Rep., 860.

Erie Tel., etc., Co. v. Grimes, 82 Tex., 89; s. c. 17 S. W. Rep., 831. (Allegations sufficient to show that defendant's neglect in delivering the message caused the damages claimed ;) S. P., Western Union Tel. Co. v. Lyman, 3 Tex. Civ. App., 460; s. c. 22 S. W. Rep., 656; Mitchell v. Western Union Tel. Co., 5 Tex. Civ. App., 527; s. c. 24 S. W. Rep., 550.

COMPLAINTS

IN ACTIONS AGAINST COMMON CARRIERS FOR LOSS OR INJURY TO GOODS INTRUSTED TO THEM FOR TRANSPORTA

TION.

[Principal Case, p. 119, this Vol.]

Alabama.-Louisville, etc., R. Co. v. Gerson, 14 So. Rep., 873. (Complaint should aver that defendant is a common carrier, in an action to recover for damages for a failure to deliver safely the goods transported.) Georgia.—Boaz v. Central R., etc., Co., 87 Ga., 463; s. c. 13 S. E. Rep., 711. (Where goods are shipped under a special contract varying the common law liability of the carrier, an action for loss or injury to the goods is properly brought on it, and not on the carrier's general liability.) Indiana.-Pennsylvania Co. v. Clark, 2 Ind. App., 146. (In Indiana by statute all railroad corporations are common carriers, and an allegation that defendant is such a corporation is equivalent to an allega tion that it is a common carrier.) Louisville, etc., R. Co. v. Widman, 9 Ind. App., 190; s. c. 37 N. E. Rep., 554. (In an action on a bill of lading, which provided that the carrier should not be liable for loss or damage unless notified thereof within thirty days, complaint held bad on demurrer for not alleging the giving of such notice or the performance of conditions precedent.) Evansville, etc., R. Co. v. Keith, 8 Ind. App., 57; s. c. 35 N. E. Rep., 296. (In an action against a carrier for the loss of goods, plaintiff was held entitled to recover regardless of the proof as to the negligence alleged.) Pittsburgh, etc., R. Co. v. Racer, 5 Ind. App., 209. (Complaint alleging that defendant failed to furnish cars for the transportation of plaintiff's cattle on a certain day "though able to do so," held to sufficiently allege that the carrier had the facilities.) Indianapolis, etc., Ry. Co. v. Forsyth, 4 Ind. App., 326; s. c. 29 N. E. Rep., 1138. (Where a common carrier by contract limits his liability to damages caused by negligence, the shipper must sue on the contract, and the burden of showing the carrier's negligence is on him.) Missouri.-Davis v. Jacksonville S. E. Line, Mo., 1894, 28 S. W. Rep., 965. (Defendant's obligation to transport goods through to L., their final destination, was held sufficiently pleaded, where it was alleged that the goods were delivered to defendant to be carried to E., and thence to be forwarded to plaintiff at L., and that defendant received the goods for said carriage and delivery, but failed to deliver them to plaintiff in good order.) South Carolina.Dunbar v. Port Royal, etc., R. Co., 36 S. C., 110; s. c. 15 S. E. Rep., 357. (In an action against a railroad company on a special contract to transport goods beyond its own line, it is sufficient to set forth the contract,

and it is not necessary to allege that defendant is a common carrier.) Texas.-Fort Worth, etc., R. Co. v. McAnulty, Tex. Civ. App., 1894, 26 S. W. Rep., 414. (A through contract held to be charged, where it was alleged that defendant was a carrier engaged in shipping cattle from points in Texas, by means of connecting lines to Chicago, and that defendant accepted plaintiff's cattle for shipment to Cairo and thence to Chicago for a specified compensation.)

ACTIONS FOR USE AND OCCUPATION.

[Principal Case, p. 133, this Vol.]

Alabama.-Grady v. Ibach, 94 Ala., 153; s. c. 10 So. Rep., 287. (Under Ala. Code, § 2715, authorizing such actions, where land is demised by deed, an action cannot be maintained by a cestui que trust on attaining majority against one who obtained possession under a lease from the trustees; as plaintiff did not lease the premises.) Colorado.-Hennessey v. Hoag, 16 Colo., 460; s. c. 27 Pac. Rep., 1061. (Use and occupation cannot be maintained unless the relation of landlord and tenant exists.) Board of Com'ers Pitkin County . Brown, Colo. App., 1894, 31 Pac. Rep., 525. (The action may be maintained against a tenant holding over.) Illinois.―Jacksonville, etc., Ry. Co. v. Louisville, etc., R. Co., 150 Ill., 480; s. c. 37 N. E. Rep., 924. (The value of use and occupation of premises may be recovered under the common counts.) Indiana.—Indianapolis, etc., Ry. Co. v. First Nat'l Bank, 134 Ind., 127; s. c. 33 N. E. Rep., 679. (Complaint is demurrable, if it sets up use and occupation of the premises for less than a year without alleging any agreement as to payment of rent, or duration of term, or any custom in regard thereto; since the presumption is, in absence of such facts, that defendant is tenant from year to year with rent payable annually at the end of the year.) Kansas.— Bank of Sun City v. Neff, 50 Kan., 506; s. c. 31 Pac. Rep., 1054. (Bill of particulars sufficiently states a cause of action, which alleges that plaintiff owned a certain building; that defendant used and occupied the same for a specified period with plaintiff's permission; that the use and occupation of the same for the period named were reasonably worth a specified sum; that no part thereof had been paid except a stated amount, and that there is due plaintiff from defendant for such use and occupation a given sum.) Massachusetts.-Cook v. Medbery, 150 Mass., 499; s. c. 23 N. E. Rep., 225. (A promise to pay rent will not be implied, where it appears that defendant left goods upon plaintiff's premises with his consent, and that plaintiff knew that defendant refused to pay rent, though plaintiff did not assent to such refusal.) Michigan.—Beecher v. Duffield, 97 Mich., 423; s. c. 56 N. W. Rep., 777. (The action may be maintained on a lease under seal.) New York.-Gustaveson v. Otis, 57 State Rep., 797; s. c. 27 N. Y. Supp., 280. (Description of premises by streets required to be made more definite and certain.) Oregon.- Kiernan v. Terry, Ore., 1894, 38 Pac. Rep., 671. (It is sufficient to describe the premises in such a manner as to enable them to be located.) United States.—Lazarus v. Phelps, 152 U. S., 81; s. c. 14 Supm. Ct., 477. (In Texas, an owner who overstocks his own

land and allows his cattle to graze on adjoining unoccupied land, is liable to the adjoining owner for the rental value of the land so used.) Texas.— Abbey v. Shiner, 5 Tex. Civ. App., 287; s. c. 24 S. W. Rep., 91. (The action cannot be maintained against one who allowed his cattle to graze on the uninclosed land of plaintiff.) Nolan v. Mendere, 77 Tex., 565, s. c. 14 S. W. Rep., 167. (An owner using a wall of an adjoining building as one side of a shed on his own premises, is not liable to the adjoining owner for the use of the wall.)

COMPLAINTS IN ACTIONS UPON A GUARANTY.

[Principal Case, p. 138, this Vol.]

Georgia.- Sims v. Clark, 91 Ga., 302; s. c. 18 S. E. Rep., 158. (Complaint held sufficient on demurrer, which set forth a copy of an account and the contract of the guaranty thereof, and alleged plaintiff's acceptance of the guaranty, and the non-payment of the account.) Michigan.—Clark v. Kellogg, 96 Mich., 171; s. c. 55 N. W. Rep., 667. (Where the guaranty provides that plaintiff shall use due diligence in the collection of the debt guarantied, an allegation that plaintiff used due diligence is equivalent to an averment that he pursued the course which the law imposed on him to charge the guarantor; but under such allegation plaintiff cannot show a waiver by defendant of any requirement necessary to charge him.) New York.-Cahill Iron Works v. Pemberton, 30 Abb. N. C., 450; s. c. 27 N. Y. Supp., 931. (A complaint alleging that the guaranty was given in consideration that the plaintiff should renew the notes whose payment is guarantied, is sufficient on demurrer, though the complaint sets forth a writing which purports to contain the guaranty, but which is defective under the statute of frauds in not stating the consideration.) Peters v. Chamberlain, 36 State Rep., 1000; s. c. 13 N. Y. Supp., 457. (Where complaint charges defendants as guarantors of a note, it cannot be amended at the trial to conform pleading to proof so as to charge defendants as indorsers.) Oklahoma.-Walter A. Wood Mowing, etc., Co. v. Farnham, 1 Okla., 375; s. c. 33 Pac. Rep., 867. (An undertaking indorsed on a note: "For value received I hereby guaranty the payment of the within note, waiving demand and protest," is not merely a guaranty that the note shall be paid by the maker, but an original promise to pay it; and in an action thereon the maker's insolvency, or plaintiff's efforts to collect the note need not be alleged.) South Dakota.— Greely v. McCoy, 3 S. D., 624; s. c. 52 N. W. Rep., 1050. (Complaint on a guaranty of collection is bad on demurrer, if it fails to allege demand upon the principal debtor, or any excuse for not making it.)

COMPLAINTS IN ACTIONS UPON JUDGMENTS. [Principal Case, p. 161, this Vol.]

(To

Alabama.—Andrews v. Flack, 88 Ala., 294; s. c. 6 So. Rep., 907. describe the judgment, it is sufficient to state the court in which it was recovered, the place where the court was held, the names of the parties,

the date of the judgment and the amount recovered.) Sims v. Hertzfeld, 95 Ala., 145; s. c. 10 So. Rep., 227. (Where the judgment is sufficiently described, no description of the contract on which the judgment was recovered is necessary.) California.-Weller v. Dickinson, 93 Cal., 108; s. c. 28 Pac. Rep., 854. (A judgment of a court of general jurisdiction is sufficiently pleaded without any allegation as to the jurisdictional facts, even in the short form.) Bronzan v. Drobaz, 93 Cal., 647; s. c. 29 Pac. Rep., 254. (It is not necessary to state that there has been no appeal, or that plaintiff has obtained leave of court to sue.) Edwards v. Kellings, 99 Cal., 214; s. c. 33 Pac. Rep., 799. (It must be directly alleged that a judgment has been recovered; it is not sufficient to allege, that it has been "adjudged" that the defendant pay the plaintiff a specified amount.) Missouri.-Wise v. Loring, 54 Mo. App., 258. (An allegation that the judgment remains valid and in full force is equivalent to an allegation that it is unpaid.) New York.-Wright v. Chapin, 74 Hun, 521; 31 Abb. N. C., 137; s. c. 56 State Rep., 718; 26 N. Y. Supp., 825. (In an action upon a foreign judgment directing the payment of money into court, an allegation, that under and pursuant to the laws of Canada, and the rules and practice of its courts, the judgment has all the force and effect of a personal judgment, and that plaintiff is entitled under said laws and practice to enforce the judgment as a personal judgment, and to receive payment for the purpose of enforcing it, sufficiently alleges the effect of the judgment under the foreign laws.) Crane v. Crane, 19 N. Y. Supp., 691. (Complaint held sufficient on demurrer, which alleged the recovery of a judgment in a court of another State; that the court was a court of general jurisdiction; that the judgment directed the payment of a specified sum, and that defendant was personally served with process in the action in which the judgment was recovered.) Wiehle v. Schwarz, 54 Super. Ct., 169. (Where an action was brought against Anton Schwarz, and the complaint alleged the recovery of a judgment against A. Schwarz, held, that the complaint was bad on demurrer for not alleging that defendant was known by the latter name.) Oregon.—Beekman v. Hamlin, 19 Ore., 383; s. c. 25 Pac. Rep., 672. (If complaint shows facts which would raise a presumption of payment from lapse of time, it is bad on demurrer, unless it allege facts to rebut such presumption.) Cougill v. Farmers', etc., Ins. Co., 25 Ore., 360; s. c. 35 Pac. Rep., 975. (In an action upon a judgment recovered in another State, complaint alleged that an order vacating the judgment was vacated and annulled on a writ of certiorarai. Held, that the complaint was bad in that it did not allege remittitur to the lower court.) Texas.-Hall v. McKay, 78 Tex., 248; s. c. 14 S. W. Rep., 615. (A petition upon a judgment of another State need not attach a copy of the record as an exhibit.) Henry v. Allen, 82 Tex., 35; s. c. 17 S. W. Rep., 515. (A transcript of a judgment of a court of another State showing the action to have been tried before a special judge because the regular judge was disqualified, is admissible in evidence, although the petition does not allege that by the laws of the State in which the judgment was recovered the special judge was authorized to try the case.) Washington.-Weber v. Yancy, 7 Wash., 84; s. c. 34 Pac. Rep., 473. (An action may be brought on a judgment of a court of

another State without leave of court, although by the law of the State where the judgment was rendered no action can be maintained on a judgment without leave.) Wisconsin.-Piershoff . Jorges, 86 Wis., 128; s. c. 56 N. W. Rep., 735. (Short form of pleading a judgment of a court of special jurisdiction complied with by an allegation that plaintiff recovered judgment against defendant, and that such judgment was "duly docketed.")

COMPLAINTS IN ACTIONS FOR MONEY HAD AND RECEIVED.

[Principal Case, p. 179, this Vol.]

Georgia-Minor v. Ozier, 84 Ga., 476; s. c. 10 S. E. Rep., 1088. (Complaint alleging, in effect, that plaintiff had given defendant money to settle with certain of plaintiff's creditors, that defendant had neglected to do so, and that plaintiff had effected a settlement with the creditors by other means-states a cause of action for money had and received.) Snook v. Ragean, 89 Ga., 251 ; s. c. 15 S. E. Rep., 364. (A declaration alleging that defendant was indebted for a specified sum received for plaintiff's use, and which he promised to pay plaintiff when requested, may be amended so as to allege demand therefor, and, as amended it states a cause of action.) Indiana.-Smythe v. Scott, 124 Ind., 183; s. c. 24 N. E. Rep., 685. (An averment that defendant received a large sum of money for plaintiffs and that though often requested he has refused to account for it or pay it over, sufficiently alleges indebtedness and nonpayment.) Warden v. Nolan, Ind. App., 1894, 37 N. E. Rep., 821. (In an action for money had and received, it is not necessary that plaintiff should allege demand.) Kentucky.-Martin v. Richardson, 94 Ky., 183; s. c. 21 S. W. Rep., 1039. (Complaint alleging that plaintiff by fraud had been induced to surrender a lottery ticket, which unknown to him had drawn a prize, and that defendant had received the prize money, states a cause of action for money had and received, and is not founded on the purchase of a lottery ticket.) Massachusetts.-Holst v. Stewart, 161 Mass., 516; s. c. 37 N. E. Rep., 755. (A count for money had and received with a bill of particulars claiming cash paid "by mistake and under misapprehension of facts at the time of conveyance," etc., is, in absence of motion for further particulars, sufficient on demurrer.) Michigan.-Lane v. Pere Marquette Boom Co., 62 Mich., 63; s. c. 28 N. W. Rep., 786. (Money paid on an express contract by mistake may be recovered on the common counts without setting up the special agreement.) Missouri.-Johnson-Brinkman Co. v. Central Bank, 116 Mo., 588; s. c. 22 S. W. Rep., 813. (Petition alleging the conversion of wheat by defendant, and that he had the proceeds thereof equal to its value, and demanding the value of the wheat, is sufficient to support a verdict for money had and received, especially where tried on that theory.) Nebraska. Fletcher v. Cummings, 33 Neb., 793; s. c. 51 N. W. Rep., 144. (In an action for money received by plaintiff's agent, an averment that