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defendant might plead as a set-off or counterclaim a cause of action at common law against the plaintiff, and obtain a favorable judgment for such excess as he could prove. In an action by the United States the defendant could not recover an affirmative judgment against the government on a counterclaim, although it may be determined that there is a balance due him.5

An allegation of citizenship or residence of either party contained in a plea of set-off may be taken as an admission.

A plea of set-off which is defective in form, or which lacks an affidavit & may be cured by an amendment.

$ 454i. Pleadings in negligence cases. In action to recover damages for negligence when the plaintiff does not rely upon a Federal statute the State pleadings should follow the State practice 1 except as regards the allegations which show the Federal jurisdiction. When an act by the defendant, injurious to the plaintiff is set forth, a general allegation of negligence is sufficient; 8 but when the negligence is specified the plaintiff cannot without amending his pleading recover upon any other ground ' even it has been held under the presumption of res ipsa loquitor.5

It has been held: that the defense of contributory negligence must be pleaded if the State statute requires this; 6 that, where there is a mere general averment upon the subject, a motion to make the same more specific or definite and certain will be

4 Partridge v. Felix, Mut. L. I. Co., 15 Wall. 573, 21 L. ed. 229; Dushane v. Benedict, 120 U. S. 630, 30 L. ed. 810; Charnley v. Sibley, C. C. A., 73 Fed. 980; Arkwright Mills v. Aultman & Taylor Machinery Co., 128 Fed. 195; Allegheny Valley Brick Co. v. C. W. Raymond Co., 219 Fed. 477. Contra, Jewett Car Co. v. Kirkpatrick, 107 Fed. 622.

5 U. S. v. Gillies, 144 Fed. 991.

6 Kawin & Co. v. American Colortype Co., C. C. A., 243 Fed. 317.

7 Bedford v. J. Henry Miller, C. C. A., 212 Fed. 368.

8 Ibid.

$ 454i. 1 Gadonnex V. New Orleans Ry. Co., 128 Fed. 805; Hardy v. Chicago St. P. M. & 0. Ry. Co., 172 Fed. 454; Patterson v. Jacksonville Traction Co., C. C. A., 213 Fed. 289.

2 Supra, $ 454d.

3 Tatum v. Louisville & N. R. Co., C. C. A., 253 Fed. 888.

4 White v. Chicago G. W. R. Co., C. C. A., 246 Fed. 427.

6 Ibid.

6 Gadonnex v. New Orleans Ry. Co., 128 Fed. 805, 806; Hardy v. Chicago, St. P., M. & 0. Ry. Co., 172 Fed. 454.

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granted, when the State practice permits such motions as to any matter of special defense;? but that where the common law prevails, such a defense may be proved under the plea of the general issue.8

When the acts or omissions constituting the contributory negligence are specified by the defendant he cannot defeat the plaintiff because of any other carelessness. 9

$ 454j. Pleading in actions under Federal Employers' Liability Act. A suit arises under the Federal Employers' Liability Act 1 where the complaint alleges and the proof establishes that the employee was engaged in interstate commerce when the injury occurred and that the occurrence was in the course thereof.? A concession that the parties were engaged in interstate commerce at the time of the injury cannot give the court jurisdiction where the evidence shows the contrary. In such a case, the allegations concerning interstate commerce should be stricken out. In an action for the death of an employee of a railway company who was struck by an engine an allegation that the employer was engaged in interstate commerce at the time of the action does not sufficiently show that the engine was then so engaged.5

The complaint may be so drawn as to permit the plaintiff to recover under either the Federal or the State Liability Acts or under the common law as supplemented by other statutes of the State, whichever the evidence may permit. A complaint or declaration which refers to a State statute may by amendment bring the case within the Federal Employers' Liability Act when the allegations of negligence are the same.? A previous action

7 Gadonnex v. New Orleans Ry. Co., 128 Fed. 805.

8 Canadian Pac. Ry. Co. v. Clark, C. C. A., 73 Fed. 76, 81; C. C. A., 74 Fed. 362.

9 American Car & Foundry Co. v. Uss., 211 Fed. 862.

$ 454j. 1 Act of April 22, 1908, ch. 149, 35 St. at L. 65, Comp. St. 88 8657-8665; Central Vermont Ry. Co. v. White, 238 U. S. 577.

2 Grand Trunk Western Ry. Co. v. Lindsay, 233 U. S. 42.

3 Delaware, L. & W. R. Co. v. Yurkonis, 220 Fed. 429.

4 Delaware, L. & W. R. Co. v. Yurkonis, 220 Fed. 429.

5 Illinois Central R. Co. v. Rogers, C. C. A., 221 Fed. 52.

6 Delaware, L. & W. R. Co. v. Yurkonis, 220 Fed. 429.

7 Mo. K. & T. Ry. Co. v. Wulf, 260 U. S. 570; Seaboard Airline Ry. v. Koennecke, 239 U. S. 352; Seaboard Airline Ry. v. Renn, 241 U. S. 290; Smith v. Atlantic Coast

at common law or under a State statute for the same injury does not constitute an election of remedies which will bar a subsequent suit under the Federal statute provided at least that the former suit was previously discontinued. 8

Where the complaint or declaration sets forth two causes of action for the injury one under a State law, and the other under the Employers' Liability Act, and shows that at the time of the injury plaintiff and defendant were engaged in interstate commerce, the Federal law controls both the liability and the right of recovery."

$ 454k. Pleadings in actions at common law under Interstate Commerce Acts. A declaration or petition to recover damages awarded by the Interstate Commerce Commission as reparation for excessive or discriminating rates must show that such rates were wrongful in one of these respects. An averment that the Commission has so found is insufficient, but where such a declaration did not in terms allege the particular rates upon which the commission passed, but set out the citations of the cases where the determination was reported for the purpose of incorporating the pertinent facts of such decisions into the pleading by reference, it was held that the court was authorized to examine the facts set out in such decisions when deciding a demurrer. An allegation that the charges were unjust, unreasonable, and in violation of law is sufficiently specific to resist a general demurrer. In an action by a carrier for the difference between the amount paid for freight and the legal rate as fixed by its schedules and tariffs filed with the Interstate Commerce Commission, the plaintiff's pleading is not insufficient when it omits to set forth in full the schedules and tariffs and the cer

Line R. Co., C. C. A., 210 Fed. 761;
O'Dell v. Southern Ry. Co., 248
Fed. 343, 345. See Lucchetti v.
Phila. & R. Ry. Co., 233 Fed. 137,
supra, $ 210b.

8 Hogan V. New York Cent. & H. R. R. Co., C. C. A., 223 Fed. 890.

9 Peek v, Boston & M. R. R., 223 Fed. 448.

$ 454k. 1 Baer Bros. Mercantile

Co. v. Denver & R. G. R. Co., 200
Fed. 614. See supra, 88 32a, 77b.

2 Ibid.

3 A. J. Phillips Co. v. Grand Trunk Western Ry. Co., C. C. A., 195 Fed. 12. See Jacoby v. Pennsylvania R. Co., 200 Fed. 989.

4 Denver & R. G. R. Co. v. Baer Bros. Mercantile Co., C. C. A., 209 Fed. 577.

tificates of concurrence in the rates published by another railroad upon which it relies, 5

In an action against a common carrier for loss or damage in transit to goods shipped in interstate commerce under the Carmack Amendment 6 to the Interstate Commerce Act, it will be presumed that the defendant issued a bill of lading in accordance with the statute, although the complaint is silent in that respect.?

§ 4541. Pleading in actions at common law under anti-trust statutes. The better opinion is that a count is not bad for duplicity in an action under the Federal Anti-Trust Act of July 2, 1890, when it alleges that the defendant has entered into a contract, combination and conspiracy in restraint of trade. In

5 McFadden v. Alabama Great Southern R. Co., C. C. A., 241 Fed. 562.

6 Act of January 24, 1914, 38 St. at L. 278.

7 Southern Pacific Co. v. Stewart, 245 U. S. 359.

$ 4541. 126 St. at L. 209, ch. 647, $81, 2, Comp. St. $$ 88208830.

2 Buckeye Powder Co. v. È. I. Du Pont de Nemours Powder Co., 196 Fed. 514; Cilley v. United Shoe Machinery Co., D. Mass., 202 Fed. 598; Strought v. United Shoe Machinery Co., D. Mass., 202 Fed. 602; citing: Swift v. U. S., 196 U. S. 375, 396, 25 Sup. Ct. 276, 279, 49 L. ed. 518; U. S. v. Am. Tobacco Co., 221 U. S. 106, 184, 31 Sup. Ct. 632, 650, 55 L. ed. 663. Contra, Rice v. Standard Oil Co., D. N. J., 134 Fed. 464. A declaration was held to be sufficient, which alleged in detail: the establishment of the shoe machinery business of the plaintiff at Boston in 1893, his engaging thereafter in interstate commerce, his building up of the business, his procuring of patents and the construction of shoe

machines thereunder, the expenditure of nearly $100,000 to develop the business, the profits of the business immediately prior to the alleged wrongful acts of the defendant and the entire loss of profits thereafter, a list of the customers with whom he had done business and persons with whom he was negotiating for further business, the trade conditions prior to the organization of the defendant company, the illegal combination and conspiracy of its pro-concerns, its utilization of leases and licenses as an instrumentality to create an illegal monopoly and combination (the general forms of leases and licenses being set forth verbatim in an exhibit), the effect of these leases and licenses in excluding the plaintiff from the mar. ket, the attempt through the leases and licenses to oxtend the scope and operation of the defendant company's patents, the superior merit and efficiency of the plaintiffs' line of shoe machinery, the threats of the officers of the defendant company to the plaintiff made in pursuance of its scheme to monopolize, the de. struction of the established business

the Southern District of New York, where the complaint set

1

and interstate commerce of the plaintiff, the diversion of his customers, the destruction of the value of his patent interests, and other injuries to his business and prop. erty.” And further: “13. Accordingly, the plaintiff says that the defendant is and has been since its organization an illegal combination in restraint of trade and a monopoly existing wrongfully and in violation of the act of Congress of July 2, 1890, chapter 647, commonly known as the Sherman Act; that each and every one of the leases, copies of which are hereto annexed, is a contract in restraint of trade and commerce among the several states and with foreign nations, in that the effect has been to prevent practi. cally all of the shoe manufacturers in the United States from purchasing, leasing, or otherwise acquiring or obtaining in any of the states of the United States or in any foreign market or elsewhere, except from the defendant shoe machinery and mechanisms; that said group system of leases which the defendant has required and secured to be signed by nearly all the shoe manufacturers in the United States have created and now maintain a spiracy and combination in straint of trade and among the several states and with foreign nations, to which the de. fendant and all its acquired concerns and companies are parties, whereby the defendant has monopolized and now monopolizes substantially the entire trade and

in shoe machinery and mechanisms among

the several states and with foreign nations and

suppresses all competition therein, and has entirely excluded the plaintiff from participation in such trade and commerce; that said leases are essential parts of an illegal scheme, combination, and conspiracy in restraint of trade and commerce, and have been utilized by the defendant as an important instrumentality in creating and supporting its illegal monopoly in the business of dealing in and with shoe machinery and mechanisms.

“14. That through and by reason of the said conspiracy and monopoly acquired by the defendant company of practically the entire business of manufacturing shoe machinery throughout the United States the plaintiff has been prevented from selling the shoe machinery manufactured by him, including machines covered by said patents relating thereto enumerated in paragraph 1 to the manufacturers included in Exhibit A and to the other shoe manufacturers in the various states of the United States, and by means of each and all acts done by the defendant in pursuance of said monopoly the de. fendant has utterly destroyed the interstate trade and commerce of the plaintiff with said shoe manu. facturers by the loss of many or. ders and customers directly resulting therefrom, the interests of the plaintiff in the aforesaid patents enumerated in paragraph i have been rendered valueless, and the plaintiff has otherwise been greatly injured in his business and property by reason of said monopoly and the acts of the defendant done in pursuance thereof, and to carry the

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