see Walter v. Lockwood, 23 Barb. 228; S. C. 4 Abb. 307; Ensign v. Sherman, 14 How. 439; Rev'g S. C. id. 35.

"In violation of defendant's agreement." Schenck v. Naylor, 2 Duer, 675.

"Duly authorized." Myers v. Machado, 6 Abb. 198; S. C. 14 How. 149.

Liability. Rex v. Upton-on-Severn, 6 C. & P. 133.

Owner. Adams v. Holley, 12 How. 326. Sole owner. Thomas v. Desmond, id. 321. See, however, Holstein v. Rice, 15 id., contra ; Davis v. Hoppock, 6 Duer, 254; Walter v. Lockwood, 23 Barb. 228; S. C. 4 Abb. 307. "Holder and owner." Brown v. Ryckman, 12 How. 313; Witherspoon v. Van Dolar, 15 id. 266. "Lawful holder." Beach v. Gallup, 2 Code R. 66. See Taylor v. Corbiere, 8 How. 385. "Bona fide holder and owner." White v. Brown, 14 id. 282.

That defendant, as owner, was bound to repair. Corey v. Mann, 5 Abb. 91; S. C. 14 How. 163; 6 Duer, 679.

That goods are the property of a party. Brown v. Ryckman, 12 How. 313.

Indebtedness.-That defendant "is indebted,” or “remains indebted." Chamberlin v. Kaylor, 2 E. D. Smith, 134; Hall v. Southmayd, 15 Barb. 32.

That an indebtedness arose out of the transaction stated in the complaint. Brown v. Buckingham, 11 Abb. 387; S. C. 21 How. 190.

Duty. That it is the duty of a party to do, or to forbear an act. City of Buffalo v. Holloway, 7 N. Y. (3 Seld.), 493; Aff'g S.C. 14 Barb. 101; Rex v. Everett, 8 B. & C. 114.

Settlement.-That a settlement had no reference to the claim in suit, nor was the same in any way released or affected. Jones v. Phonix Bank, 8 N. Y. (4 Seld.) 228.

Obligation.-That "he has failed to fulfill his obligations." Van Schaick v. Winne, 16 Barb. 89.

Repeated acknowledgments. Bloodgood v. Bruen, 8 N. Y. (4 Seld.), 366; Rev'g S. C. 4

Sandf. 427.

Conveyance.-That "by his agreement, he did not undertake to convey the land free from all incumbrances." Warner v. Hatfield, 4 Blackf. 394.

That the acts of the defendant are contrary to statute. Smith v. Lockwood, 13 Barb. 209; S. C. 10 N. Y. Leg. Obs. 232.

Note. That a note never had any validity. Burrall v. Bowen, 21 How. 378.

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As such attorney." Ex parte, Webb, 1 New Pr. Cas. 213.

That "he is nearer of kin than another." Public Administrator v. Watts, 1 Paige, 348; S. C. Rev'd, 4 Wend. 468.

That "the refusal was unjust." Matter of Prime, 1 Barb. 340, (352).

Sum due. That a certain sum is "due." McKyring v. Bull, 16 N. Y. (2 Smith), 297. The term "due " is sometimes used to express a mere state of indebtedness, at others, the fact that the debt has become payable. Allen v. Patterson, 7 N. Y. (3 Seld.), 480.

That "the said sum is due and owing to the plaintiff." Keteltas v. Myers, 3 E. D. Smith, 83; S. C. 1 Abb. 403; S. C. Rev'd, 19 N. Y. (5 Smith), 231.

Adverse possession. Munro v. Mer chant, 28 N. Y. (1 Tiff.), 19; S. C. 25 How. 593, (n.); Rev'g S. C. 26 Barb. 385. Where Bralie, 3 Duer, 35. there is no dispute as to the facts. Bowie v.

Assent.-To a sheriff's neglect of duty. Moore v. Westervelt, 27 N. Y. (13 Smith). 234; S. C. 25 How. 277; Aff'g S. C. 9 Bosw. 558; S. C. before, 21 N. Y. (7 Smith), 103; Rev'g S. C. 1 Bosw. 357. See S. C. 2 Puer, 59. Of partner. Kemeys v. Richards, 11 Barb 312.

Carrier. Whether a carrier is bound to know the contents of packages. Berley v. New. ton, 10 How. 490.

What is the meaning of a contract? Latham v. Westervelt, 26 Barb. 256 Where there is a dispute as to its terms, see Chapin v. Potter, 1 Hilt. 366.

Trust. That certain alleged facts, occur ring in a foreign State, constitute a valid and subsisting trust by the laws of that State. Throop v. Hatch, 3 Abb. 23.

How averred.-An averment of a conclusion of law is often preceded by the word therefore, or whereby, or thereby, but either of these words do not necessarily make what follows the less an allegation of fact. Pryce v. Belcher, 3 C. B. 91; 15 Law Jour. R. 305, C. P. For the effect of " whereby," see id. Of "thereby," see Brown v. Mallett, C. B. 599, (614); and of "therefore," see Borrowe v. Milbank, 5 Abb. 28; S. C. 6 Duer, 680.

The facts must be averred, not evi- | dence. See Cahill v. Palmer, 17 Abb. 196. | An averment, from which, if submitted to a jury, they might infer a cause of action or defense, is not sufficient. It must state such facts, as that the law, without the aid of a jury, will draw the conclusion of a cause of action or defense. Page v. Boyd, 11 How. 415. Thus, where the complaint alleged that plaintiff had expended, at the request of de

fendant, in the purchase of merchandise, $9,075; that defendant had since paid $7,500 on account, it was said that the proof that defendant paid $7,500 of the plaintiff's claim, when stated in the pleadings is not equivalent to an allegation that defendant was so liable. id. So an averment that a vessel foundered at sea, without any collision, or any storm, or any visible cause, is not equivalent to an averment that the vessel was unseaworthy

when she commenced her voyage. id. And in an action for a breach of promise of marriage, where the complaint did not directly allege a promise, but alleged that in a conversation between the parties the plaintiff asserted, among other things, that he, defendant, had promised to marry her, and that defendant acknowledged that he had done wrong in promising her as he did, and hoped she would forgive him, but that if he should marry her as they had talked, and she go to his home, it would make both miserable for life. Held, on demurrer, that the complaint did not show any promise by defendant. Buzzard v. Knapp, 12 How. 504.

An allegation of duty, is of no avail, unless from the rest of the complaint the facts necessary to raise the duty can be collected. City of Buffalo v. Holloway, 7 N. Y. (3 Seld.), 498; Aff'g S. C. 14 Barb. 101. See note to § 160. An averment, that by a certain judgment recovered in the courts of this or any other State, or by reason of a certain bond executed by defendant, he was indebted to the plaintiff in a given sum, or owed any other duty, does not contain any facts of which the court can take notice. Throop v. Hatch, 3 Abb. 23. As to allegations of broker's duty, see Boorman v. Brown, 3 Ad. & E. N. S. 511.

sary to its regularity, that it was an adjourned meeting. People ex rel. Hawes v. Walker, 23 Barb. 304; S. C. 2 Abb. 421. An averment that the trustees had been duly appointed, carries with it the inference that everything has been done to constitute them trustees de jure until the contrary appears. Cruger v. Halliday, 11 Paige, 314; Rev'g S. C. 3 Edw. Ch. 565. So, that an election was duly and legally held pursuant to statute, was held a sufficient statement of the time when the election took place, and that it was on the day prescribed by law. People ex rel. Crane v. Ryder, 12 N. Y. (2 Kern.), 433; Rev'g S. C. 16 Barb. 371. That a policy of insurance was duly assigned, indicates that the assignment was by a sealed instrument, and a consideration will be inferred. Fowler v. New York Indemnity Insurance Co. 23 Barb. 143; S. C. Rev'd, on other grounds, 26 N. Y. (12 Smith), 422. See Morange v. Mudge, 6 Abb. 243. That the plaintiff was duly authorized to bring the action is not an allegation of fact. Myers v. Machado, 6 Abb. 198; S. C. 14 How. 149. If duly has any clear legal signification, the question whether an act is duly done, is one of law, and must be determined from the facts. Graham v. Machado, 6 Duer, 514. That a bill was "duly protested at maturity" is sufficient to admit evidence of demand, neg

or refusal to pay, and notice of non-payment. Woodbury v. Sackrider, 2 Abb. 402. If the allegation that "a guardian duly appointed for the purpose of this action," is too general, the proper course is, by motion, to make it more definite, not by demurrer. Serė v. Coit, 5 Abb. 481. That " plaintiff was duly appointed chamberlain" was held sufficient on demurrer. Platt v. Stout, 14 Abb. 178. A finding in the report of a referee, that a corporation duly accepted" a bill, is to be construed as importing that their officer, who signed the acceptance, had authority so to do. Farmers' and Mechanics' Bank v. Empire Stone Dressing Co. 10 Abb. 47; S. C. 5 Bosw. 275. That an execution was duly issued," is sufficient. French v. Willet, 10 Abb. 102; S. C. 4 Bosw. 649; again, 10 id. 566.

Essential allegations.-The office of pleadings is, to present the cause of action on one side, and the defense on the other. Buddington v. Davis, 6 How. 401. It must appear on the face of the complaint that the debt was due when the action was commenced. Maynard v. Talcott, 11 Barb. 569; Hare v. Van Deusen, 32 id. 92; Smith v. Holmes, 19 N. Y. (5 Smith), 271; McCullough v. Colby, 4 Bosw. 603; Wattson v. Thibou, 17 Abb. 184. Every fact which the plaintiff must prove to maintain his suit, and which the defendant has a right to controvert in his answer, must be distinctly stated. Allen v. Patterson, 7 N. Y. (3 Seld.), 478; Bailey v. Ryder, 10 N. Y. (6 Seld.), 363; Safford v. Drew, 3

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Duer, 627; S. C. 12 N. Y. Leg. Obs. 150, McMillan v. Saratoga & Washington R. R. Co. 20 Barb. 449; Bristol v. Rensselaer & Saratoga R. R. Co. 9 id 158. Whatever is unnecessary to be proved on the trial, need not be alleged in the complaint. Decker v. Mathews, 12 N. Y. (2 Kern.), 320; Aff'g S. C. 5 Sandf. 439; Bank of United States v. Smith, 11 Wheat. 171. It need not affirmatively appear on the face of the complaint that the court has jurisdiction of the person of the defendant or of the subject-matter of the action. Kanig v. Nott, 8 Abb. 384; S. C. 2 Hilt. 323. Facts which, independent of the cause of action, entitle the plaintiff to an order of arrest, or an injunction until the

In actions in local courts of general jurisdiction (e. g., the New York superior court), the complaint need not allege facts showing the jurisdiction of the court over the person. Spencer v. Rogers Locomotive Works, 17 Abb. 110; S. C. 8 Bosw. 612.

Not necessary to allege facts necessarily implied. Thus, in an action of debt on a bond, conditioned for the performance of the award of E., where the defendant answered that E. made no award, and plaintiff replied that defendant revoked the authority of E.; this replication was held to be sufficient, without averring notice of the revocation of E.'s authority, because the words "revoked the authority," implied such notice. Steph. Pl. 354; Marsh v. Bulteel, 5 Barn. & Ald. 507; Frets v. Frets, 1 Cow. 335;. Allen v. Watson, 16 Johns. 205. So, if a feoffment is pleaded, it is not necessary to allege livery of seisin; so, if one alleges that he is heir to A., he need not allege that A. is dead. id., for nemo est haeres viventis. Broom's Legal Maxims, 393. But the term heir, is not always used in law as denoting a person whose ancestor is dead; often to denote the heir apparent. Lockwood v. Jesup, 9 Conn. R. 272; Cox v. Beltyhoover, 11 Mo. R. 142. A general averment, that a bill was accepted, implies that the acceptance was in writing. Bank of Lowville v. Edwards, 11 How. 216. In an action by one surety against another, it is unnecessary to aver what portion the defendant is to pay. Van Demark v. Van Demark, 13 How, 372. Where the facts stated imply a promise, a promise need not be alleged. Cropsey v. Sweeney, 27 Barb. 310; Hall v. Southmayd, 15 id. 32; Farron v. Sherwood, 17 N. Y. (3 Smith), 227; Berry v. Fernandez, 1 Bing. 338; Durnferd v. Messiter, 5 Man. & S. 446. In an action upon a promissory note, an averment "that the note was made to the plaintiff," is a sufficient averment of ownership, without averring a delivery. Keteltas v. Myers, 19 N. Y. (5 Smith), 231; Rev'g S. C. 1 Abb. 403; 3 E. D. Smith, 83.

The complaint should not anticipate the defense. Van Nest v. Talmage, 17 Abb. 99; but it may do so in certain cases, as where a statement of all the material facts, out of which the cause of action arises, includes those facts which might be otherwise set up as a prima facie good defense. See

son v. Minford, 11 id. 273; Van Nest v. Talmage, supra; Wade v. Rusher, 4 Bosw. 537. The statute of 32, Henry VIII., ch. 1, provided that wills made by femmes covert or infants, were of no effect; yet in pleading a devise, it was not necessary to allege that the devisor was not a feme covert or an infant. Stowell v. Zouch, Plow. 353, (376). In an action on a bond, it is unnecessary to aver that the defendant was of full age when he executed it. Walsingham's Case, Plow. 547; Bovy's Case, 1 Vent. 217. Where a covenant in a charter party provided that no claim should be admitted or allowance made for short tonnage, unless made to appear by a survey, in an action on such covenant for short tonnage, held, that non-performance of the covenant was matter of defense, and that performance thereof need not be averred in the complaint. Hotham v. East India Co. 1 T. R. 638. The complaint, in an action, for a claim which accrued more than six years prior to the commencement thereof, should not anticipate a defense of the statute of limitations, by stating the facts which prevent the application of the statute. Butler v. Mason, 5 Abb. 40; S. C. 16 How. 546; Sands v. St. John, 23 id. 140; S. C. 36 Barb. 628; S. C. Aff'd, 29 How. 574, (n). A complaint upon an ordinary promissory note need not aver a cotemporaneous agreement in writing, varying the terms of the note; such agreement is matter of defense only. Smalley v. Bristol, 1 Manning, Mich. R. 153. A complaint upon a quantum meruit, for services actually rendered, but not rendered in conformity to an existing contract therefor, need not aver an excuse for not performing the contract. It is matter of reply to a defense. Wolfe v. Howes, 20 N. Y. (6 Smith), 197; Aff'g S. C. 24 Barb. 666; id. 174. A complaint on a promise to pay the debt of another, need not aver the promise to be in writing; and so, in an action to charge heirs with the debts of their ancestor, it is unnecessary to allege assets. Elting v. Vanderlyn, 4 Johns. 237. To recover for damages for an injury to person or property, it is unnecessary to allege that the plaintiff was without fault. Wolfe v. Supervisors of Richmond, 11 Abb. 270; S. C. 19 How. 370. The same rule applies to actions against a city or county for damages done by a mob, (id). A complaint which shows indebtedness, need not allege non-payment; that is a matter of defense. Keteltas v. Myers, 19 N. Y. (5 Smith), 231; Rev'g S. C. 1 Abb. 463; 3 E. D. Smith, 83; Holsman v. De Gray, 6 Abb. 79. And so a complaint by one surety against another for contribution, need not negative any repayment to plaintiff. Van Demark v. Van Demark, 13 How. 372.

Where a statute declares that a deed or contract is void, if. or provided it is made in a particular manner or upon a specified consideration (e. g., upon usury), it is not necessary. for the plaintiff to negative the condition; he may leave it to the defendant to set up the facts which bring it within the condition upon