mile for each passenger; but that it was enough to allege that the defendants had been duly organized, that they were entitled to demand and receive of passengers a certain rate of fare, and that they had demanded and received a higher rate: Nellis v. N. Y. Cent. R. R. Co., 30 N. Y. 505.

32.

Remedy.-Where a remedy is given by statute, and does not exist at common law, the declaration must be special upon the statute: Smith v. Woodman, 28 N. H. 520; Thorpe v. Rankin, 19 N. J. L. 36.

33. Several Penalties.--For several penalties incurred in one act, plaintiffs may declare generally in one count: People v. McFadden, 13 Wend. 396. Only one penalty can be enforced for the same act: Driskill v. Parrish, 3 McLean, 631. Under an ordinance forbidding both the sale of a thing and its exposure to sale, a single act of selling cannot be separated so as to impose therefor two penalties. In case of an actual sale, the exposure to sale is merged in the sale: City of Brooklyn v. Toynbee, 31 Barb. 282.

34. Statutes.-A public statute need not be recited or referred to in pleading, and all that seems material is that enough be stated to bring the case within the statute: McHarg v. Eastman, 7 Robt. 137; S. C. 35 How. Pr. 205; Bretz v. Mayor, 35 Id. 130; S. C. 4 Abb. Pr. (N. S.) 258; reversing 3 Abb. Pr. (N. S.) 478.

35. Statutes, how Proved.—As to whether an act is passed by the requisite vote, the printed statutes are presumptively correct, and the original on file conclusive: People ex rel. v. Com. of Highways, 54 N. Y. 276; People v. Devlin, 33 N. Y. 269.

36. Telegraph Messages. Where the telegraph company fails to transmit a message, upon compliance by the person contracting with it with the conditions required by law, an action lies for the penalty: Thurn v. Alta Tel. Co., 15 Cal. 472. And the party who contracts is entitled to the penalty: Id.

37. Theatrical Exhibitions.-A complaint which charges that the defendant " I did willfully and unlawfully, on the first day of the week, commonly called Sunday, to wit, on the Sabbath day, get up, and in getting up and opening of a theater," contains a sufficient statement of the facts constituting the offense of getting up a theater on the Sabbath day: People v. Maguire, 26 Cal. 635; for complaint, see People v. Koll, 3 Keyes, 236.

38. Venue.-Actions for the recovery of a penalty or forfeiture imposed by statute, shall be tried in the county where the cause, or some part thereof, arose, subject to the power of the court to change the place of trial: Cal. Code C. P., sec. 393.

39. Within the Statute.-Such a declaration must bring the offense charged within the statute clearly; whether looking to its language or spirit: Jones v. Van Zandt, 5 How. U. S. 215; affirming S. C. 2 McLean, 611.

[TITLE]

No. 136.

ii. For Selling Liquor without a License.

The plaintiff complains, and alleges:

I. That on the....day of........, 187., at..... ., the defendant sold to one A. B. [or to divers persons] strong liquors [or spirituous liquors, or wines], in quantities less

than by the bottle [or otherwise, according to the terms of the ordinance or statute].

II. That the defendant had not then a license to sell liquors, as required by the act entitled "An Act, etc. [giving title of act in full], passed on the....day of......

18..

III. That thereby the defendant became, and is indebted to the plaintiff in the sum and penalty of... . . . . . dollars, for said act of selling [or, each and every of said acts of selling], whereby this action has accrued to the plaintiff, according to the provisions of said act, for the said sum of

....dollars [or if more than one penalty is claimed, for the aggregate amount or sum of........ dollars].

[Demand of Judgment.]

40. Form. For another form, see People v. Bennett, 5 Abb. Pr. 381. To follow the words of the act is sufficient: See Cole v. Jessup, 10 N. Y. 96; 10 How. Pr. 515.

No. 137.

iii. Against a Witness, for Disobeying Subpena. [TITLE.]

187., at.... .., the

.........

I. That on the ...day of....... plaintiff caused the defendant to be duly served with a subpena commanding him to attend as a witness in..... Court, in and for the County of. . . . . . . ., in this State, on the....day of ......., 187., there to give testimony on behalf of the plaintiff in an action in said Court pending, wherein this plaintiff was the plaintiff, and one C. D. was defendant [or otherwise designate the proceedings].

II. That at the same time the plaintiff caused.......dollars, the lawful fees of the said witness, to be paid [or tendered] to him.

III. That the defendant failed to attend as commanded, whereby the defendant became indebted to the plaintiff in the amount of........ dollars, according to the provisions of the statute [describe the statute].

IV. That by reason of the premises, the defendant forfeited to the plaintiff the sum of.... ... dollars.

[If special damages are claimed add:] V. And for a second cause of action, the plaintiff alleges that because of the said failure of the said defendant to attend said trial as such witness as aforesaid, the plaintiff, when said action

was called for trial, was compelled, for want of the testimony of said defendant, without whose testimony he could not safely proceed to the trial of said action, to move the said Court to continue the said action; and the said Court did continue the same, and the plaintiff was compelled to pay on said continuance, as costs thereof, ..... ....dollars, which sum he was so compelled to pay by reason of the said failure of the said defendant to attend as such witness as aforesaid, to the damage of the plaintiff in the said sum of........ dollars.

[Demand of Judgment.]

41. Witness Refusing to Answer.-An action lies at common law against a witness refusing to answer or attend under a subpena: Dougl. Rep. 561; Peake, 60; Warner v. Lucas, 10 Ohio, 336. The complaint must aver that the witness fees were paid or tendered to him: McKeon v. Lane, 1 Hall, 319. It would seem that a general allegation that he was legally subpenaed is insufficient: Id.

No. 138.

iv. For Violation of Ordinance of Board of Supervisors. [TITLE.]

The plaintiff complains, and alleges:

187.,

the

.., in pur

I. That on or about the ...... day of Board of Supervisors of the County of suance of the power in them vested by law, passed a law entitled "An order, regulation, or ordinance," etc. [giving title of the same], a copy of which is annexed as a part of this complaint.

II. That since the passing thereof, to wit, on the .... day of..., 187., the defendant [here state fully wherein the defendant had disobeyed the order], contrary to the provisions of the said ordinance above mentioned.

III. That by reason of the premises, the defendant forfeited to the plaintiff the sum of ...... dollars.

[Demand of Judgment.]

42. Authority to Enact.-The authority to enact may be averred in general terms: Stuyvesant v. Mayor of N. Y., 7 Cow. 603.

43. Form. This is substantially the form of the complaint in Smith v. Levinus, 8 N. Y. 472.

44. Indiana.—In Indiana, a copy of the by-law or ordinance should be made a part of the complaint: Green v. Indianapolis, 22 Ind. 192.

45. Ordinance Averred. In general, the by-laws of all corporate bodies, including municipal corporations, must be set forth in pleading, when they are sought to be enforced by an action, or set up as a protection: Wile, on Mun. Corp. pt. 1, sec. 430; Iarker v. Mayor, etc., of N. Y., 17 Wend. 199; People v. Mayor, etc., of N. Y., 7 How. Pr. 81.

A. B., to and for the use of the plaintiff.
II. That thereafter, on the ..... day of

187.

[or before the commencement of this action], the plaintiff demanded payment thereof from the defendant.

III. That the defendant has not paid the same, nor any part thereof [except, etc.].

[Demand of Judgment.]

NOTE. In those cases where demand is not necessary, the second paragraph may be omitted. Where a demand is necessary to charge the defendant with interest, the date of the demand should be inserted.

1. Defendants, how Charged.-Where the complaint charges that A., being indebted to the plaintiff in a sum of money, it was agreed between the plaintiff and defendant that A. should pay the same to plaintiff at the request of plaintiff, and thereafter A. paid to defendant said sum in gold coin of the United States and for the use and benefit of plaintiff, that defendant refused to pay the same to the plaintiff upon request duly made, an action to recover said sum in gold coin is an action for money had and received, and defendant is not charged as a bailee: Wendt v. Ross, 33 Cal. 650.

2. Demand. It is not necessary that the plaintiff, in an action for money received by defendant for his use, should make a demand before suit, where it was the duty of the defendant to have remitted the money: Stacy v. Graham, 14 N. Y. 492; Howard v. France, 43 N. Y. 593. No demand is necessary before action brought to recover back an illegal tax: Newman v. Supervisors of Livingston Co., 45 N. Y. 676. So of moneys collected by sheriff: Nelson v. Kerr, 59 N. Y. 224.

3. "For Plaintiff's Use."-The common allegation that the defendant received money "for the use of the plaintiff," is open to objection on the ground of its indefiniteness. In Lienan v. Lincoln, 2 Duer, 670, it was held bad on demurrer. A complaint which avers 'that the defendant received a sum of.... dollars, belonging to or on account of the plaintiff, and which is now due him," states facts sufficient to constitute a cause of action: Betts v. Bache, 14 Abb. Pr. 279.

4. Involuntary Payments.-The influence exerted by the provisions of the statutes of the United States, requiring stamps to be placed on passage

tickets by steamer from San Francisco to New York, does not constitute the kind of coercion or compulsion which the law recognizes as sufficient to render the payment therefor involuntary: Garrison v. Tillinghast, 18 Cal. 404. Generally, to constitute compulsion or coercion, so as to render a payment involuntary, there must be some actual or threatened exercise of power, possessed or supposed to be possessed by the party exacting or receiving the money: Brumagim v. Tillinghast, 18 Cal. 265. The object of the protest is to take from the payment its voluntary character, and conserve to the party the right to recover it back: Id.

5. Money Extorted by Duress.-A complaint in an action to recover money wrongfully obtained, under color of judicial proceedings, must contain such averments as will exclude the idea that the money could have been lawfully obtained: Funkhouser v. How, 17 Mo. 225; Chandler v. Sanger, 114 Mass. 364. The complaint must state that it was wrongfully obtained. And not state a mere conclusion of law, but the facts should be fully detailed, so that the Court may see from the facts that the payment was compulsory: Commercial Bank v. Rochester, 41 Barb. 341. It is not sufficient to allege compulsion in a general way. Money extorted by duress of goods may be recovered: 2 Strange, 915; 3 Johns. Cas. 238; 4 T. R. 485; Id. 561; 7 Greenlf. 134; 4 Harr. & J. 54; 3 N. H. 508; Tutt v. Ide, 3 Blatchf. 249; McMillan v. Richards, 9 Cal. 365.

6. Money not Credited.-Where money was not credited on an account upon which judgment by default was rendered, it may be recovered back: 16 Mass. 306; 6 Id. 14; 17 Id. 394; 4 Pick. 228; 11 Johns. 441; 8 Id. 470; Phil. on Ev.; Cow. & H. 832; contra, 1 N. H. 33; 11 Ala. 695; Binck v. Wood, 43 Barb. 315.

7. Money Paid Under Protest. The fact that a party pays money under protest does not change the character of the transaction, or enable him to recover it back, unless the payment was under duress or coercion, or where undue advantage was taken of his situation: Brumagim v. Tillinghast, 18 Cal. 265; Kansas & Pac. R. R. Co. v. Wyandotte Co., 16 Kan. 587.

8. Nature of the Action.-There need be no privity of contract between the parties, in order to support this action, except that which results from one man's having another's money, which he has not a right conscientiously to retain: Mason v. Waite, 17 Mass. 563; Bue! v. Boughton, 2 Den. 91; Lockwood v. Kelsea, 41 N. H. 185.

9. Promise Implied. -When a person recovers the money of another, and applies it to his own use, the law implies a promise to repay it: Durnond v. Carpenter, 3 Johns. 183. Where one receives at the request of another a sum for a third person, with directions to pay the same over, it is equivalent to an express promise to pay the same, and the latter may maintain an action for money had and received: 12 Johns. 276; 2 Hilt. 1; 4 Den. 97. But see Seaman v. Whitney, 24 Wend. 260; Turk v. Ridge, 41 N. Y. 201; and 14 East. 590, where distinctions are taken. And no consideration need be shown: 17 How. Pr. 289; Berry v. Mayhew, 1 Daly, 54. Where one receives the money of another, and has not the right conscientiously to retain it, a privity between the true owner and the receiver will be implied, as well as a promise to repay it: Caussidiere v. Beers, 2 Keyes, 198.

10. Promise need not be Alleged.-The implied promise to pay is a fiction which need not be alleged: Byxbie v. Wood, 24 N. Y. 607.