.), 1742. Wilcox v. Jamieson (Colo.), 1287. Wilhite v. Billings etc. Co. (Mont.), 1669, 1743. Wilhite v. Wilhite (Kan.), 437. Wilhoit v. Lyons (Cal.), 1106. Wilkerson v. Farnham (Mo.), 71, ^i. Wilkins v. Stidger (Cal.), 1278. Wllkins v. Tourtellott (Kan.), 1133. Williams v. Anderson (Minn.), 1884. Williams v. Ashe (Cal.), 1417. Williams v. Atchison etc. R. Co. (Cal.), 1899. Williams v. Bailey (Tex.), 1701. Williams v. Baker (Mo.;, 1248. Williams v. Bergin (Cal.), 65, 177. Williams v. Casebeer (Cal.), 353, 360, 361. Williams v. City of San Pedro (Cal.), 790. Williams v. Haines (Iowa), 1500. Williams v. Hall (Cal.), 1883. Williams v. Hawley (Cal.), 1835, 1933. Williams v. Keith (Tex.), 274.. Williams v. Kitchen (Mo.), 1263. Williams v. Lane (Cal.), 1936. Williams v. Southern Pacific R. Co. (Cal.), 1323. Williams v. Sturdemant (Ala.), 1790. Williams v. The Sirius (Fed.), 843. Williams v. Williams (Colo.), 63, 401, 402, 403. Williams v. Wilson (Ore.), 735. Williamson v. Brown (Mo.), 275. Willis v. Smith (Tex.), 1133. Willis & Bro. v. Hudson (Tex.), 70. Wills v. Lochnane (Ky.), 1046. Wills v. Nehalem Coal Co. (Ore.), 63, 274, 276, 277, 1580. Wilson v. Carter (Cal.), 1936. Wilson v. Fitch (Cal.), 390. Wilson v. California C. R. Co. (Cal.), 1480, 1546. Wilson v. Commercial Union Ins. Co. (S> Dak.), 71. Wilson v. Dubois (Minn.), 1549. Wilson v. Nugent (Cal.), 953. Wilson v. Puget Sound Electric Car Ca (Wash.), 1505. Wilson v. Suydam (N. Y.), 79. Wilson v. Wilson (Cal.), 246, 794. Wilson v. Wilson (Iowa), 499. Wilson v. Wilson (Ore.), 277. Wilson v. Wilson (Minn.), 440. Wilson v. Yegean Bros. (Mont.), 1287. Winans v. Dunham (N. Y.), 1883. Winchester v. Black (Cal.), 1827. Windsor v. Minor (Cal.), 1773, 1774. Winfield Co. v. Maris (Kan.), 246. Wingert v. City of Tipton (Iowa), 1071, 1672. Winn v. Insurance Co. (Mo.), 1357. Winningham v. Fancher (Mo.), 1293. 2010 TABLE OF CASES. [References are to pages.] Winslow v. Minnesota etc. R. Co. (Minn.), 200. Winsor v. Ottofy (Mo.), 390. Winters v. Rush (Cal.), 200, 1335. Wintz v. Morrison (Tex.), 1790. Wirth v. Weigand (Neb.), 440, 1933. Wisdom v. Shanklin (Mo.), 440. Wise v. Hogan (Cal.), 65. Wise v. Rose (Cal.), 72. Wiseman v. Eastman (Wash.), 225. Withers v. Berry (Kan.), 1408. Witteman v. Watry (Wis.), 72. Wittmeier's Estate, In re (Cal.), 1866. Woffenden v. Woffenden (Ariz.), 1669. Wolfe v. State (Ind.), 882. Wood, In re (Fed.), 1865, 1866. Wood v. Brush (Cal.), 183. Wood v. Fox (Utah), 1029. Wood v. Franks (Cal.), 1699. Wood v. Goodfellow (Cal.), 274. Wood v. Herrman Min. Co. (Cal.), 1822. Wood v. McDonald (Cal.), 1603. Wood, Curtis & Co. v. Seurich (Cal.), 333. Woodbury v. Nevada S. R. Co. (Cal.), 1S27. Woodruff v. Bearman F. Co. (Minn.), 1545. Woods v. Lisbon (Iowa), 108. Woodside v. Hewel (Cal.), 1936. Woodworth v. Knowlton (Cal.), 693. Woollacott v. Meekin (Cal.), 1935. Woolley v. Wickerd (Cal.), 1105. Worcester v. Kitts (Cal.), 95, 793. Worley v. Moore (Ind.), 1293. Worley v. Sheppard (Iowa), 730. Wormall v. Reins (Mont.), 108. Wrege v. Jones (N. Dak.), 390. Wright v. Ascheim (Utah), 360. Wright v. Ce.itr 1 Cal. C. W. Co. (CaI.), 601. Wright v. Connor (Iowa), 79. Wright v. Ragland (Tex.), 1700. Wright v. Tinsley (Mo.), 1335. Wrought Iron R. Co. v. Young (Ark.), 108. Wurts v. Hoagland (U. S.), 1237. Wylie v. Sierra G. Co. (Cal.), 1849. Wymond v. Amsbury (Colo.), 403. Yerian v. Linkletter (Cal.), 1743. Yik Hon v. Spring Valley Water Works (Cal.), 1545. Yonley v. Thompson (Ark.), 246. Young v. Blakeman (Cal.), 270, 1085. Young v. Cannon (Utah), 893. Young v. Cook (Mass.), 391. Young v. Downy (Mo.), 1135. Young v. Glascock (Mo.), 73. Young v. Miller (Cal.), 72. Young v. People (111.), 953. Young v. Stickney (Ore.), 245. Young v. Wright (Cal.), 176. Young v. Young (N. H.), 433. Younger v. Judah (Mo.), 411. Younger v. Spreckels (Cal.), 1813, 1814, 1815. Younie v. Blackfoot L. & W. Co. (Idaho), 1530. Yukon River S. B. Co. v. Gratto (Cal.), 1605. Yundt v. Hartrunft (111.), 407. Yurann v. Hamilton (Kan.), 162. Zalesky v. Home Ins. Co. (Iowa), 271. Ziel v. Dukes (Cal.), 32. Zimmerman v. Robinson & Co. (Iowa), 147. Zivi v. Einstein (N. Y.), 72. INDEX [References are to pages. Vol. I, pages 1-1238; Vol. II, pagt* 1239-1969.] Abatement and revival, 204. Abatement of nuisance. See Nuisance; Injunction. Abatement, pleas and defenses generally. For particular pleas, see separate headings, defenses in abatement and miscellaneous defenses, 247. defense based upon incapacity of foreign corporation to sue by reason of non-compliance with the laws of the state in which suit is brought (form), 249. matters in abatement under Missouri statutes, 67, 68. matters in abatement, when waived, 269. plea in abatement amounting to general denial — trial, 1864. pleas in abatement not favored, 269. Abduction. See, also, Seduction. abduction or seduction of personal relations, 392. complaint— action for enticing away, and for criminal conversation with, plaintiff's wife (form), 393. action by husband for enticing away his wife, and charging malice and wantonness (form), 394. action for harboring plaintiff's wife (form), 395. Acceptance. See Negotiable instruments. Accord and satisfaction, defense of. accord defined, 289. affirmative defense, 330. defense of accord and satisfaction (form), 289, 290. effect of accord, 289. necessary averments of defense, 330. plea of accord and satisfaction held sufficient, 330. satisfaction defined, 2S9. pleading an account, 163. Account stated. See, also, Debt, actions for. complaint — action to recover interest on a balance due on an account stated (form), 1280. defense of denial of account stated (form), 1286. mistake in account stated, how put in issue, 12S8. nature of account stated, 1287. pleading cause as a stated account, 1272. (2011) 2012 INDEX. [References are to pages. Vol. I. pages 1-1238; Vol. II, pages 1239-1969.] Accounting. See Partnership and accounting. Accounts, actions upon. See, also, Debt, actions for; Sale and purchase; A» count stated, action for balance of account, 1288. daily balances, 1288. Act of God, so-called. See Irresistible superhuman cause, as defense. Administrators. See Executors and administrators, actions by and against. Admissions. See, also, Answer to complaint (or petition); Demurrer to coi» plaint (or petition), admission by insufficient denial, 71. admissions in the answer referable to the complaint, 69. admissions in pleadings, 911. averments not denied deemed true, 68, 69. matters not deemed admitted for failure to deny, 69. trials — admissions in pleadings, 1863. when fact of agency is admitted by pleadings, 1334. Adoption. See, also, Minor children, custody and support of. abandoned and abused children, 547. adoption generally, 537. adoption and legitimation of illegitimate child, 545. complaint by overseer, 547. consent of parents, 546. order of adoption, 543. order upon contract of adoption, 546. proceedings on adoption, 537. right of adoption, 546. Adultery. See Divorce, causes for. Adverse claims to real property. See, also, Quieting title. actions to determine adverse claims; to remove cloud upon title, etc., 795*. complaint to remove mortgage cloud upon title (form), 771. elements of adverse possession, 805. independent title created by adverse possession, 794. occupation under written instrument or judgment, when deemed adverse. 801. possession, when presumed — occupation deemed under legal title, unless adverse, 799. premises occupied under claim of title deemed to be held adversely, 803. relation of landlord and tenant, as affecting adverse possession, 804. title by prescription, 805. what constitutes adverse possession under written instrument or judg. ment, 802. what constitutes adverse possession under claim of title not written, 80* INDEX. 2013 [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Adverse possession, defense of. defense of adverse possession — action for restoration of lands and for value of rents and profits, 1086. as tenants in common with plaintiffs— action to quiet title to a'leged prescriptive water-right (form), 1211. defense of prescriptive right to use of waters (form), 1212. Affidavits. affidavit — as basis of jurisdiction, 1849. where required, as in contempt, is jurisdictional, 1866. omission in affidavit, where jurisdictional, may be cured by answer. 1866. service of notice on a person not an attorney (form), 1837. service of notice by mail (form), 1837. service of notice on an attorney absent from his office (form), 1838. service of notice on an attorney at his residence when his office is closed (form), 1838. service of notice on an attorney at office in charge of a clerk or other person (form), 1839. service by citation (form), 1840. service of summons on several defendants (form), 1839. on motion to file supplemental answer (form), 134. accompanying motion to file supplemental complaint (form), 134. accompanying notice of motion of defendant to revive action in which plaintiff is deceased (form), 217. accompanying notice of motion to revive action in which defendant ig deceased (form), 218. accompanying notice of motion to substitute officer's successor us party (form), 218. in attachment and garnishment, 1688. for claim and delivery (form), 1633. to obtain leave to correct fictitious name (form), 234. accompanying notice of motion to elect between causes (form), 143. of clerk on motion to dismiss (form), 889. by attorney accompanying notice of motion to vacate stipulation (form), 125. by attorney-in-fact accompanying notice of motion to vacate stipulation (form), 124. error in signing, or omission to sign affidavit — validity not destroyed 1850. Agency. action to recover commission — complaint held sufficient, 1334. agent suing alone, 1335. complaint — by a foreign corporation against its agent and manager, for an accounting (form), 1325. by real estate agent, for commissions (form), 1328. 2014 INDEX. [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Agency (continued). complaint upon special contract to protect agent in his right to commis- sions (form), 1329. defense — denying agency (form), 1331. based upon special contract as to commissions (form), 1331. including counterclaim for damages for disobeying principal's orders in regard to stock transactions (form), 1331. departure by agent from his authority, 1334. distinction between contract to find purchaser and contract to sell, 1333. formal tender of purchase price — when unnecessary, 1334. oral offer to buy, 1334. parol contract to find purchaser, 1334. pleading ratification, 1335. when agency is admitted by the pleadings, 1334. Agreed case. agreed case, or controversy without action — affidavit, 905. findings upon submission (form), 911. judgment upon submission (form), 911. submission of controversy without action (form), 906. Agreed statement of facts. presenting issue as to effect of a particular statute (form), 907. issue as to validity of title derived through sale under trust-deed as against homestead claim (form), 908. judgment of dismissal — action to quiet title to tide lands (form), 790. Agreements. See Contracts. Alienation of affections. complaint — action by wife for alienation, 408. action by wife for alienating affections of her husband, and causing him to separate from and desert her (form), 401. conspiracy to alienate, 408. test of sufficiency of pleading, 407. verdict allowing compensatory and exemplary damages in an action by an unmarried woman for seduction (form), 403. Alimony. See Maintenance of wife. Allegations. See Particular allegations. Alteration of instruments. See, also, Cancelation of instruments; Rescis- sion; Negotiable instruments. alteration of contracts in writing, 312. alteration or destruction of duplicate — effect of, 313. destruction, cancelation, or alteration by party entitled to benefit under written instrument — effect of, 312. partial extinguishment by alteration of verbal contracts, 312. INDEX. 2015 [References are to pages. Vol. I, pages 1-1238: Vol. II. pages 1239-1960.] Ambiguity. See Demurrer to complaint; Demurrer to answer. Amendments to pleadings. amendments to pleadings generally, 96. admission of service of amended pleading (form), 103. allowance of amendments favored, 104. amending prayer after testimony taken, and before submission, 109. amending prayer to petition in equity, by adding request for money judgment, 109. amendment — as affected by the bar of the statute of limitations, 105. alleging omitted facts, 107. of complaint in forcible and unlawful entry and detainer to conform to proof, 917. inserting true names, 235. stating cause of action more specifically than required, 107. substantially changing nature of defense, 108. to conform to proof, 108. when not a departure, 107. at time of trial, 105. of pleadings on retrial after appeal, 106. application to amend — where not in furtherance of justice, 108. as to admission improvidently made, 104. as to non-delivery of deed asserted to be valid as a will, 104. bringing in new parties by amendment in partition, 822. California code rule relating to amendments as of course, 106. damages claimed, amendment as to, 108. damages, amendment of prayer for, 109. demurrer to amended pleading, 105. departure or substitution of new cause of action, 107. dilatory plea, asserting by amendment, 107. effect of amendment upon original pleading, 105. interposition of terms, 105. matters admitted in evidence over objection, 108. new cause not to be stated — original pleading stating no cause, 106. prevention of mistrial, 108. procedure upon amending the complaint, 96. purpose of amendment — foreign statute as to damages, 109. refusing amendment, 107. relation of amendment to original pleading, 105. right to amend pleadings in actions for libel, 389. right of defendant to reasonable postponement of trial, 106. rules as to demurrer and answer, 98. rule favoring amendments specially applicable to amending of answers, 104. rule on appeal as to decision permitting or refusing amendment, 105. test as to whether amended pleading substitutes new cause, 106. time of amending— general rule, 105. 20] (J INDEX. [References are to pages. Vol. I, pages 1-1238; Vol. IT, pages 1239-1969. 1 Amendments to pleadings (continued). time to amend or answer after demurrer — notice of decision, 100. treating pleadings as amended, 108. uncertainty removable by amendment, 104. waiver of ruling on motion to strike out amended pleading, 105. Amending record of court. amended judgment for defendant (form), 1880. correction of mistake of record, 1780. nunc pro tunc order amending record, 1836. Annulment of marriage. annulment of marriage generally, 441. actions to annul, when and by whom commenced, 445. annulment akin to right of rescission, 451. causes for annulment, 441. for impotency, 451. for fraud — basis of right of action, 451. complaint — to declare marriage void (form), 448. complaint for annulment — on the ground of fraud (form), 450. on the ground of impotency (form), 448. on the ground of lunacy (form), 449. on the ground of non-age, by party to the marriage (form), 449. on the ground of non-age, by parent (form), 449. where former husband or wife is living (form), 450. insanity — kleptomania not ground for annulment, 451. Another action pending. See Pendency of action, defense of. Answer to complaint [or petition]. See, also, Admissions; New matter, affirmative defense, construing of, 73. analysis of answer (form), 52. answer — what required to contain, 49. should include all defenses, 67. in actions relating to agency, 1331. in civil actions for assault, etc., 364. in actions for bailment or deposit, 1318. in action upon a bond, 1430. in actions relating to breach of promise of marriage, 1438. in actions for breach of miscellaneous contracts, 1259. in actions relating to builders' contracts, 1094. in actions for cancelation of instruments, 1799. in actions by and against cities, etc., 662. in conversion and trover, 1602. in actions relating to private corporations, 595. in employers' liability cases, 1455. in actions upon judgments, 1445. INDEX. 2017 [References are to pases. Vol. I, pages 1-1238; Vol. H, pages 1239-1969.] Answer to complaint or petition (continued). answer — in actions relating to covenants, title, and possession of rea.' property, 1085. in actions for debt, goods sold, etc., 1284. in actions for divorce, 484. in actions in ejectment, 1125. in actions in forcible and unlawful entry and detainer, 919. in actions for foreclosure of mortgages on real property, 717. in actions for fraud and deceit, 1577. in actions for fraudulent transfers, etc., 1590. in actions in guaranty and suretyship, 1408. in actions by innkeepers, 1310. in actions relating to insurance, 1351. in actions relating to irrigation and reclamation, 1231. in actions relating to landlord and tenant, 1116. in actions for libel and slander, 384. in actions for foreclosure of mechanics' liens, 945. in actions for money had and received, 1292. in actions for money lent, 1295. in actions to recover for money paid for the benefit of another, 129B. in actions for negligence of carriers of property or messages, 1476. in actions for negligence of carriers, by persons other than passen- gers, 1526. in actions for negligence — miscellaneous cases, 1539. in actions relating to negotiable instruments, 1376. in actions to abate nuisances, 746. in actions for partition, 820. in actions to quiet title, 776. in actions for rescission, 1788. in actions for sale and warranty, 1247. in actions for specific performance, 1765. in action relating to stockholders' liability, 613. in actions for trespass, 758. in actions relating to trusts and trustees, 1152. in actions relating to unlawful monopolies and conspiracies, 1553. in actions relating to water-rights and riparian owners, 1208. for work and services, 1274. confession and avoidance overcomes general denial, 70. contract made different from the one sued upon, 71. defects of the complaint remedied by the answer, 68. df-iundant sued by a wrong name (form), 52. denial based upon lack of knowledge sufficient to form a belief (form). 54. denials in the conjunctive, 71. denial must go to the substance of the allegation, 72. denial of allegations not expressly admitted, 69. denials upon lack of knowledge— New York rule, 72. 2018 INDEX. [References are ct> ^ases. Vol. I, pages 1-1238; Vol. II, pagos 1239-1969.] Answer to complaint or petition (continued). denial of jurisdiction of the person (form), 57. , denial of jurisdiction of subject-matter (form), 56. denial of jurisdiction by domestic corporation (form), 56. denial of jurisdiction by foreign corporation (form), 56. dilatory pleas, 67. discovery to enable defendant to answer, 69. duty of defendant to set up all his defenses in the first instance, 67. "express aider" under Missouri practice, 69. facts alleged by one party not to be pleaded by the other, 69. formal parts of answer, 52-58. formal averments in answer — by sole defendant (form), 52. by husband and wife suing jointly (form), 53. by infant (form), 53. by insane person (form), 54. form of denial under Kansas statute, 71. forms of denials or admissions, under the code, 71. fraud, showing of, under non est factum, 71. general denial (form), 54. of allegation not specifically admitted, 71. not sufficient under the Arkansas code — object of rule, 71. of one of several causes of action (form), 57. of part of pleading (form), 55. and setting up new matter (form), 55. as distinguished from the general issue, 69, 70. implied admissions control general denial, 71. information and belief, denial upon — force of rule prohibiting, 72. introductory part of answer, 68. language of denials, 68. matters provable under general denial, 70. motion for judgment on the pleadings proper when denials are only of conclusions, 1885. pleadings in a former action made part of the answer by reference, 68. special plea in bar in the answer, 68. special pleading of defense, when necessary, 73. specific denial (form), 55. specific denials and setting up new matter (form), 55. stating several defenses (form), 53. stipulation of n^rties as to denials, 68. stipulation waiving answer (form), 1847. traverse not required to be expressed in negative words, 72. traversing by affirmative averments, 72. wrong name, defendant sued by, 52. INDEX. 2019 [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-19C9.] Appeals. See, also, Writs of error. acknowledgment of service of notice of appeal (form), 1914. acknowledgment of undertaking — under statutes requiring acknowledg- ment (form), 1916. admission of receipt of copy of notice (form), 1912. affidavit of mailing notice of appeal (form), 1914. alternative method of appeal — California, 1936. appeal from part of an order, 1913. appeal bond given in forcible entry and detainer proceedings (form), 1426. appeals in state courts, 1908. appealability of order punishing for contempt, 1866. appellant as principal in appeal bond or undertaking, 1937. complaint, when not vulnerable to attack on appeal, 1935. consolidating various causes on appeal, stipulation (form), 1931. defenses in contempt proceedings, 1866. decisions on all questions not required, 1936. deficiencies of complaint supplied by the answer, 1936. entry of a general appearance on appeal, 1827. failure to answer — when deemed waived, 1936. instructions — review of on appeal, 1864. intermediate order — order fixing conditions and terms of undertaking on appeal — North Dakota, South Dakota, Wisconsin — (form), 1927. justification of sureties upon undertaking (form), 1915. matters not considered on appeal from order, 1934. miscellaneous orders, stipulations, and remittitur (form), 1926. modification of judgment for excess, 1936. motion to dismiss— when should be overruled, 1934. non-appealable order — striking out pleading, 1936. non-prejudicial ruling, 1935. notice of appeal — from judgment (form), 1911. from part of a judgment (form), 1912. from judgment and order denying motion for new trial (form), 1912. from judgment granting insufficient relief (form), 1912. from order denying motion for new trial (form), 1913. on questions of both law and fact from justice's court to the superior court — California (form), 1913. objections on motion stated in the conjunctive, 1864. order — dismissing appeal (form), 1929. dismissing appeal from order denying motion for new trial, for failure to file undertaking (form), 1929. dispensing with undertaking on appeal from judgment or order deny- ing new trial— in probate — (form), 1926. of supreme court relating to exhibits — action to quiet title, and for value of rents and profits, and for restitution (form), 1930. provisional order affirming judgment on appeal (form), 1930. denying motion to dismiss appeal from the judgment (form), 1929. 2020 INDEX. [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Appeals (continued). order — granting nonsuit, 1934. striking out pleading — reviewable on appeal from the judgment, 1934. order or judgment nunc pro tunc on appeal providing for answer to amendment, 1933. parties to appeal, 1935. "adverse party," 1935. petition when liberally construed on appeal, 1934. prohibition not substitute for appeal or error, 893. statutes relating to appeals and writs of error, reference to, 1908. refusal of incorrect charge not error, 1864. remittitur (form), 1931. reversal for fundamental error, 1935. review of orders made upon motions, 1934. rule as to reversal of judgment for defects in complaint, 1934. separate undertakings, 1935. stipulation to dismiss appeal (form), 1848. stipulation as to correctness of transcript on appeal and undertakings on appeal filed (form), 1928. substitution of attorneys not perfected, service of notice of appeal, 1828. ^afficiency of complaint — when not considered, 1934. transcript should contain notice of appeal, 1936. transcript not required to include the undertaking, 1936. trial de novo of equity case in supreme court, 1936. undertakings, 1915. classes of, 1935. on appeal from judgment and order denying new trial, 1935. for costs and damages [or charges] on appeal (form), 1915. by surety corporation (form), 1916. to stay execution of money judgment (form), 1916. on appeal from judgment directing the payment of money in instal- ments (form), 1917. where judgment directs delivery of documents or other personal prop- erty (form), 1918. where judgment directs sale or delivery of real property (form), 1918. where appeal is had from an order vacating writ of attachment or injunction (form), 1919. waiver of undertaking on appeal (form), 1928. waiver of deposit in lieu of undertaking (form), 1928. Appearance. acknowledgment of service (form), 1823. appearance to merits, 1826. asking permission to plead merits, 1826. change of venue, right to, not affected by special appearance, 1822. effect of general appearance, 1826. effect of request for time to answer, 1826. INDEX. 2021 [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Appearance (continued). entry of a general appearance on appeal, 1827. general guardian, duty to appear and defend, 432, 440. jurisdiction acquired upon appearance of general guardian, 433. notice of general appearance (form) 1823. notice of special appearance (form), 1823. setting cause for trial, 1826. statutory provisions as to general appearance, 1827. Appraisal. See Homesteads, appraisal of. Apprentice. See Master. Arbitration and award. agreement to submit to arbitration — Minnesota statutory form (form), 997. agreement where arbitrators appointed are authorized to select a third arbitrator, in case agreement can not otherwise be reached (form), 998. answer that arbitrators failed to consider matters submitted to them (form), 290. arbitration and award generally, 331, 994. award of arbitrators (form), 1001. defense of arbitration and award (form), 290. judgment upon award (form), 1002. oath of arbitrators (form), 1001. order granting motion to vacate and set aside judgment (form), 1002. submission to arbitration, 994. submission to arbitration where arbitrators are not empowered to name third arbitrator (form), 998. Arrest and bail. arrest and bail generally, 1617. grounds of arrest in civil cases, 1617. affidavit to obtain order for arrest in civil action (form), 347. complaint as aider of affidavit, 1622. complaint must charge fraud before mesne process for arrest may be issued, 1622. constitutionality of provisions as to civil arrest, 1622. defense of justification of arrest under civil process (form), 342. order for arrest in civil action (form), 348. proceedings against bail in civil arrest, 1621. right governed by law of place of action, 1622. sheriff's return to order of arrest (form), 348. undertaking and security by plaintiff before order for arrest made (form), 347. Jury's Pi.— liS 2022 INDEX. [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Assault, civil action for. action for injury to the wife — husband necessary party defendant, 368. complaint — action by husband for assault on wife (form), 362. action to recover damages for personal injuries (form), 362. allegation as to injuries, etc., 368. allegation of special damage — when unnecessary, 368. damages for future mental pain, 368. defense — justification against trespass or attempted trespass (form), 364. plaintiff's injuries inflicted by defendant while defendant was acting in self-defense (form), 364. acts to preserve the peace (form), 366. injuries inflicted while acting in defense of possession of dwelling (form), 365. injuries inflicted in self-defense, 368. justification as special defense in civil suit for assault, etc., 368. removal of plaintiff from railway car for non-payment of fare (form), 366. resistance of entry into dwelling (form), 365. evidence of defendant's wealth — when admissible, 368. items of necessary expense not pleadable as separate causes, 368. judgment for plaintiff upon verdict — in action to recover damages for personal injuries (form), 367. Assignment of chose in action. allegation of assignment necessary, 182. assignee of right to money does not acquire vendor's lien, 1105. assignment of choses in action or defenses — code rules, 182. assignment of thing in action not to prejudice defense — exception, 180. averment of assignment of claim (form), 181. causes arising in tort which survive to personal representative, 183. claim for tort — Wisconsin rule, 183. denial of assignment of cause of action (form), 1602. intermediate assignments where bank is in liquidation, 183 partial assignments, 182. rule as to "splitting" of demands, 182. statute, when not pleadable against an assignment of cause of action, 433. Assignments and assignees. See, also, Fraudulent transfers and assignments, action by assignee of lien, 1417. complaint — action by an assignee, for price of stock and fixtures of a store payable in instalments (form), 1282. action on an assigned debt due to a partnership (form), 1282. by assignee for creditors (form), 15. by assignee of claim or demand (form), 15. effect of assignment in attachment proceedings, 1699. INDEX. 2023 [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Assumpsit. See Debt, actions for; Taxes and revenue, etc.; Money had and received; Money lent; Money paid for the benefit of another. Assumption of risk, defense of. See, also, Negligence, etc.; Death by wrong- ful act. in action for death by wrongful act, 1505. in actions relating to employer's liability, 1460. Attachment and garnishment. action upon undertaking in attachment, 1686. affidavit — attachment, 1680. attachment against residents — Alaska, Arizona, California, Hawaii, Idaho, Oregon, Utah (form), 1688. attachment against resident — Nebraska (form), 1689. attachment against defendant about to leave the state with intent to defraud creditors (form), 1691. attachment against non-resident, where the cause of action is to recover damages arising from an injury to property in the state, in consequence of fraud, negligence, or other wrongful act (form), 1690. attachment against non-resident, for unliquidated damages ascertain- able under a contract (form), 1690. attachment against non-resident — action upon contract (form), 1689. answer of garnishee to the writ (form), 1696. attachment of crops under mortgage, 1699. certificate by sheriff of execution of writ of attachment in garnishment proceeding (form), 1695. interest not required to be stated in affidavit, 1700. interplea in attachment, 1701. intervention in attachment — Texas practice as to, 1701. judgment against garnishee, 1701. junior attaching creditor may intervene, 1701. liability upon undertaking, 1699. limitation upon right to attachment, 1699. money lost in gambling, 1699. motion to quash writ of attachment — special appearance (form), 1696. notice of garnishment or attachment of moneys, etc., owing or belonging to defendant, (form), 1695. oath of sureties endorsed upon or attached to undertaking (form), 1693. order discharging an attachment improperly or irregularly issued (form), 1697. releasing attachment (form), 1697. reviving proceedings against non-resident defendant, and continuing attachment proceeding (form), 1698. for the sale of attached property (form), 1697. payee not designated in bond — effect of, 1699. prohibition — when will not lie to arrest garnishment proceedings, 894. 2024 INDEX. [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Attachment and garnishment (continued). property subject to attachment — corporation stock, 1699. receipt in satisfaction of claim, and directing release of goods attached (form), 1696. return of sheriff to writ of attachment (form), 1695. security for indebtedness — omission of statement, 1700. undertaking on attachment (form), 1692. undertaking given to procure an order to discharge an attachment (form), 1693. when and in what cases attachment may issue, 1673. writ of attachment (form), 1694. Attorney-general. See State, actions instituted by attorney-general, or by or against the state. Attp-neys, disbarment of. See Disbarment of attorneys. Attorneys, substitution of. See Substitution of attorneys. Awa-d. See Arbitration and award. Bail. See Arrest and bail. Bailment or deposit. deposit, kinds of, 1311. complaint for damages against a bailee of goods (form), 1318. defense of adverse claim, 1319. defense that thing deposited is held as a pledge (form), 1319. demand is necessary to charge depositary with breach of duty, 1312 denial of bailment (form), 1318. deposit for exchange, 1312. depositary's liability for negligence, 1314. depositary's obligation to deliver on demand, 1312. depositor must indemnify depositary, 1314. exchange defined, 1311. endorsement on negotiable receipt of property delivered, 1316. joint deposits by two or more persons, 1313. notice to owner of adverse proceedings, 1312. notice by depositary to owner of thing wrongfully detained, 1313. Bankruptcy, discharge in, as defense. answer to petition pleading discharge in bankruptcy that plaintiff fraud- ulently failed to list property as part of assets (form), 267. defense of discharge in bankruptcy (form), 267. plea of discharge in bankruptcy, 277. Battery. See Assault, civil action for. Bill of exceptions. See Exceptions. INDEX. 2025 [References are to pages. Vol. I, pages 1-1238; Vol. n, pages 1239-1969.] Bill of particulars. affidavit for order for inspection of account (or of a paper), and to take a copy thereof (form), 1851. demand for bill by defendant, 1852. demand for a copy of an account (form), 1852. demand to have inspection of an original instrument (form), 1851. failure to file upon demand — effect of, 1852. failure to deliver bill within statutory time — discretion of court, 1853. motion to make bill more specific, 1852. notice of motion for an order for inspection of a paper (or account, or entries), and for a copy thereof (form), 1850. order directing party to furnish bill of particulars (form), 1852. purpose of bill of particulars, 1852. time to answer extended by motion, 1853. Bills. See Negotiable instruments. Boats. See Steamers, vessels, and boats. Bonds and undertakings. See, also, Bonds and undertakings, actions upon, approval of bond, endorsed thereon (form), 1420. bonds on writs of error, 1920, 1921. bond of commissioner given on sale of mortgaged property (form), 720. bond to indemnify sheriff (form), action to transfer stock, 600. proofs of publication and sale, 566. refusal to disclose affairs of corporation, 601 right of minority stockholders, 599. right of stockholder to inspect mine — damages, when recoverable. 574. INDEX. 2039 [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Corporations, actions relating to management, etc. (continued). right of stockholder acquiring stock after commission of wrongs, 599. rule in federal courts, 600. rule in the state courts, 600. sale of delinquent stock — notice of (form), 595. special meeting of directors — notice of (form), 594. supplemental complaint (form), 593. transferrer of stock not necessary party defendant to action to transfer stock, 600. Corporations as parties. See, also, Municipal corporations, corporations as parties generally, 227. averments — as to corporation plaintiff (form), 227. as to corporation defendant (form), 228. as to national banks as corporations plaintiff and defendant (form), 228. corporation having contractual interest proper party, 231. denial based upon insufficient knowledge of incorporation of plaintiff company (form), 229. when necessary party, 231. Corporations, foreign. See Foreign corporations and their stockholders, actions against. Corporations, voluntary dissolution of. See Dissolution of corporations. Costs. acknowledgment of service of a copy of memorandum of costs (form), 1888. costs — in divorce, 1899. in equity cases generally, 1899. in foreclosure, 1899. in action for trespass, 1899. under attachment, 1900. where action abates, 1900. where partial relief is granted, 1899. counsel fees as costs, 1900. counterclaim as affecting costs, 1900. effect of modification or reversal, 1900. filing after statutory time, 1900. memorandum of costs and disbursements on part of plaintiff or defendant (form), 1887. notice requiring security for costs (form), 1886. notice of motion to stay proceedings until security for costs be given (form), 1887. premature filing of cost-bill, 1900. satisfaction of judgment for costs (form), 1879. sheriff's return of execution unsatisfied (form), 1890. statutory costs, 1900. 2040 INDEX. [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Costs (continued). statutory limitation of right, 1899. what statute governs as to costs, 1899. unliquidated demands, 1900. verification of memorandum of costs (form), 1887. writ of execution for fees and costs (form), 1891. Counterclaim [or set-off]. counterclaim or set-off (form), 89. counterclaim — generally, 81. as affecting costs, 1900. by assignee of directors of a corporation, 601. demurrer to — Iowa practice, 90. in excess of plaintiff's demand, 91. filing of, with answer, 90. judgment upon, 88. judgment upon, in excess of plaintiff's demand, 88. jurisdictional amount as affecting, 91. misjoinder of causes of — or causes not separately stated (form), 25 omission to set up — effect of, 84. objection to — when proper to be raised, 90. reply to, by general denial, 28. waiver of, objection to, 90. when may be set up, 81. when benefit is not affected by death or assignment, 85. facts insufficient to constitute a defense or counterclaim (form), 26. former judgment as defense and counterclaim in divorce, 499. joinder of defenses or counterclaims — joint demurrer and answer, 86. plea in bar as set-off to action by administrator upon contract of purchase and sale, 1032. reply to set-off or counterclaim, 91. issues of waiver and estoppel raised upon reply to counterclaim, 91. set-off and counterclaim — in assumpsit, 90. statutory distinction between, 90. in ejectment, 1135. for negligence (form), 1478. In action upon promissory note (form), 1394. set-off — requisites of, 90. common-law remedy of, 1294. right of, statutory, 89. rule under Texas procedure, 89. against contract to which plaintiff is not a party, 90. against a nominal party in partnership and accounting, 1324. held not to include unliquidated damages, 89. of value of improvements made on property held adversely, 765. INDEX. 2041 [References are to pages. Vol. I, pages 1-1238; Vol. IT, pages 1239-1969.] Counties and county officers, actions by and against. See Municipal corpora- tions; Public officers. Counts in pleading. See, also, Debt, actions for. cause of action against a city stated in quantum meruit, 661. common count is good pleading under the code, 33. general rule as to findings on separate counts, 1883. stating cause of action, 32. Courtesy [curtesy]. See Property of husband and wife, actions relating to. Courts. — See Jurisdiction. Covenants, title and possession of real property, actions relating to, generally, 1075. by owner or occupant of dominant tenement, 1075. by owner of servient tenement, 1076. for injuries to the inheritance, 1076. to reclaim bank of stream severed from owner's lands, 1079. to recover possession of land and mesne profits (form), 1084. allegation of ownership of land, 1089. apportionment of covenants running with the land, 1079. complaint — for breach of covenant against encumbrance of judgment (form), 1083. for breach of covenant against encumbrances of mortgage (form), 1081. for breach of covenant for quiet enjoyment (form), 1081. for breach of covenant of seizin (form), 1080. for breach of covenant of warranty— deficiency in quantity (form) 1080. for breach of covenant of warranty— failure of title (form), 1081. in action to recover taxes agreed to be paid by lessee (form), 1116. damages— detriment caused by wrongful occupation of real property, 1731. measure of, for breach of covenant of seizin— action for breach of covenant against encumbrances, 1089. defenses— (1) denials, (2) bar of statute of limitations, (3) adverse pos- session, (4) former adjudication— action for restoration of lands and for value of rents and profits (form), 1085. eviction not essential in action for breach of covenant of seizin, 1089. extinguishment by disuse of right of way, 1089. judgment for plaintiff and intervener— action to have it adjudged that a deficiency judgment, docketed against plaintiff's land, is not a lien thereon, and for an injunction restraining defendants from selling said land upon an execution (form), 1088. owners of ditches, flumes, etc. — liability to each other, 1077. plea of estoppel, 1084. pleading assumption of indebtedness as real consideration for convey- ance, 1089. 2042 INDEX. [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Covenants, title and possession of real property (continued), pleading execution and delivery of deed, 1089. prayer in action for restoration of lands and for value of rents and profits, 1087. removing subjacent support — notice, 1090. right to lateral and subjacent support, 1077. Creditors' suits. See Fraudulent transfers and assignments. Cross-complaint. cross-complaint [or cross-petition] generally, 91. affirmative matter, when not subject to cross-complaint, 95. answer and cross-complaint against plaintiff (form), 93. cross-bill not included in Montana practice, 95. cross-complaint — between defendants (form), 94. in action to quiet title, 793. in ejectment (form), 1123. in foreclosure (form), 711. upon pre-nuptial contract, 520. against third party not named in the action (form), 94. procedure when filing, 91. cross-petition in action at law tendering equitable issues, 95. demurrer to answer and cross-complaint — specifying bar of the statute (form), 26. denial of matters in cross-complaint — when not necessary, 95. Cruelty. See Divorce (causes for). Curtesy. See Property of husband and wife, actions relating to. Damages. See, also, Damages for wrongs. acceptance of principal waives claim to interest, 1721. amendment as to damages — general rule, 108. averment as to irreparable injury caused (form), 1202. averment of loss of time, 1742. averments as to damages for breach of contract to purchase oil (form), 1258. compensatory relief — nature and extent of, 1716. damages — generally, 1716. allowance of interest as, 1743. contracts fixing, generally void — exception, 308. for breach of agreement to buy real estate, 1727. for breach of agreement to convey real estate, 1727. for breach of agreement to deliver personal property not paid for, 1728. for breach of agreement to deliver personal property paid for, 1728. for breach of agreement to accept and pay for personal property sold, 1728. for breach of buyer's agreement in conditional sale, 1729. INDEX. 2043 [References are to pages. Vol. I, pageB 1-1238; Vol. II, pages 1239-1969.] Damages (continued). damages — for breach of carriers' obligations, 1724. for breach of carrier's obligation to accept freight, passengers, etc., 1724. for breach of carrier's obligation to deliver freight, 1724. for breach of contracts, generally, 1722. for breach of contract to buy, 1743. for breach of contracts relating to real property, 1725. for breach of contracts relating to personal property, 1728. for breach of promise of marriage, 1723. for breach of warranty of agent's authority, 1723. for breach of warranty of quality of personal property, 1730. for breach of warranty of quality for special purpose, 1730. for breach of warranty of title to personal property, 1729. demand for not necessary, 1743. interest in actions not arising from breach of contract, 1719. interest recoverable with, 1719. measure of, for breach of contract, 1722. must be ascertainable, 1722. must be reasonable, 1718. rate stipulated by contract — when superseded, 1719. detriment — defined, 1717. caused by breach of covenant against encumbrances, 1726. caused by breach of covenant of seizin, etc., 1725. caused by carrier's delay in delivery, 1725. for breach of obligation to pay money, 1723. person suffering, may recover damages, 1716. resulting, or certain, after suit brought, 1717. duel — damages for detriment caused by, 1741. duel — liability to pay debts of person slain or permanently disabled in, 1742. exemplary damages — allegation as basis for exemplary damages, 1743. future earnings as element of damages, 1742. liquidated damages, 1743. limitation of damages, 1717. nominal damages, 1718. personal injuries caused by known defect, 1743. pleading damages, 1743. profits as general damages, 1248. "proximate cause" defined, 1742. punitive damages, 1743. special damages, 1742. speculative damages, 1743. value, how estimated in favor of seller, 1717. "wilful" — meaning construed, 1743. 2()44 INDEX. [References are to pages. Vol. I, pages 1-1238; Vol. U, pages 1239-1909.) Damages for wrongs. damages for wrongs — generally, 1730. for assault, 368. for breach of obligation not arising from contract, 1730. for conversion, to party having lien, 1733. for firing woods, 1740. for seduction, 1734. for wilfully holding over and for failure to quit after demand and notice, 1738, 1739. for wilful or negligent injuries to animals, 1738. damages (additional) arising out of a tort, 108. detriment caused by conversion of personal property, 1733. detriment caused by wrongful occupation of real property, 1731. exemplary or punitive damages, 1737. injuries caused by dogs, etc., to other animals, 1734. measure of damages— for injuries to trees, etc., 1740. for wilfully holding over, 1732. penal damages, 1737. presumption as to wrongful conversion, 1733. Death by wrongful act. See, also, Transitory actions. actions, generally — for benefit of widow and children, 202. for death of one not a minor, caused by wrongful act of another, 194. by husband as heir of wife, 203. by personal representative — Oklahoma statute, 202. under Arizona statute, 1503. existence of beneficiaries designated by the statute must be alleged, 1503. alternative methods of prosecuting action, 203. code rule — origin of, 201. complaint — against common carrier by representative of decedent, for damages for wrongful death — decedent a passenger on defend- ant's train (form), 1494. by heir at law against street railway corporation, for damages result- ing from the death of a minor child caused by negligent opera- tion of street-cars (form), 1496. by husband and minor children, to recover damages for death of wife and mother of said minors (form), 1498. by representative, for wrongful death caused by collision (form), 1495. must show that there are heirs, 202. provisions of the North Dakota statutes, 201. damages— statutory limitation upon, 1505. defenses — contributory negligence of parent, 1505. assumption of risk and contributory negligence of deceased, 1506. existence of beneficiaries— when not required to allege, 1503. judgment for plaintiff upon verdict (form), 1501. INDEX. 2045 [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Death by wrongful act (continued). measure of compensation to minors for death of parent, 1505. parties to action — common-law rule, 201. special administrator as "personal representative," 202. when all heirs are necessary parties, 1503. passenger in automobile — death resulting from negligence, 1505. replication in action by administrator, for wrongful death of passenger on overloaded street-car (form), 1500. statutory requirements must appear in the petition, 1502. substitution of representative for heirs as parties, 1503. time in which suit must be brought, 1502. unskilful treatment of patient, 1505. Debt, actions for. See, also, Sale and purchase; Fraud and deceit (defenses), assumpsit — pleading at common law, 1287. sufficiency of pleading under the code, 1287. lies after part performance, 1287. partner may maintain against copartner, 1287. complaint action for debt — common count (form), 1277. against husband and wife, for goods sold to wife for her separate estate (form), 1281. for reasonable value of goods sold (form), 1279. to recover for goods delivered to third person at defendant's request (form), 1279. to recover where credit was given (form), 1279. for balance on goods sold and delivered at an agreed price (form), 1280. for goods sold and delivered by a corporation to a partnership, and to a partner as an individual (form), 1283. defense — former judgment (form), 1285. general denial (form), 1285. as to agreement to take note in part payment (form), 1285. reducing value, or amount promised, and pleading payment, or offer to pay (form), 1284. that credit is unexpired (form), 1284. denial of indebtedness (form), 1286. denial of plaintiff's title (form), 1284. non-delivery under general denial, 1288. Deceit. See Fraud and deceit. Decrees. See Judgments. Deed as a mortgage. See Foreclosure of mortgages on real property. Defamation. See Libel; Slander. Defaults. application for entry of default (form), 1824. clerk's entry of default of defendant for failure to appear (form), 1824. 2046 INDEX. [References are to pages. Vol. I. pages 1-123S; Vol. II, pages 1239-1969.] Defaults (continued). effect of entry of default, 1827. issues of law preclude default, 1827. judgment of default — entry by clerk — (form), 1877. order on stipulation, setting aside default judgment (form), 1825. stipulation to set aside judgment by default and to reopen cause (form), 1824. remedies against default judgment, 130. Defect of parties. See Joinder, misjoinder, and non-joinder of parties. Defendants. See, also, Parties in interest; Joinder, misjoinder, and non- joinder; Definiteness and certainty. action upon joint and several contract, 245. objection to joinder of necessary party — when waived, 245. parties defendant — general rule as to joinder of, 244. persons not necessary parties, 244. rule as to multifariousness, 244. special Wisconsin statute construed, 245. Defenses, generally. See, also, Accord and satisfaction; Adverse possession as defense; Duress; Estoppel; Former judgment; Laches; Pen dency of action, defense of; etc. affirmative defenses generally — Missouri statute, 329. alternative defenses, 68. consistency of actions and defenses — inconsistent pleas under Texas prac- tice, 145. defenses in general, 1432. to instruments assigned, 182. absence of free consent through duress, menace, fraud, undue influence, or mistake, 298. alteration or cancelation of contract, 312. no jurisdiction of the person — foreign consul (form), 57. based upon rescission of contract, 310. to contracts void or invalid — statute of frauds, 315. unconstitutionality of statute upon which right of action is based, 69. to actions founded upon contract, 278. defense founded on written instrument, 157. federal rule as to stockholder setting up defense of ultra vires, 274. defenses in particular cases — coverture where plaintiff sues alone (form), 189. averring destruction of building before completion, 1095. in action for specific performance of contract to convey land (form), 1767. fraudulent representations — inadequate and unfair consideration in specific performance, 1767. INDEX. 2047 [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Defenses, generally (continued). defenses in particular cases — ownership of waters through grants of lands embracing all subterranean waters within the limits of a defined artesian basin — action to enjoin alleged diversions of water from an artesian basin (form), 1208. prescriptive right to use of waters (form), 1212. riparian right to waters (form), 1213. voluntary abandonment of office, in action for reinstatement as a police officer (form), 666. to suppress common nuisances and immoral practices, 747. in actions of specific performance relating to sale of mining property (form), 1769. in actions relating to trusts and trustees, 1152. equitable defenses in ejectment, 1135. fraud as a defense must be set up, 1583. inconsistent defenses — Iowa practice, 145. objection to inconsistent defenses — how raised, 128. laches must be pleaded as a defense, 1432. laws of a foreign state — defense involving issue of (form), 266. matter of defense, when deemed denied, 36. misjoinder, defense of, in actions relating to water-rights (form), 1209. motion to elect between defenses delayed until time of trial, 146. plea of the statue in support of an equitable defense, 275. pleading statute of limitations as defense (form), 57. ultra vires of corporation (form), 266. estoppel of corporation to make defense of, 274. Definiteness and certainty. cause stated as basis of recovery — general rule, 128. demurrer when treated as motion, 144. remedy to obtain definiteness and certainty, 144. uncertainty and indefiniteness reached only by motion, 128. test of consistency of defenses, 127. relation of inconsistent defenses to motion for judgment on the plead- ings, 1885. theory of action or defense — complaint should proceed upon definite and distinct theory, 127. uncertainty, construed to support judgment, 175. vague and indefinite pleading, 145. Delivery bond. See Bonds and undertakings. Demand. suit as demand, 32. objection to manner of pleading, 32. where demand is unnecessary, 32. 2U48 INDEX. [References are to pages. Vol. I, pages 1-1238; Vol. n, pages 1239-1969.J Demurrer to the answer. demurrer to the answer generally, 21, 36. general and special demurrer to answer (form), 26. grounds of demurrer to the answer, 24. waiver of demurrer to answer by replying over, 36. Demurrer to complaint. See, also, Statute of limitations. ambiguity and uncertainty, 66. ambiguity — ground of (form), 43. challenging sufficiency by oral objections, 65. demurrer and motion not interchangeable, 61. demurrer — in general, 21, 61. another action pending — Iowa, Kansas, Missouri, Washington, Wis- consin, Wyoming (form), 42. causes not separately stated (form), 43. court has no jurisdiction of the person (form), 41. court has no jurisdiction of subject of the action (form), 42. defect of parties (form), 42. facts insufficient to constitute cause of action (form), 43. incapacity of plaintiff to sue (form), 42. misjoinder of causes (form), 43. misjoinder of parties (form), 42. plaintiff not a necessary party (Missouri) (form), 47. upon the grounds — first, want of plaintiff's legal capacity to sue; sec- ond, that the petition does not state facts sufficient to constitute a cause of action; third, misjoinder of alleged causes of action (form), 45. to petition — Iowa code (form), 46. not interposed — subsequent averments and variance, 130. Washington statute construed, 130. California practice, 130. distinction between demurrer and motion for judgment on the plead- ings, 61. effect of demurrer — admits truth of facts properly pleaded, 63. denies efficacy in law as justifying relief prayed for, 63. only necessary averments admitted, 63. failure to obtain ruling on demurrer, 63. general demurrer — for insufficiency — Iowa statute, 64. to petition in equity — Iowa code (form), 46. grounds of demurrer generally, 39. insufficiency, question on demurrer for, 64. intendments, 63. matters considered on demurrer, 61. matters of form disregarded, 64. notice of overruling demurrer and order granting time to answer, 1831. misjoinder of causes, 66. objections not appearing on face of complaint, 47. INDEX. 2049 [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Demurrer to complaint (continued). objections when deemed waived — exceptions, 48. order sustaining demurrer without leave to amend, and granting motion for judgment on the pleadings (form), 1878. provisions of the Iowa statute, 61. ruling upon demurrer, effect of, 67. "speaking demurrer," 62. special demurrer must specify particulars, 65, 66. specifying grounds of demurrer, 43. stipulation that demurrer be overruled — effect of, 65. sufficiency of motion not tested by demurrer, 61. sustaining demurrer, as to pendency of the action, 67. test upon general demurrer interposed, 64. test of sufficiency where demurrer is not interposed, 64. waiver of demurrer by answering over, 62. waiver — effect of, 62. Demurrer to reply. See, also, Demurrer to complaint, demurrer to reply — in general (form), 59. for insufficiency (form), 59. Denials. See Answer. Deposit. See Deposit in court; Bailment or deposit. Deposit in court, in general, 1713. motion to deposit money, or other personal property. In court (form), 1714. order for deposit in court, or the delivery to another party, of money or other property (form), 1715. Depositions. affidavit — for taking the deposition of a resident witness (form), 1841. upon taking deposition of defendant as witness for plaintiff (form), 1841. with application for commission for the taking of the deposition of a non-resident witness (form), 1842. commission to take deposition of witness (form), 1843. certificate of commissioner to deposition, 1847. deposition of witness — annexed to the commission (form), 1846. instruction to commissioner (form), 1843. notice of taking of deposition (form), 1842. stipulation of counsel to take depositions (form), 1840. Desertion. See Divorce (causes for). Destroyed corporation records. See Lost or destroyed corporation records. Detainer. See Forcible entry and unlawful detainer. :.boo INDEX. [References are to pages. Vol. I, pages 1-1238; Vol. IT, pages 1239-1969.J Detention of personal property. See Personal property, injuries to and unlaw- ful detention thereof. Dilatory plea, asserting by amendment, 107. Directors. See Corporations, actions relating to management and inter- nal affairs. Disbarment of attorneys. demurrer or objections to accusation (form), 1957. judgment of disbarment where the accusation is based upon a conviction of a felony (form), 1957. judgment or order of suspension (form), 1958. order addressed to accused to appear and answer (form), 1956. petition for disbarment (form), 1955. verification of petition for disbarment, 1956. verification of petition for disbarment — California (form), 1956. Discharge. See Release and discharge, defense of. Discharge in attachment. See Attachment and garnishment. Discharge in bankruptcy, as defense. See Bankruptcy, discharge in, as defense. Disclaimer. amended answer with disclaimer (form), 182. disclaimer of interest (form), 182. in action for cancelation of forged deed (form), 776. in partition — not required to be accepted unless absolute, 822. in action to quiet title (form), 769. Dismissal. affidavit of clerk on motion to dismiss (form), 889. dismissal of action by plaintiff (form), 1867. statutes construed, 1870. dismissal as to one or more joint debtors, 1870. judgment of dismissal — entry by clerk (form), 1876. as nonsuit, 1869. rule under Oregon practice, 1870. jurisdiction — inherent authority of courts to order dismissal, 1869. notice of motion to dismiss action, 1831. notice of motion to dismiss action unless proper parties revive the same (form), 216. stipulation of dismissal on compromise (form), 1867. Dissolution of corporations. dissolution of corporations, generally, 953. application for voluntary dissolution of corporation, 953. INDEX. 2051 [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1960.] Dissolution of corporations (continued), petition for dissolution (form), 960. petition for voluntary dissolution, 960. signing and verification of application, 959. Divorce. adultery — defined, 467. as ground for divorce, 467. how charge of is stated, 498. allegation of adulterous intercourse (form), 469. allegation that application for divorce is made in good faith — Iowa statute construed, 497. bar to action interposed by the court, 499. causes or grounds for divorce, 453. change of venue where real action is joined with action for divorce, 1820. complaint — ground of adultery (form), 468. ground of adultery, where name of paramour is unknown (form), 469. ground of failure to provide (form), 469. ground of habitual intemperance or drunkenness (form), 479. ground of extreme cruelty (form), 478. ground of cruelty, for custody of minor children, division of property, alimony, etc. (form), 475. ground of conviction of felony (form), 479. ground of wilful neglect, or failure to provide (form), 470. ground of desertion (form), 474. on grounds of desertion and failure to provide (form), 473. conviction of felony as ground for divorce, 479. counsel fees — when court may award, 499. cruelty as ground for divorce, 474. extreme cruelty defined, 474. "grievous bodily injury," "grievous mental suffering," 498. mental suffering as element of cruelty, 498. decree — a vinculo, 500. awarding permanent alimony, 500. of nullity, may be rendered, when, 500. entry of, nunc pro tunc, 500. final judgment or decree, 490. final decree, giving plaintiff authority to resume her former name (form), 496. findings and decrees, 489. findings of fact and conclusions of law (form), 492. interlocutory judgment or decree, 489. interlocutory decree (form), 493. interlocutory decree — effect of, 499. interlocutory decree, providing for custody of minor children, division and separation of community and separate property, etc. — action on the ground of cruelty (form), 493. 2052 INDEX. [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Divorce (continued). decree — judgment by confession, when unauthorized, 500. modification of orders and decrees under the Oklahoma statutes, 499. modification by motion, 500. desertion — defined, 470. absence or separation, when becomes desertion, 472. how manifested, 471. how cured, 472. in cases of strategem or fraud, 471. in cases of cruelty, where one party leaves the other, 471. *»v husband where selection of home or mode of living is unfit, 473. complaint for desertion not required to allege offer of reconciliation, 498. "persistent refusal" under complaint for desertion, 498. rights of husband, as head of family, 467. right of husband to choose home and method of living, 473. separation by consent not desertion, 472. revocation of consent to separation, 472. defenses and causes for denial of divorce, 479. collusion defined, 481. condonation defined, 482. condonation, when to bar defense, 484. condonation (form), 485. connivance defined, 480. defenses in bar, 499. former judgment as defense and counterclaim, 499. general denial (form), 484. grounds for denial of divorce, 479. divorce, when denied because of lapse of time, 459. denial of adultery — and cross-complaint (form), 484. divorce proceedings in general, 453. divorce from bed and board, 500. divorce by default or on uncorroborated testimony not granted, 464, habitual intemperance (or drunkenness) as ground for divorce, 478. habitual intemperance defined, 478. how charged, 498. impotency as ground for divorce in certain jurisdictions, 479. interest of the state in divorce proceedings, 498. period of continuance of certain causes, 463. plea of former adjudication (form), 485. recrimination defined, 482. recriminatory facts — pleading of, 499. residence — plaintiff required to establish, 461, 498. publication of summons in divorce proceedings, 486. affidavit of search for defendant — California (form), 487. affidavit of plaintiff for publication of summons (form), 486. INDEX. 2053 {References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Divorce (continued). publication of summons, order for — California (form), 488. right to defend — court can not deprive defendant of, 499. stipulation not to defend, 499. trial of issues by jury — Oklahoma practice, 499. wilful neglect (or failure to provide) as ground for divorce, 469. wilful neglect defined, 469. Dower. See Property of husband and wife, actions relating to. Drafts. See Negotiable instruments. Drainage. See Irrigation and reclamation. Drunkenness. See Divorce (causes for). Duel, damages caused by. See Damages. Duress, defense of. duress — definition, 300. development of the defense of, 332. defense — duress of imprisonment (form), 304. duress against public service corporation (form), 305. of menace (form), 305. Ejection. See Negligence of carriers — actions for injuries to passengers. Ejectment. ejectment, generally, 1119. affirmative defense, 1134. complaint in ejectment (form), 1119 when sufficient, 1134. by a city, 1134. for use and occupation (form), 1120. for restitution of lands and for damages for alleged trespass (form), 1125. alleging title by dower (form), 1120. alleging title by descent (form), 1121. alleging title by devise (form), 1122. by owner of undivided interest (form), 1122. by tenant (form), 1122. by homestead entryman (form), 1123. conditional judgment, 1136. cross-complaint (form), 1123. must relate to lands in question, 1135. damages — right to recover rents and profits, 1135. defense — based upon agreement to convey (form), 1125. adverse possession (form), 1127. adverse possession founded upon a written instrument (form), 1127. Jury's PI.— 130. 2054 INDEX - [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Ejectment (continued). defense —based upon bar of the statute (form), 1127. based upon fraud of original owner (form), 1127. based upon grant of franchise and right of way (form), 1125. based upon unexecuted agreement to convey under which possession was given (form), 1127. effect of certain denials and admissions as to homesteader's entry, 1134. ejectment by mortgagor, 1134. ejectment to recover homestead — action by wife, 1134. equitable defenses in ejectment, 1135. code rule, 1135. essential allegations, 1133. facts must show entry to be "wrongful and unlawful," 1133. improvements by purchaser not set-off, 1135. intervention in ejectment, 1135. judgment for defendant upon an equitable defense in ejectment, embody- ing general findings upon the issues (form), 1132. title in defendant, 1134. rents and profits included in judgment, 1135. value of use and occupancy, 1135. verdict and judgment — basis of, 1135. when ejectment is not the proper remedy, 1134. writ of restitution upon judgment in ejectment, 1901. Election between causes. See, also, Definiteness and certainty in pleading, doctrine of election — when it has no application, 146. election between remedies upon executed contract of sale and purchase, 146. Election between remedies and defenses. See, also, Defenses, inconsistency between defenses, generally, 145. motion to elect — not applicable to different consistent counts, 146. when too late, 146. remedy chosen — when not available, 146. waiver of motion to elect, 147. Election contests. election contests, generally, 894. contest under Idaho revised codes, 904. parties to, and grounds of contest, 894. pleading reception of illegal votes as cause of contest, 902. proceeding for election contest unknown at common law, and Is purely statutory, 904. statement or complaint of cause of contest, 898. statement of cause — want of form will not vitiate, 903. INDEX. 2055 [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Eminent domain. eminent domain, generally, 961. acquisition of property by exercise of eminent domain, 961. allegation in action to decree road a public highway, 974. answer not raising issue as to necessity, 974. complaint in exercise of the right of eminent domain — parties, 962. complaint for condemnation of land for a public use (form), 972. demand for jury to ascertain damages — Colorado statute, 974. private property taken for private use — Colorado statute, 974. right of eminent domain under the Washington constitution, 974. Employees. See Employers' liability cases and actions against employees; Work and services. Employers' liability cases and actions against employees. actions generally upon employers' liability, and by and against employees, 1448. burden of proof as to assumed risk, 1460. complaint in action for negligence held sufficient, 1459. complaint — by employee against railroad company, for damages resulting from injuries sustained in operation of defective machinery (form), 1449. by servant, to recover damages for personal injuries sustained from negligence of employer in requiring performance of labor with which the servant was not familiar (form), 1450. under employers' liability act (form), 1451. by employer, for servant's negligence (form), 1454. by employer, for repayment of money advanced for services (form), 1454. defense — assumption of risk, 1460. assumption of risk and contributory negligence — separate defenses, 1460. failure of plaintiff to give notice prescribed by statute as condition precedent to action (form), 1455. contributory negligence (form), 1457. contributory negligence and assumed risk (form), 1456. negligence of fellow-servant of plaintiff (form), 1457. denial, contributory negligence and assumed risk (form), 1456. instruction based upon an assumed risk, 1460. insufficient showing of negligence, 1459. liability of servant to master for acts of servant's minor children, 1460. negligence of fellow-servant, 1460. notice as condition precedent — Kansas statute, 1458. risk — when deemed assumed, 1460. Encumbrances, breach of covenant against. See Covenants, title, and pos- session of real property. 2056 INDEX. [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-19S9.J Enticing away. See Abduction. Entry. See Forcible entry and unlawful detainer. Entry of judgment. See, also, Judgments. entry of judgment as distinguished from the judgment, 1883. irregular entry of decree, 1883. Iowa statutes relating to entry of judgment, 1883. Equitable defenses. See Defenses, generally. Equity. See Relief in general; and titles of particular equitable actions, so called. Errors in pleading. See Amendments; Mistakes in pleading. Escheated estates. escheated estates, in general, 975. information as to escheated estate, 975. information to declare an escheat to the state, 984. defense — answer to information respecting an alleged escheated estate — judgment, 982. petition to declare escheat (form), 984. Estates, escheat of. See Escheated estates. Estates of deceased persons. See Executors and administrators, actions by and against. Estates, interest in. See Heirship and interest in estates, actions to deter- mine. Estoppel, defense of. defense of estoppel, in general, 269. defense of estoppel (form), 248. in relation to attachment proceedings, 1700. in replevin, to deny taking, 1650. by former judgment, 271. against defenses in the answer — rule where no reply is allowed, 270. equitable estoppel and estoppel in pais, 270. estoppel proceeds on the ground of fraud, 270. evidence of facts constituting estoppel — when not admissible, 270. facts showing estoppel, in issue, 270. former action by an infant, 271. laches as estoppel, 276. modifications of the rule as to estoppel, 270. party invoking defense must act in good faith, 270. statements, etc., in prior pleadings, 270. Eviction. See Covenants, title and possession of real property. INDEX. 2057 [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Exceptions. See, also, Trials, exceptions, generally, 1864. matters of record properly have no place in a bill of exceptions, 1864. order allowing additional time in which to prepare and serve bill of exceptions on granting nonsuit (form), 1867. notice of presentation of bill of exceptions for settlement (form), 1905. repetition of exceptions upon the trial, 1864. Exchange, bills of. See Negotiable instruments. Executions. See, also, Sheriff's and constables; Writs, executions — generally, 1886. against real or personal property in the hands of an executor, etc. (form), 1894. in replevin (form), 1637. sheriff's return of, unsatisfied — property claimed by third person (form), 1890. upon writ of restitution (form), 1895. writ of execution — corporation as judgment debtor (form), 1889. after remittitur filed (form), 1896. on certified abstract of judgment of justice's court (form), 1892. on judgment (form), 1888. writ of assistance (form), 1897. Execution, proceeding supplementary to. elements of petition for an order requiring a debtor of a judgment debtor to appear and answer, 1898. Executors and administrators, actions by and against. See, also, Probate contests, actions by and against executors or administrators — generally, 1029. for services against administrator of deceased executor, 1031. on note payable to bearer, 1030. to obtain compensation for attorney's services, 1031. to recover on accounts collected by an administratrix for the benefit of another — complaint held sufficient, 1031. upon bond of executor or former administrator of same estate, 1011. actions by and against representatives— generally, 1008. against estate of parent for support of a minor child, 532. for waste, trespass, conversion, etc., 1010. for waste, trespass, or conversion, committed by decedent, 1010. respecting estates of missing persons, 1018. to recover damages for neglect or misconduct of representatir*— recovery upon bond, etc., 1004. to recover penalty as liquidated damages for fraudulent sale bj repre- sentative, 1005. to recover property fraudulently disposed of by decedent, 1012. 2058 INDEX. [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Executors and administrators, actions by and against (continued). action — upon any special promise of representative to pay debts out of his own estate, 1013. administrator not a parcener within meaning of statutes relating to partition, 822. averments — as to decease, appointment of special administrators, etc. (form), 1794. as to ownership in decedent (form), 1794. as to possession by special administrators, and their succession by executors (form), 1795. citation to executor and surviving widow to show cause why family allowance should not be reduced (form), 1808. claims — complaint to allege presentation of claim, 1030. "claimant" and "affiant," 1030. complaint — against executor, or administrator, on cause of action existing against testator, or intestate (form), 16. by administrator to establish trust, and for cancelation of certificate of stock (form), 1025. by administratrix against the executor and devisee of another estate, which defendant estate is alleged to have been acquired by fraud practised against the decedent of the plaintiff's estate (form), 1023. by executor, or administrator, for conversion (form), 1598. by executor, or administrator, on cause of action existing in favor of testator, or intestate (form), 17. by executor, or administrator, suing as such (form), 16. by vendor against executor of purchaser (form), 1021. for embezzlement or concealment of property belonging to estate of decedent (form), 1019. to obtain judgment decreeing an estate to be owner of certain personal property and for temporary injunction, 1021. judgment in action against executors for conversion by testator, and allowing therefor as a claim against the estate, 1028. negligence in management of estate, 1032. orders — restraining order to executor, and order to show cause (form;, 1834. revoking letters testamentary (form), 1835. suspending power of executor, 1834. parties — wife sued as executrix, 1030. executor, administrator, trustee of express trust, etc., 185. executors may sue for a conversion, 1030. joining administrator in action upon joint obligation, 1031. suits by representative in a foreign jurisdiction, 1030. petition for revocation of letters of administration — counter petition, 1040. petition for substitution by executor or administrator of deceased plaintiff (form), 215. INDEX. 2059 [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969. J Executors and administrators, actions by and against (continued), possession of representative of estate for purposes of action, 1006. quiet title, averment of possession in deceased, effect of, 1031. waiver of tort by executor — suit on contract, 1030. Ex rel. actions. See State, actions by or against, etc. Exhibits. as part of pleading, 35. reference to in other counts, 35. rule as to, in Arkansas, 36. under the Missouri practice, 35. under Missouri practice exhibit not part of pleading for purposes of demurrer, 62. Extradition. See Habeas corpus. Extreme cruelty. See Divorce (causes for). Facts, pleading of. See Pleading in general. False imprisonment. averment of malice, etc., unnecessary, 349. complaint — common form (form), 338. in action in which special damages are averred (form), 338. in action to recover damages for false imprisonment of wife where husband is joined (form), 339. defenses — actions for false imprisonment, 340. denial of arrest (form), 340. justification of arrest upon suspicion of felony (form), 341. justification of arrest by officer under writ (form), 341. want of probable cause and denial of termination in favor of plaintiff (form), 340. judgment (form), 348. rule in malicious prosecution not applicable to false imprisonment, 349. unlawfulness of arrest is defensive matter, 349. Federal court, removal of cause to. See Removal of cause from state to federal court. Fellow-servant, negligence of, as defense. See Negligence of fellow-servant, as defense. Fictitious parties. fictitious parties generally, 232, 235. averment as to unknown defendants (form), 234. averment as to fictitious parties (form), 1797. directing amendment by inserting true name, 236. review on appeal, 236. substitution of true name should precede judgment. 235 2060 INDEX - [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-19M.J Findings of fact and conclusions of law. See, also, Judgment. additional findings— action to quiet title, for value of rents and profits, and for restitution (form), 1872. finding as to truth of allegations generally, 1883. findings as to averments not denied, 1882. findings of fact (form), 1871. conclusions of law (form), 1872, 1874. findings of fact and conclusions of law (form), 1871. general rule as to findings on separate counts, 1883. remedy where findings are imperfect — motion in arrest of judgment, 1883. Fire insurance. See Insurance. Forcible and unlawful entry and detainer. basis of action — defenses, 915. complaint — for forcible entry (form), 917. for forcible or unlawful entry or detainer, 912. for forcible entry and forcible detainer (form), 918. for unlawful detainer after expiration of term (form), 918. damages for failure to quit after notice, 1738. damages, measure of, for wilfully holding over, 1732. defense based upon agreement to execute new lease — unlawful detainer (form), 920. denial of forcible entry, damages, etc. (form), 919. Foreclosure of mechanics' liens. amending complaint changing to action on contract, 952. attorney's fees not included in lien, 953. averment as to verification of claim, 952. complaint— default of payment should be averred, 951. held sufficient after answer, 952. against owners for foreclosure of original and assigned liens of me- chanics and materialmen (form), 942. by materialman upon contract with owner (form), 940. to enjoin claimants from asserting or claiming, except in one action, under certain alleged mechanics' liens (form), 1662. defense in action to foreclose lien for reclamation, 952. defense asserting superior lien of mortgage not yet due (form), 946. filing of claim averred, 951. judgment for owner in mechanics' lien causes, and for materialmen against contractor (form), 947. judgment for materialmen and laborers in consolidated causes (form), 948. lien upon contract price deposited in court, 953. liens upon mining claims, 953. persons entitled to liens — contracts, 922. persons supplying power, implements, etc., entitled to lien, 936. specific denials (form), 945. time of continuance of lien, 937. INDEX. 2061 [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Foreclosure of mortgages on real property. foreclosure of mortgages on real property generally, 694. affirmative defenses in action to foreclose, 729. affidavit of publication (form), 725. affidavit of posting notice of commissioner's sale (form), 725. allegation of insurance by plaintiff (form), 706. amended and supplemental complaint by substituted plaintiff (form). 712 assignee of mortgagee against mortgagor — mortgagee guaranteeing and grantee assuming payment (form), 707! averments sufficient to entitle to decree, 730. bond of commissioner appointed to sell (form), 720. commissioner's certificate of sale on foreclosure (form), 721. commissioner's account of sales (form), 726. complaint for foreclosure (form), 705. to foreclose liens of mortgage against a religious corporation for breach of covenants, etc. (form), 708. by guardian ad litem in foreclosure and to set aside pretended release (form), 426. contesting validity of mortgage, 730. cross-petition and counterclaim thereto in foreclosure, 729. cross-petition setting up superior and paramount lien (form), 711. copy of mortgage attached as exhibit, 729. debt payable in instalments — proceedings, 702. decree of foreclosure and sale (form), 717. deed absolute as mortgage — when so regarded, 730. action to adjudge — complaint held sufficient, 730. defense to action to foreclose, 735. defense of non-joinder of assignee of mortgagor (form), 717. denial of assignment (form), 717. denial of recordation of mortgage (form), 717. elements of a complaint on a promissory note or other instrument secured by mortgage, 705. intervention by wife in foreclosure to set up homestead right, 729. joinder of actions — reformation and foreclosure, 729. judgment against insane person entered in foreclosure, 440. lost or destroyed mortgage — general denial, 730. mortgage barred when debt is barred, 730. notice of object of action (form), 728. oath of commissioner appointed to sell mortgaged property (form), 721. proceedings to foreclose mortgage upon real property, 695. recapitulation of commissioners' account in foreclosure (form), 727. receipt of moneys realized on foreclosure sale (form), 726. summons upon cross-petition in foreclosure not necessary — Kansas stat- ute, 728. verified report and account of sale (form), 722. 2062 INDEX. [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.J Foreclosure of mortgages on real property (continued), wife, when necessary party in action to foreclose, 246. writ in foreclosure, 1901. writ of execution for deficiency (form), 1893. Foreign corporations and their stockholders, actions against, generally, 616. capacity of foreign corporation to sue, when admitted, 271. complaint against foreign corporation — on an account stated for debt (form), 1281. to rescind a contract for breach of warranty of quality, and to recover part of purchase price paid (form), 1244. based upon liability of stockholders of foreign corporations (form), 616, 619. corporation when suing not required to allege compliance, 271. defense of statutory exemption from individual liability (form), 618. defense, in replevin, that foreign corporation plaintiff had not filed articles or designated resident agent (form), 1646. foreign corporations to file certified copy of articles, 249. judgment, or decree, in action by foreign corporation, 598. jurisdictional comity as to foreign corporations, 272. liability of stockholders, generally, 619. matters not considered under general demurrer, compliance by foreign corporation with state laws, 65. penalty for failure to file certified copy of articles, 261. record as to foreign corporation — what it must show, 272. statutes relating to foreign corporations, 271. statutes as to non-compliance construed, 271. venue of actions against foreign corporations, 1821. waiver by defendant, 272. Foreign judgment, defense of invalidity of. See Judgments, actions upon. Foreign laws. death by wrongful act, action for, in foreign state, 1504. defense that contract was void under the laws of a foreign state where executed (form), 309. defense based upon foreign law, 334. mistake of foreign laws, 304. Forfeitures. See Penalties and forfeitures. Formal facts, pleading of. 163. Former judgment, defense of. defense of former judgment (form), 248. in action for debt (form), 1285. action for restoration of lands and for value of rents and profits, 1087. action relating to trusts (form), 1153. INDEX. 2063 [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239- 19G9.] Former judgment, defense of (continued). dismissed attachment suit not a bar to replevin, 1650. divorce— former judgment as defense and counterclaim, 499. judgment of dismissal — when bar to another action, 271. petition failing to show prosecution to final judgment, 271. plea of former adjudication, 271. in divorce (form), 485. in trover or detinue, 1605. res adjudicata, defense of, 271. Franchise, usurpation of. See Quo warranto. Fraud and deceit. See, also, Fraudulent transfers and assignments; Re- scission, action for deceit— when maintainable— cause of action stated, 1581. actual fraud defined, 300. bill in equity — fraud in general terms, 1582. common-law count for money had and received not sufficient averment for cause of action for fraud, 1293. complaint— against vendor, for deceit connected with the sale of land (form), 1569. for cancelation of void contract on grounds of fraud and deceit (form) 1567. for fraud in obtaining goods on credit (form), 1568. for fraudulently inducing subscription to stock where device of a secret agreement is employed (form), 1572. for fraudulently procuring credit for another (form), 1569. for fraudulently representing goods sold to be the property of the seller (form), 1573. to recover property obtained by fraud and collusion, and to adjudge plaintiffs the owners thereof (form), 1575. to rescind contract of exchange for fraud (form), 1573. to rescind contract for purchase of stock induced by fraud (form), 1570. conclusions not pleadable, 1582. consent — when deemed to have been obtained by fraud, etc., 298. constructive fraud defined, 300. constructive fraud — manner of pleading, 1582. contracts not reduced to writing through fraud— when enforceable against party practising fraud, 318. creditors' suit, by one suing on behalf of himself and others (form), 1584. deceit defined, 1567. deceit — liability of deceiver, 1566. defendant's knowledge of the falsity must be averred, 1582. defense— as to value— when not permitted, 1583. of false representations and no consideration (form), 306. of false representations as to commission of a supposed felony (form) 307. 2064 INDEX. [References are to pages. Vol. I, pages 1-1238; Vol. n, pages 1239-1969.1 Fraud and deceit (continued). defense — of misrepresentation and concealment in obtaining insurance (form), 1352. of fraud and failure of consideration, 331. that contract does not conform to oral agreement, 1583. that writing declared upon in complaint departed from oral agreement in substantial and material respects, and was entered into through false and fraudulent representations of plaintiff's agent — action to recover for goods sold and delivered (form), 1578. denial of fraud (form), 1577. election between remedies in cases of fraud, 1583. essential allegations, 1581. fraud — actual or constructive, 299. general charge of insufficient, 1582. issue of essential in civil arrest proceedings, 1622. when not necessary to allege in action by beneficiary against trustee, 1157. Jurisdiction acquired by court of law, 1582. order to show cause and preliminary injunction — action to rescind con- tract for fraud (form), 1579. possession of escrow deed fraudulently obtained, 332. preventing recovery on fraudulent instrument, 1582. specific pleading of fraud, 332, 1582. waiver as to averring specific facts, 1582. words "fraud," "unlawful," "wilful," etc. — import of, in pleading, 1582. Fraudulent transfers and assignments. assignment antedating judgment, 1594. averment in defense that defendant has assets (form), 1590. complaint — against debtor, to reach demands due him from third parties, and for appointment of receiver (form), 1585. against judgment debtor, to set aside fraudulent judgment and sale (form), 1589. against judgment debtor and his assignee, to set aside fictitious assign- ment made to delay and defraud creditors (form), 1586. to set aside fraudulent conveyance of real estate made by judgment debtor (form), 1587. creditor's suit to reach assets of a street railway company, 1594. decree confirming deed in action to set aside the same as an alleged fraudulent conveyance (form), 1592. decree following order sustaining demurrer to complaint and refusal to amend (form), 1593. defense that deed was made for a valuable consideration (form), 1591. denial that conveyance was fraudulent (form), 1590. denying return of execution (form), 1590. denying possession of property belonging to the debtor (form), 1590. INDEX. 2065 [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969. J Fraudulent transfers and assignments (continued), general creditor's — rule as to, 1593. exception to rule, 1594. fraudulent intent — rule as to pleading, 1594. intent to hinder, delay and defraud, 1594. proceeding by creditor's bill when other proceedings are Inadequate, 1594. Gambling devices. See, also, Unlawfulness of contract, defense of. defense in replevin — justification of the taking of outlawed and gambling devices (form), 1646. Gaming debt. See Unlawfulness of contract, defense of. Garnishment. See Attachment and garnishment. General demurrer. See Demurrer to complaint; Demurrer to answer; De- murrer to reply. General denial. See Answer; Issues; New matter. Goods sold and delivered. See Debt, actions for. Guaranty and suretyship. guaranty and suretyship, generally, 1399. complaint — against guarantor of mortgage, to recover foreclosure defi- ciency (form), 1402. against guarantors of a promissory note (form), 1406. against principal and sureties on contract for work (form), 1402. against surety, for payment of rent (form), 1404. by surety against principal, for indemnity (form), 1403. by surety, for money paid on undertaking on appeal (form), 1399. by surety, on lease, against principal (form), 1400. on agreement to answer for price of goods sold to a third person (form), 1401. on guaranty of antecedent debt (form), 1401. on original obligation of a promisor, to repay moneys advanced to another upon the order of the promisor, the order itself being lost (form), 1404. defense that guarantor had no notice of non-payment of note until after insolvency of maker (form), 1408. defense that sureties signed notes without consideration, and at the instance of the plaintiff only (form), 1409. Guardians of minors and guardians ad litem. See also Adoption; Incapacity to contract, defense of; Minor children, custody and support of. action — for injury or death of minor child or ward, 191. to recover for estate's benefit, money, goods, etc., concealed, embezzled, etc., 1066. upon guardian's bond, 1068. 2UG0 INDEX. [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Guardians of minors and guardians ad litem (continued), allegation as to guardian, 440. appearance by general guardian, 440. application or petition where minor is competent to name guardian (form), 422. common law — rule as to minors, 432. complaint — against guardian of minor — or insane or incompetent person (form), 424. by guardian ad litem to allege appointment, 433. by guardian ad litem against owner of vicious animal (form), 1535. by guardian ad litem in foreclosure, and to set aside pretended release and discharge of mortgage (form), 426. by guardian ad litem to recover damages for personal injuries (form), 425. by ward against guardian for waste (form), 425. for negligent shooting — injuries caused by — action by next friend, 1537, confession of issue by guardian, 440. duty of general guardian to defend, 432. formal parts of answer — by infant (form), 58. by insane person (form), 58. general denial not sufficient to raise issue of appointment, 433. guardian ad litem — how appointed, 417. appointment upon ex parte application, 432. practice as to appointment most favored, 440. appointment by filing petition the better practice, 432. to represent minor, 432. guardians to appear and defend for wards, 1064. infant — to appear by guardian, 414. suing by general guardian (form), 19. suing by guardian ad litem (form), 19. jurisdiction to appoint — how obtained, 432. non-appointment of guardian — when mere irregularity, 433. note executed by infant for necessaries, 433. order appointing guardian ad litem for a minor (form), 423. order permitting filing of complaint in intervention by guardian ad litem (form), 423. petition where minor may not name guardian (form), 422. powers of guardian generally as to the estate of the ward, 1065. receipt and release — by guardian ad litem (form), 431. by parent of right of action, etc., for injuries to minor child (form), 431. removal of guardian, 1069. rights of minors, how enforced. 412, Habeas corpus proceedings. commitment without reasonable or probable cause, 1947. extradition, 1948. petition for writ (form), 1944. INDEX. 2067 CReferences are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Habeas corpus proceedings (continued), order granting writ (form), 1945. order — denying writ and remanding prisoner (form), 1947. for discharge of prisoner (form), 1947. directing trial court to give a petitioner in habeas corpus proceedings time in which to pursue his remedy by appeal from judgment, 1947. plea of once in jeopardy, 1948. return to writ of habeas corpus or certiorari other than official (form), 1946. writ of habeas corpus (form), 1945. writ — when denied, 1948. when granted, 1948. Habitual Intemperance. See Divorce (causes for). Heirship and interest in estates, actions to determine, contests by heirs, 1047. California statute construed, 1063. complaint to determine heirship and interest in an estate (form), 1062. jurisdiction of courts to determine heirship interest in estates, etc., 1063. proceedings generally to determine heirship, ownership, and interest in estates, 1048. Hiring of personal property. See Personal property, hiring of. Homestead. See, also, Homesteads, appraisal of. foreclosure — intervention by wife to set up homestead right, 729. wife necessaiy party in action to foreclose upon homestead, 246. Homesteads, appraisal of. appraisers — appointment of, 1165. compensation of, 1174. oath of, 1166. report of, 1168. bids to exceed exemption, 1171. costs — provisions as to, 1175. decree in action for foreclosure of mortgage, and providing for home- stead exemption fund (form), 1177. determining value and divisibility, 1167. filing petition, 1164. husband and wife must be joined in homestead action, 1179. injunction — when lies against forced sale, 1179. money equal to homestead exemption protected after sale, 1173. notice of hearing and service thereof, 1164. order directing sale — when made, 1170. petition to appraise, 1163. petition to appraise homestead after levy of execution (form), 1175. 2068 INDEX. [References are to pages. VoL I, pages 1-1238; Vol. n, pages 1239-1969.] Homesteads, appraisal of (continued). procedure on filing of petition (under California statutes), 117i. proceedings on execution against homestead, 1157. proceeds of sale — application of, 1172. setting apart homestead exemption, 1168. Hotelkeepers. See Innkeepers. Husband and wife as parties. See, also, Debt, actions for, 246. Idiocy. See Incompetents. Illegality of contract. See, also, Unlawfulness of contract; Statute of frauds. defense of illegality of contract, 333. gambling or lottery scheme, 333. Implied contracts. See Debt, actions for; Money paid for the benefit of another, assumption of obligation by acceptance of benefits, 302. implied contract defined, 318. Impotency. See Annulment of marriage (causes for). Imprisonment. See False imprisonment. Incapacity to contract, defense of. acceptance — absolute and qualified, 301. consent — apparent, when not free, 298. mutuality of, 299. ratification of contract, void for want of, 302. revocation of proposal, 301. when voidable, 298. defense — based upon incapacity of parties to contract, 2S&. not available under general denial, 333. of incapacity to contract — minority (form), 296. defendant an Indian (form), 297. unsoundness of mind (form), 296. elements, essential, of contract, 295. essentials of consent, 298. incapacity to contract, generally, 333. minors and insane persons, capacity of, 296. waiver by failure to plead, 333. Incapacity to sue. See, also, Demurrer to complaint; Incapacity to contract, defense of. as to curability of, 273. defense that discharge and restoration to capacity were unauthorized and void (form), 438. proof as to capacity of foreign corporation to sue, 273. substance of petition sufficiently showing capacity to sue, 440. INDEX. 2069 [References are to pages. Vol. I, pages 1-1238; Vol. IT, i vges 1239-1969.] Incompetents. See, also, Insane persons, actions by ana against their guardians; Insanity, proceedings in; Incapacity to sue. action by incompetent person, through his guardian, to recover trust moneys held by an administrator to his use (form), 434. allegation of incompetency (form), 1024. Indebitatus assumpsit. See Assumpsit; Debt, actions for. Indemnity bonds. See Bonds and undertakings. Infants, actions by and against. See Guardians, actions by and against. Infants, answers by, formal parts. See Answer. Infants, offenses by. See Juvenile courts. Information and belief, pleading on. See, also, Pleading in general; Com- plaint (or petition) ; Answer, allegations on information and belief — when not permitted, contempt proceedings — affidavit upon information and belief, 1866. Inheritance, injuries to. See Covenants, title, and possession of real property. Injunction. See, also, Nuisance. complaint — to enjoin obstruction maintained by railroad corporation along public highway (form), 1661. for injunction against waste (form), 1659. for injunction pendente lite to restrain continuance of trespass (form), 1666. discretion of court — granting temporary injunction pendente lite, 1671. California rule as to, in granting or continuing injunction, 1671. is legal one, 1671. dissolving injunction upon appeal, 1672. dissolving temporary injunction — rule, 1671. ejectment, when the proper remedy, and not injunction, 1670. exception to the rule as to dissolving writ where matters are denied In answer, 1671. injunction — generally, 1651. nature of remedy of, 1670. to prevent breach of an obligation, 1652. to prevent trespass by interference with right, 1238. will not lie to enjoin collection of tax for mere informalities, 692. judgment for defendant dissolving temporary injunction, etc., in action to restrain church society from converting church property, mis- directing its use, etc. (form), 1668. mandatory injunctions not favored, 1671. motion to dissolve, 1671. decision on merits not permitted, 1672. Jury's PL— 131. 2070 INDEX. CReferences are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Injunction (continued). order — dissolving or modifying injunction (form), 1667. granting motion dissolving injunction (form), 1667. to show cause, and interlocutory injunction (form), 1663. petition for injunction, when sufficient. 1671. plain, speedy, and adequate remedy at law precludes injunction, 1670. prayer for injunction, damages, etc. (form), 1204. preliminary injunction restraining diversion of waters of river (form), 1215. preventive relief — how granted, 1651. prohibition to restrain injunction proceedings, 893. provisional injunctions, 1652. remedy as against party not a trespasser, 1670. restraining order in equity should be definite and certain, 1671. rights protected by statue not abridged, 1670. showing to entitle to injunction to restrain collection of tax, 692. temporary injunction pendente lite, conditioned on giving of bond by plaintiff (form), 1664. temporary writ of injunction improvidently issued, 1672. undertaking on injunction (form), 1666. when injunction may and when it cannot be granted, 1652, 1653. when injunction will not lie, 1671. Injuries. See Damages; and particular actions founded upon wrongs. Innkeepers. complaint — against an innkeeper, for loss of baggage (form). 1308. against innkeeper, for refusal to receive and lodge guest (form), 1309. by innkeeper, for board and lodging (form), 1310. by guest, to recover for loss of pocket-book containing money (form), 1309. defense that plaintiff was not a guest (form), 1310. defense where moneys or other valuables lost were not deposited with innkeeper for safe-keeping (form), 1310. , liability of innkeepers, 1301. limiting of liability, 1303. lien for charges on baggage, 1306. Insane persons, actions by and against their guardians. complaint — against guardian (or committee) of lunatic, etc. (form), 20. by guardian (or committee) of lunatic, etc. (form), 20. to recover sum for care, etc., of insane person confined in state hospital (form), 435. foreclosure judgment against insane person, 440. formal parts of answer by insane person (form), 58. insane person must be made party before jurisdiction to appoint guardian is acquired, 440. INDEX. 2071 [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Insane person, answer by, formal parts. See Answer. Insanity, proceedings in cases of. affidavit of insanity (form), 1949. certificate — of arresting officer (form), 1950. of clerk to affidavit, etc., judgment of insanity, order of commitment, etc. — annexed to judgment (form), 1954. of medical examiners (form), 1950. charges of insanity, and proceedings thereon, 1948. judgment of insanity and order of commitment of insane person (form), 1952. statement of facts (form), 1951. statement of financial ability (form), 1954. warrant of arrest — insane person (form), 1949. Inspection of writings. See Bill of particulars. Instalment contracts. See Contracts, generally. Instructions. See, also, Trials. abstract instruction — when prejudicial, 1864. rale as to, not an inflexible one, 1864. erroneous instruction — when not prejudicial, 1864. not error to refuse incorrect charge, 1S64. repetitions in charges properly refused, 1864. Insurance. insurance, generally, 1335. allegation of renewal (form), 1350. any breach pleadable, 1357. averment — as to ownership, 1357. of waiver of condition (form), 1351. where plaintiff purchased the property after Insurance (form), 1351. complaint — by assignee in trust for wife of insured (form), 1344. by executor on life policy (form), 1343. by mortgagee as assignee of the policy (form), 1337. by wife, partner, or creditor of insured (form), 1344. for partial loss and contribution — marine policy (form), 1350. upon agreement to insure and give policy (form), 1342. upon fire insurance policy (form), 1336. upon fire insurance policy — total loss (form), 1337. upon fire insurance policy — with averments as to waiver of written statement, (form), 1339. upon marine policy — vessel lost by perils of the sea (form), 1349. upon open marine policy (form), 1348. upon valued marine policy (form), 1347. conditions — general averment of performance of, 1357. 2072 INDEX. [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Insurance (continued). defense — in general, 1357. in action to recover insurance money, 1356. of forfeiture of policy for non-payment of premium (form), 1353. of fraudulent overvaluation, 1357. of loss remotely caused by peril not insured against, 58. of overinsurance without consent of insurer (form), 1352. of transfer without insurer's consent (form), 1354. that fraudulent account of loss was given (form), 1354. that risk was extra-hazardous (form), 1354. that vessel was unseaworthy (form), 1355. based upon denial of loss (form), 1351. setting forth "fallen building" clause in action upon fire insurance policy (form), 1352. denial — of averments as to waiver of conditions, etc. (form), 1353. of furnishing proofs of death (form), 1353. of indebtedness under the policy (form), 1353. of loss from peril or risk insured against (form), 1355. of plaintiff's interest (form), 1351. of policy (form), 1351. . insurable interest not required to be averred, 1356. life insurance — essentials of a complaint in action to recover insurance moneys, 1356. property insurance — general rule as to pleading loss, 1357. Intemperance, habitual. See Divorce (causes for). Interest. See Damages. Interpleader. interplea in attachment, 1701. interpleader — complaint in (form), 223. as to corporation stock in escrow, 601. to determine beneficial interest in life insurance policy (form), 1345. substitution of another person as defendant, 207. Intervention. intervention — by guardian ad litem, order permitting (form), 423. by trustee, 201. when and how pleaded, 210. in action to determine water-rights and to restrain diversion of water by canals, etc. (form), 1205. in attachment proceedings, 1701. in ejectment, 1135. Intoxicating liquors. See Civil damage acts. Involuntary trusts. See Money had and received. INDEX. 2073 [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Irrelevant pleadings. See Sham and irrelevant pleadings. Irresistible superhuman cause, as defense, defense — of so-called act of God, 277. alleging irresistible superhuman cause — act of God (form), 268. goods lost by unavoidable accident (form), 1477. Irrigation and reclamation. See, also, Water-rights and riparian owners, averments — damage to crop, 1237. ownership of lands, and as to system established by contract for irri gation (form), 1125. right to use pipe-line as tenant in common (form), 1226. dependence upon use of pipe-line (form), 1227. complaint to enjoin interference with irrigating waters furnished through pipe-line over defendant's land (form), 1225. conditional decree, 1238. constitutionality of acts, 1237. legality not open to collateral attack, 1237. Kansas drainage law construed, 1237. decree approving and confirming proceedings authorizing the issue and sale of bonds of an irrigation district (form), 1235. defense in bar of action to obtain decree enjoining sale of bonds of irriga- tion district organized under act of the legislature (form), 1231. defense of failure of benefits by reason of inexcusable non-feasance upon part of commissioners — action to foreclose statutory lien on swamp land for reclamation work (form), 1232. diversion of irrigation ditch — changing point of same, 1237. measure of damages for breach of irrigation contract, 1237. perpetual water-rights — reference, 1237. rights of lower riparian claimants, 1238. specific demand — when not necessary to aver, 1237. Issues. application to present new issues by amendment, 107. demurrable issue not raised by the answer, 68. effect of consolidation of causes as to issues and pleadings, 1865. issue of appointment of guardian not raised by general denial, 433. issues not raised by general denial, 71. new issues, when not raised by answer in action to recover for necessa- ries, 514. striking out irrelevant issues where defense is under general denial, 71. traverses and defenses, 70. Jeopardy, plea of. See Habeas corpus. Joinder of defenses or counterclaims. See Counterclaim and set-off. 2074 INDEX. [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Joinder, misjoinder, and non-joinder of parties. See, also, Demurrer to com- plaint, or petition, actions affecting persons severally liable, 241. defect of parties, or non-joinder, 66, 1210. defense — defect of parties defendant or non-joinder (form), 595. effect of failure to object to husband's non-joinder, 246. husband improperly joined, 246. husband and wife, joinder of, in action relating to the homestead, 1179. joinder of wife in action to foreclose upon homestead, 731. joinder of stockholders as defendants, 619. joinder of defenses or counterclaims, 86. joint adverse interest not essential to joinder, 246. joint tort-feasors, 246. misjoinder of parties, demurrer for, 66. misjoinder of parties plaintiff, defense of, in action relating to water-rights (form), 1210. misjoinder and non-joinder of parties — generally, 236. objection to defect, etc., or misjoinder — how raised, 245. question of misjoinder not affected by pleading legal conclusions, 245. non-joinder of necessary parties, defense of, in action relating to water- rights (form), 1210. parties defendant in an action to determine conflicting claims to real property, 238. parties holding title under a common source, when may join, 239. partners as parties plaintiff, non-joinder of, 1323. who may be joined as defendants, 237. who may be joined as plaintiffs, 236. Joinder, or uniting of causes. causes not separately stated, 66. cause must affect all parties defendant, 78. complaint praying for actual and exemplary damages, 79. complaint where one of several counts is good, 79. defense of misjoinder of causes of action — action relating to water-rights (form), 1209. demands for money received, 79. joinder of causes — generally, 74, 78. actions on contract and for tort, 79. action for injuries to property joined with action on a bond, 682. demand for recovery of purchase money joined with claim for damages, 128. joinder of action for failure to levy with action for conversion, 682. joinder of action for specific performance with action for damages, 1773. joinder of legal and equitable defenses, 79. plea to jurisdiction united with plea to the merits, 79. rule as to "splitting" cause, 79. INDEX. 2075 [References are to pages. Vol. I, pa^os 1-1238; Vol. II, pages 1239-19C9.] Joinder, or uniting of causes (continued). objection as to misjoinder — when it may be raised — statutes construed, 80. misjoinder, question of, raised by motion, 80. specifying misjoinder of causes, 45. statement in separate counts, 79. sufficient statement joined with defective count, 80. tort and breach of contract — pleading in one count, 1479. tortious injury to property — to recover for, 79. Joint debtors. See, also, Contribution between joint debtors, dismissal as to one or more joint debtors, 1870. pleadings in actions against joint debtors — what constitutes, 844. Judgments, or decrees. See, also, Judgments, actions upon; Judgments, ar- rest of; Judgments, vacating of; Judgment upon the pleadings; Verdicts. (For judgments or decrees in actions and proceedings generally, see the specific titles.) alternative judgment for plaintiff in replevin (form), 1636. amended judgment for defendant (form), 1880. confession of judgment (form), 1881. without action, 1881. consent of plaintiff to reduction of judgment (form), 1878. contempt — judgment for, must specify the contempt, 1866. entry of judgment — confessed (form), 1882. Iowa statutes relating to, 1883. irregular entry, 1883. judgment, distinguished from entry, 1883. joint judgment against defendants guilty of tort, 1884. judgment — for defendant (form), 1875. for plaintiff by the court (form), 1874. for plaintiff on verdict — entry by clerk (form), 1876. of dismissal — entry by clerk (form), 1876. of default— entry by clerk (form), 1877. of nonsuit (form), 1868. in action for alienating affections, 403. in civil action for assault, etc., 367. respecting boycotts and unlawful strikes (form), 1561. actions for breach of contract to sell (form), 1261. in cancellation of instruments (form), 1800. in proceeding for contempt of court against a witness for refusing to answer a relevant and material question (form), 1862. recitals and judgment for a contempt of court committed in the presence of the court (form), 1862. in actions for death by wrongful act (form,, 1501. in ejectment (form), 1132. for false imprisonment, 348. for fraudulent transfers, etc. (form), 1592. 2076 INDEX. [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Judgments, or decrees (continued). judgment — decree, foreclosure sales, and report of sales (forms), 717. for foreclosure of mortgage, and providing for homestead exemption fund (form), 1177. in foreclosure of chattel mortgages (form), 1415. foreclosure of mechanics' liens (form), 947. in injunction (form), 1663. relating to irrigation and reclamation (form), 1235. upon issue of law where unliquidated damages are claimed, 1884. in action for libel, or slander, 387. in action for malicious prosecution, 360. in proceeding for maintenance of minor children (form), 536. for exclusive control of minor children, 530. to quiet title (form), 784. judgment upon the pleadings (see separate index heading), 1885. action relating to title and possession of real property (form), 1088. in replevin (form), 1637. for rescission (form), 1789. in specific performance (form), 1770. in actions relating to water-rights and riparian owners (form), 1217. maintenance of wife, decree for— when court may not modify, 515. notices of decision, 1829, 1830. nunc pro tunc order reducing judgment (form), 1879. order of sheriff's sale of real estate under judgment (form), 1880. order and decree in actions for fraud, 1579. personal judgment not valid against non-resident, 1884. satisfaction of judgment for costs (form), 1879. showing of meritorious defense not required on motion to vacate, where decree is void, 130. Judgments, actions upon. actions upon judgments generally, 1439. affidavit accompanying application for leave to sue upon a judgment (form), 1440. complaint— for judgment wholly unpaid (form), 1441. foreign judgment of court of general jurisdiction (form), 1444. foreign judgment of inferior tribunal (form), 1444. judgment assigned (form), 1443. judgment partially satisfied (form), 1442. judgment for deficiency after foreclosure sale (form), 1442. decree in proceeding to vacate former judgment, 1447. defense— of payment of judgment (form), 1445. of invalidity of foreign judgment (form), 1446. of invalidity of judgment against non-resident (form), 1446. of vacation of judgment (form), 1445. that judgment was obtained by fraud (form), 1445. INDEX. 2077 [References are to pages. Vol. I, pages 1-1238; Vol. n, pages 1239-1969. 1 Judgments, actions upon (continued), judgment procured by fraud, 1447. leave to sue upon a judgment, 1439. notice of motion for (form), 1439. order granting (form), 1441. remedy against an illegal judgment, 1447. scire facias proceeding to revive the lien of a Judgment, 1447. Judgment, arrest of. See, also, Judgments, vacating of. Motions, motion in arrest of judgment — generally, 1884. for defect in verdict, 1884. remedy by, where findings are imperfect, 1883. when defendant may invoke motion, 1884. Judgment, pleading of. See, also, Pleading, in general, pleading a judgment or order, generally, 167. Judgment, vacating of. See, also, Judgments, arrest of; Motions. affidavit of merits by attorney on motion to set aside judgment, 131. authority to vacate or alter judgments or orders, 130. decree in proceeding to vacate former judgment, 1447. irregularities upon which motion to set aside judgment is based, 130. motion to vacate judgment for error of fact — Missouri practice, 1884. motion to vacate a judgment, charging the fact of death, 1885. relief provided may be invoked by all parties, 130. Judgment upon the pleadings. judgment upon the pleadings — generally, 1885. in action to quiet title (form), 788. judgment upon issue of law where unliquidated damages are claimed, 1884. motion for judgment — not substitute for demurrer, 1885. admits truth of pleas, 1885. proper when denials are only of conclusions, 1885. for judgment non obstante veredicto, 1884. relation of inconsistent defenses to the motion, 1885. Arizona practice, 1885. waiver of motion, 1885. Jurisdiction. affidavit as a basis of jurisdiction, 1849. agreeing to reset a cause, 1810. alimony — jurisdiction to order payment of, 515. answer praying for affirmative relief, 1810. challenge to jurisdiction, how regarded, 62. consent as conferring jurisdiction, 1810. consenting or agreeing to a continuance, 1810. 2078 INDEX. [References are to pages. Vol. I, pages 1-1238; Vol. tl, pages 1239-1969.] Jurisdiction (continued). contempt — jurisdiction to punish for, 1865. authority of judges at chambers, 1865. proceeding in vacation, 1865. before United States commissioner, 1865. where application to punish for should be made, 1866. defects of jurisdiction as to the person — how charged, 66, 67. discretionary authority of courts of equity to consolidate causes, 1865. entry of judgment terminates jurisdiction, 1811. errors in exercise of jurisdiction, 893. essentials of jurisdiction, 1810. foreign jurisdiction — suits by representatives in, 1030. general jurisdiction of state courts coextensive with their sovereignty, 1810. government as party — jurisdiction of state courts, 1811. guardians ad litem, jurisdiction to appoint — how obtained, 432. inherent authority of courts to order dismissal, 1869. insufficiency of pleading does not affect, 62. jurisdiction of actions — claims against estates of deceased persons, 1030. jurisdiction to render personal judgment, 1810. personal judgment not valid against non-resident, 1884. local actions, 1811. minors as apprentices, jurisdiction of courts to bind, 555. non-resident debtors, 1810. notice of motion for judgment on the pleadings (form), 1877. order granting motion for judgment on the pleadings on sustaining demurrer without leave to amend (form), 1878. publication of notice as prerequisite to jurisdiction, 1811. question of jurisdiction on demurrer, 65. statutory penalties, jurisdiction to recover, 1811. transitory actions, 1811. Jurisdiction, absence of, as ground for demurrer. See Demurrer to complaint. Jurisdiction, denial of. See Answer. Jurisdiction, denial by foreign corporation. See Answer. Justification, as defense. See Wrongs, defenses to actions for; Libel; Slander; Arrest and bail. Juvenile courts. affidavit on application for a permit for a minor child to work — California (form), 1968. approval of commitment by superior judge (form), 1968. bench-warrant — California (form), 1965. certificate of service of citation — California (form), 1962. citation to parent or custodian — California (form), 1961. INDEX. 2079 [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Juvenile courts (continued). commitment of delinquent child— California (form), 1964. commitment of dependent child— California (form), 1963. endorsement of receipt of commitment (form), 1967. notice to parents, custodian, or guardian — Utah (form), 1962. order— admitting to bail— California (form), 1966. granting permit (form), 1969. of commitment to school of industry— from court of record, California (form), 1966. of commitment to boys' school of industry — from court of limited juris- diction, California (form), 1967. directing time of service of bench-warrant — California (form), 1965. petition for arrest and examination of a delinquent minor — California (form), 1961. proceedings in juvenile courts, generally, 1958. recommendation that permit issue (form), 1969. references to statutes, 1960. request for information concerning delinquent endorsed on commitment (form), 1967. return endorsed upon bench-warrant — California (form), 1965. sheriff's certificate of service of subpoena— California (form), 1963. subpoena — California (form), 1963. Labor unions. See, also, Boycotts; Unlawful strikes; Conspiracies and monopolies, right to trade-names, 1613. Laches, defense of. affirmative showing of plaintiff's laches not required, 276. authorities requiring affirmative showing, 276. defense of laches (form), 595. action against a city board (form), 666. delay — when excuse for will not avail, 277. mere delay will not bar action, 277. rule as to laches, 275, 276. rule as to pleading laches — exception, 276. suit brought after statutory time, 277. Land, actions relating to. See Covenants, title and possession; Vendor and vendee; Ejectment; Waste; Trespass; Water-rights and riparian owners; Builders' contracts; Forcible and unlawful entry and detainer; Foreclosure; etc. Landlord and tenant. landlord and tenant generally, 1106. action for possession with right of re-entry, 1108. complaint — against assignee of lessee (form), 1111, 2080 INDEX. [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Landlord and tenant (continued). complaint — against lessee by grantee of reversion (form), 1112. against landlord on covenant for quiet enjoyment (form), 1114. by lessee against lessor on covenant to keep in repair (form), 1113. by lessee for non-completion of building (form), 1115. for purchase money for surrender of lease (form), 1115. for rent reserved in lease (form), 1111. for use and occupation (form), 1111. for use and occupation of pasture (form), 1114. on covenant to insure (form), 1113. counterclaim for damages, 1118. damages for breach of covenants of a lease, 1118. defense — of assignment by lessee (form), 1117. of eviction before rent payable (form), 1116. of destruction by accidental fire (form), 1117. of invalidity of lease sued upon (form), 325. of surrender of premises and release (form), 1117. by surety, alleging extension of time without his consent (form), 1117. forfeiture for non-payment of rent, 1118. quantum meruit where written lease is denied, 1118. lease, change of terms, 1110. remedies of lessees against lessors and their assigns, 1109. terminating tenancy at will, 1107. Laws of foreign state. See Foreign laws. Lease. See Landlord and tenant. Levy. See Sheriffs and constables. Liability of employers. See Employers' liability cases, and actions against employees. Liability of stockholders. See Stockholders' liability, actions based upon. Libel. action embracing different libelous articles, 389. affirmative proof of mitigating circumstances — special pleading, 391. allegations upon information and belief, 389. answer in action for libel or slander, 174. averments — loss of credit (form), 384. loss of custom (form), 384. loss of employment (form), 383. loss of situation (form), 384. complaint in action for libel— generally, 173. when insufficient, 388. for damages for libelous publication against public officer (form), 376. charge against public officer importing corruption, etc., 389. INDEX. 2031 [References are to pages. Vol. I pages 1-1238; Vol. II, pages 1239-1969.] Libel (continued). complaint in action for libel— charge of dishonesty in business (form), 378. charging criminal offense (form), 380. charge of crime — words not libelous in themselves (form), 380. charge of perjury requiring colloquium (form), 381. directly charging perjury (form), 381. libel relating to profession (form), 377. libel respecting plaintiff's trade (form), 379. words exposing to hatred, contempt, etc. (form), 374. words libelous in themselves (form), 373. colloquium and innuendo, 390. what colloquium is required to show, 390. purpose of innuendo, 390, 391. matters of inducement, 391. conclusive presumption of malice, 389. counterclaim of slander against slander not permissible, 390. damages — rule as to assessing, 392. averments of special damages, 383. exemplary damages, 392. punitive damages, 391. special damages — when unnecessary to allege, 391. when damages presumed from publication, 391. defense — in mitigation of damages, 389. of "privilege" or "fair criticism," 389, 390. of truth of publication — when not permissible, 390. of fair report of public official proceedings (form), 386. of fair and true report of the proceedings of a lawful public meeting (form), 386. of justification — charge general (form), 384. of justification — charge specific (form), 384. of justification — charge of perjury (form), 385. of justification — truth of charge (form), 385. of justification — charge of want of chastity (form), 385. of privileged report made without malice — communication (form), 386. defenses — (1) denial, (2) justification, (3) in mitigation of damages (form), 387. general verdict — when properly returned, 392. judgment on verdict in open court in action for libel (form), 387. libel — generally, 369. defined, 370. by corporation, 389. privileged publication defined, 372. proof of libel, 391. degree of proof required, 391. 2082 INDEX. [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Libel (continued). proof of libel — effect of admission that article was libelous per se, 389. proof or showing in libel cases under general issue, 391. publication of libel against candidate for office, 389. Lien, claim of, in actions and defenses. defense in replevin of lien for services for manufacturing (form), 1644. defense by common carrier, claiming lien for services — replevin, by the United States of America, to recover goods and supplies trans- ported (form), 1643. judgment in action to establish equitable subcontractor's and laborer's liens against municipal improvement fund (form), 667. lien of depositary for hire, 1314. Liens of mechanics. See Foreclosure of mechanics' liens. Limitations, pleading of statute. See Statute of limitations, pleading of. Lis pendens (form), 1829. Loans. See Money lenL Lost or destroyed corporation records, action to restore, 620. action to restore lost or destroyed certificates, 620, 622. notice of application for restoration of destroyed records, etc. (form), 625, order fixing time and place for hearing and directing clerk to give notice (form), 626. petition — California (form), 624. proceedings to restore lost or destroyed records, 624. Lunacy. See Annulment of marriage (causes for) ; Incapacity to contract; Insane persons, etc.; Insanity. Maintenance of wife. See, also, Divorce, actions for. action for necessaries supplied to the wife, 508. alimony and action for support and maintenance, 501. application for alimony — nature of, 515. averment as to reasonable amount of alimony, 514. complaint — for alimony (form), 509. against the husband for goods furnished the wife (form), 511. for maintenance of non-resident wife (form), 512. for necessaries furnished to wife (or minor child) of defendant (form), 511. to recover amounts agreed to be paid in lieu of alimony (form), 510. decree providing for maintenance — when court may not modify, 515. denial that things furnished were necessaries (form), 514. ex parte order for alimony, 515. jurisdiction to order alimony, 515. INDEX. 2083 [References are to pages. Vol. I, pages 1-1238; Vol. II, pages 1239-1969.] Maintenance of wife (continued). liability for necessaries as affected by abandonment or agreement to separate, 509. new issues — when not raised in the answer, 514. property subject to provisions for payment of alimony, etc., 507. Malicious prosecution. allegations of malice and want of probable cause necessary, 360. answer in action for malicious prosecution, 357. complaint — for malicious arrest in civil action (form), 352. for malicious prosecution of wife, wherein the husband is joined (form), 353. for malicious prosecution and conspiracy against sheriff and his sureties (form), 675. to recover damages for malicious prosecution and for conspiracy (form), 355. for procuring arrest for larceny (form), 351. for procuring indictment of plaintiff (form), 352. damages, 361. defense — that act of arrest was without the scope of agent's authority, 358. that arrest was caused by act of plaintiff's agent, 359. by officer, 361. defenses — (1) denials, (2) act of defendant's agent in procuring plaintiffs arrest not within scope of agent's authority, (3) that arrest was caused by plaintiff's agent (form), 357. effect of judgment, 361. final termination of action, 361. joinder of husband and wife, 361. judgment upon verdict — action wherein the husband is joined (form), 360. malicious prosecution, generally, 350. substance of complaint held sufficient, 361. Mandamus. mandamus, generally, 862. action brought by relator, 881. alternative writ of mandamus (form), 877. answer — when insufficient to put in issue the allegations of the petition for the writ, 882. application limited to the petition, 881. change of venue — mandamus to secure, 1822. how mandamus proceedings are commenced, 881. mandamus appropriate remedy to compel inspection of books, etc., of corporation, 602. mandamus by judge of a court in name of the state — rule where court declines jurisdiction, 882. mandate directed to a court or judge, 881. master and apprentice, mandamus to enforce right of parent, 555. 2084 INDEX. [References are to pages. Vol. I, pages 1-1238? Vol. II, pages 1239-1969. J Mandamus (continued). notice — writ defective as to, 881. objection as to relator raised by demurrer, 881. objection to the sufficiency of the petition — defenses, generally, 868. order that alternative writ issue (form), 877. original action for mandamus against a chancellor of a chancery court for a writ of procedendo or order from the supreme court directing and requiring the chancellor to try a cause transferred to the chancery court (form), 873. peremptory writ of mandamus (form), 879. performance of official act requiring expenditure of money, 881. petition for writ of mandamus (form), 870. for alternative writ (form), 870. to compel county auditor to issue a warrant on an account allowed by a board of supervisors (form), 870. prayer for peremptory writ, 870. purpose of writ — by what court issued and to whom directed, 863. return to application for alternative writ — original proceeding in man- damus to compel a judge of a court of record to set aside an order of dismissal entered in a cause pending, and to reinstate the cause (form), 878. rule where court declines jurisdiction, 882. substitution of attorneys — mandate to compel, 881. verification of answer to the petition, 867. writ — when issued, and upon what, 863, 865. writ of mandate to auditor to settle for tax moneys, 693. Marine insurance. See Insurance. Maritime agreements. See Charter-party. Marriage. See Annulment of marriage; Breach of promise of marriage; Divorce. Married women as parties. action by wife in her own right, 201. complaint by wife suing alone (form), 188. defense of coverture of the defendant (form), 1259. husband and wife sued together — when wife may defend, 185. married woman as a party — when husband to be joined, 185. wife sued as executrix, 1030. Master and apprentice. action for enticing servant away, 555. complaint by apprentice against master (form), 553. enticing away apprentice (form), 554. by master against father of apprentice (form), 554. enticing away apprentice, 552. INDEX. 2085 [References are to pages. Vol. I, pages 1-1238; Vol. n, pages 1239-1969.] Master and apprentice (continued). infant when allowed to choose for himself, 555. jurisdiction of courts to bind minors as apprentices, 555. liability of master for breach of his covenant, 547. liability of, and proceedings against, apprentices guilty of misbehavior, 549. mandamus to enforce right of father, 555. master and apprentice, generally, 547. right of infant to recover wages, 555. statutes as to consent to be strictly complied with, 555. words expressing consent in contract, 555. Master and servant. See Employers' liability cases, and actions against em- ployees; Work and services. Material allegations. See, also, Pleading, in general; Complaints [or peti- tions] ; Definiteness and certainty in pleading, allegations deemed admitted — allegations deemed controverted, 111. material allegation defined, 110, 129. Mechanics' liens. See Foreclosure of mechanics' liens. Menace, defense of. See Defenses in general, menace defined, 299. .'Wining claims, actions relating to. actions respecting mining claims — customs, usages, etc., 806. complaint based upon an agreement to engage in the business of mining (form), 809. for accounting upon a contract for the sale of mining claims, to declare certain interests therein held in trust for the plaintiff, and for damages (form), 807. for negligently flooding mining claim (form), 806. notice of location annexed to complaint in action to quiet title, 793. Minor children, custody and support of. See, also, Adoption; Guardians of minors and guardians ad litem; Incapacity to contract, defense of. action — against estate of parent for support of child, 532. by third person to recover for necessaries furnished a child, 534. for abuse of parental authority, 531. for exclusive control of children — decree, 530. custody and support — of minor children, generally, 520. of legitimate children, 529. of illegitimate children, 530. of children where husband and wife live separately, 535. decree in proceeding for maintenance (form), 536. liability of parent as affected by abandonment by the child, 535. orders respecting custody, support, etc., of minor children, 520. orders for support of wife and children — orders modifiable, 524. Jury's PI.— 132. 2086 INDEX. [References are to pages. Vol. I, pages 1-1238; Vol. D, nav>- V^^S 1 W < >.] Minor children, custody and support of (continued). reciprocal duties of parents and children in maintaining each other, 532. security for maintenance, etc. — remedies to enforce payment, 527. support of wife's children by former marriage, 535. Minors, delinquencies of. See Juvenile courts. Minors, suits by. See Guardians. Minority. See Incapacity to contract, defense of; Minor children, custo