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South Dakota.-Probert v. McDonald, 2 S. Da., 495 ; s. c., 51 N. W. Rep., 212. (It is sufficient to allege generally that the conveyance was made with the intent to delay and defraud the grantor's creditors.) United States.-Kittel v. Agusta, etc., R. Co., 65 Fed. Rep., 859. (Allegations, not that the acts were fraudulently done, but that they were done with intent to defraud, is sufficient.) Pullman v. Stebbins, 51 Fed. Rep., 10. (Bill charging several distinct conveyances to be all the part of one scheme to deprive plaintiff of the power to collect his claim, held not to be multifarious.) Washington.-Wagner v. Law, 3 Wash. St., 500; s. C., 28 Pac. Rep., 1109. (In an action by a judgment creditor to quiet the title to land fraudulently conveyed, which he had purchased in at execution sale, held, that the complaint was fatally defective in failing to allege that the debtor had not other property subject to execution at the time the conveyance was made.) Wisconsin.-Marston v. Dresden, 76 Wis., 418 ; s. C., 45 N. W. Rep., 110. (A complaint describing as separate causes of action five distinct transfers of realty, held to set out but one cause of action.) Marston v. Dresden, supra. (Fraud held to be sufficiently shown by allegations, that defendant owned certain property when the debt was contracted, that he transferred it to his wife without consideration, and that he was heavily in debt when he did so.)

(4) Exhaustion of legal remedies, issuing of execution, etc. Alabama.-Jones v. Smith, 92 Ala., 455 ; s. c. 9 So. Rep., 179. (In a bill under the Code, $ 3544, providing that a creditor without a lien may file his bill to subject to his debt property fraudulently conveyed, it is not necessary to allege that there has been an issue and return of execution on the judgment sought to be enforced.) Mlinois. -Quinn v. People, Saline Co., 146 II., 275; s. c. 34 N. E. Rep., 148. (An allegation that executions have been issued on the judgment, and returned unsatisfied, is sufficient to show that complainant has exbausted his legal remedies.) Indiana.Line v. State, 131 Ind., 468; s. c. 30 N. E. Rep.. 703. (Demurrer should be sustained, where complaint fails to show that the alleged fraudulent grantor had no property subject to the execution at the time the suit was commenced.) Kentucky.Mansfield v. Wilkinson, Ky., 1894, 27 S. W. Rep., 808. (Exhaustion of legal remedies is not shown by an allegation that no transcript of the judgment has been filed, and no execution sued out thereon because the debtor had no land other than that sought to be sold.) Minnesota.–Scanlan v. Murphy, 51 Minn., 536; s. c. 55 N. W. Rep., 799. (Plaintiff need not show that he has followed his legal remedy further than to recover and docket his judgment.) Missouri.—Mullen v. Hewett, 103 Mo., 639; s. c. 15 S. W. Rep., 924. (Where it appears that plaintiff has permitted his judgment to become dormant, a demurrer will be sustained; until plaintiff has sued on the judgment, renewed it, issued execution, etc., he has not exhausted his legal remedies.) New York.Citizen's Nat. Bank v. Hodges, 80 Hun, 471; s. c. 62 St. Rep., 278 ; 30 N. Y. Supp., 445. (Where complaint alleges a fraudulent intent on defendants part, it need not allege that plaintiffs' were remediless because defendants had disposed of all their property.) Citizen's Nat. Bank v. Hodges, supra. (Held, that it was sufficient to allege, “that thereafter and on the same day an execution upon such judgment was duly issued to the Sheriff of said S. County, where said defendants then resided, and yet reside, which execution was thereafter and before the commencement of this action duly returned by said Sheriff unsatisfied, and said judgment still remains wholly unpaid and unsatisfied ;” and that the kind of execution and against whom it was issued could be shown by evidence thereunder.) Rhode Island.–Stone v. Westcott, R. I., 1894, 28 Atl. Rep., 662. (Demurrer sustained, where the bill did not allege that the execution had been issued on plaintiff's judgment and returned unsatisfied.) South Carolina.—Miller v. Hughes, 33 S. C., 530; s. c. 12 S. E. Rep., 419. (Where complaint seeks to set aside a conveyance for actual moral fraud, committed by collusion of parties thereto, a failure to allege that plaintiff has recovered judgment, and obtained a return of nulla bona on his execution, does not render such complaint demurrable.) S. P. Meinhard v. Youngblood, S.C., 1892, 15 S.E. Rep., 950. Texas.-Meier v. Waco St. Bank, Texas Civ. App., 1894., 27 S. W. Rep., 881. (A bill is bad on demurrer if it fails to show that the creditor has exhausted all his legal remedies.) United States.-Morrow Shoe Manuf. Co. v. New England Shoe Co., 6 C. C. A.-, 57 Fed. Rep., 685. (Bill to set aside a fraudulent conveyance must allege that plaintiff prosecuted his claim to judgment and had an execution issued thereon which has been returned unsatisfied ;) Following Scott v. Neely, 140 U.S.,106 ; 11 Supm. C. Rep., 712; Cates v. Allen, 149 U.S., 451 ; 13 Supm. C. Rep., 883; S. P. Kittel v. Augusta, etc., R. Co., 65 Fed. Rep., 859. Washington.O'Leary v. Duvall, Wash., 1895, 39 Pac. Rep., 163. (The fact that debtor had no other property out of which an execution could be satisfied, held to be sufficiently shown by an allegation that the land conveyed was all the property the debtor owned and that an execution against him had been returned nulla bona.) Whitehouse v. Point Defiance, etc., R. Co., Wash., 1894, 38 Pac. Rep., 152. (In an action to set aside a fraudulent conveyance as to creditors, an allegation that the vendor has more judgments rendered against it than it can pay sufficiently shows that it has no other property out of which judgment can be collected.) Wisconsin.-Pierstoff v. Jorges, 86 Wis., 128; s. c. 56 N. W. Rep., 735. (An allegation that on a day named an execution was “in due form" issued against defendant and returned wholly unsatisfied, is sufficient to show that a legal execution has been issued.) Daskam v. Neff, 79 Wis., 161 ; s. c. 47 N. W. Rep., 1132. (Complaint must show the exhaustion of plaintiff's legal remedies, but there need not be a distinct allegation that the debtor has no other property than that sought to be subjected.)




[Principal Case, p. 333, this Vol.] Alabama.-Farley v. Farley, Ala., 1892, 10 So. Rep., 646. (Marriage held to be sufficiently stated by an allegation that on a specified day, complainant, “ whose maiden name was A. B., was lawfully and legally married unto X. Y.”) Id. (It is sufficiently certain to allege that “defendant has been guilty of adultery with divers parties and persons whose names are unknown to your oratrix.”) California.–Forney v. Forney, 80 Cal., 528; s. C., 22 Pac. Rep., 294. (Complaint held to be sufficient, which alleged in the language of Civ. Code, $ 106, that defendant's intemperance was such “as would reasonably inflict a course of great mental anguish" upon plaintiff); S. P., Reading v. Reading, 96 Cal., 4; s. C., 30 Pac. Rep., 803. Johnson v. Johnson, Cal., 1894, 35 Pac. Rep., 637. (Demurrer overruled, where complaint alleged that “about three years ago" defendant, without cause, struck plaintiff, and since then, has continually, whenever they have been together, used vile language to plaintiff.) Colorado.—Calvert v. Calvert, 15 Colo., 390 ; s. C., 24 Pac. Rep., 1043. (Willful desertion without any reasonable cause for the space of one year held to be sufficiently charged by a complaint, alleging that for more than one year, and up to the time of action, defendant continuously absented herself from home and refused to live with plaintiff, and still did so without any fault on plaintiff's part; and that the desertion became completed while plaintiff was a resident of the state.) Indiana.Poison v. Polson, Ind., 1895, 39 N. E. Rep., 498. (Complaint held to sufficiently show defendant's conviction of an infamous crime, which alleged that defendant “was convicted of the crime of rape upon a little girl, the daughter of plaintiff.") Kansas.-Winterbury v. Winterbury, 52 Kan., 406; s. C., 34 Pac. Rep., 971. (The acts relied on to constitute cruelty should be alleged.) Callen v. Callen, 44 Kan., 370 ; s. C., 24 Pac. Rep., 360. (It is error to overrule a motion to make the petition more definite and certain, where it merely alleges, “that during the time the defendant lived with plaintiff as his wife, he was guilty of gross neglect of duty and extreme cruelty towards the plaintiff.'') Minnesota.—Grant v. Grant, 53 Minn., 181 ; s. C., 54 N. W. Rep., 1059. (Facts which would entitle plaintiff to a limited divorce may be joined in a complaint with those justifying an absolute divorce, and relief may be sought thereon in the alternative.) Missouri.—Collins v. Collins, 53 Mo. App., 470. (Petition should allege plaintiff's continuous residence in the state for at least a year.) Gant v. Gant, 49 Id., 3. (It is not necessary for the petition to allege that plaintiff is a resident of the county in which the aetion is brought.) New Jersey.Lutz v. Lutz, N. J. Eq., 1894, 28 Atl. Rep., 315. (Where condonation is interposed as a defense, an amended petition may be filed charging defendant with acts of adultery subsequent to the alleged condonation, and subsequent to the commencement of the action.) Chadwick v. Chadwick, N. J. Eq., 1894, 28 Atl. Rep., 1051. (Where the only cruelty charged is the use of abusive and filthy language, gross abuse of marital rights is not available.) New York.Carpenter v. Carpenter, 17 N. Y. Supp., 195; s. C., 42 State Rep., 577. (Plaintiff will not be required to give a bill of particulars where complaint alleges that defendant is living “in adulterous intercourse” with a woman.) Halsted v. Halsted, 7 Misc., 23; s. C., 27 N. Y. Supp., 408. (Additional acts of adultery committed since the commencement of the action cannot be set up by supplemental complaint); S. P. Neiberg v. Neiberg, 31 Abb. N. C., 257; s. C., 8 Misc., 97; 28 N. Y. Supp., 1005. North Carolina.-O'Conner v. O'Conner, 109 N. C., 139; s. C., 13 S. E. Rep., 887. (Complaint must explicitly show that the personal violence complained of was not due to any provocation on plaintiff's part.) Sheete v. Sheete, 104 N. C., 631 ; s. C., 10 S. E. Rep., 707. (A husband, seeking a divorce on the ground of adultery, need not allege that it has not been due to his fault, or that he has not himself been guilty thereof.) Jackson v. Jackson, 105 N. C., 433 ; s. C., 11 S. E. Rep., 173. (Complaint should have been dismissed, which merely alleged that defendant “ became violently jealous of her, the said plaintiff, and began to treat her cruelly and barbarously so as to endanger her life; frequently at night, when no other person in the house was awake, shaking his fist and threatening to mash her brains out.”) Oklahoma.-Irwin v. Irwin, Okl., 1894, 37 Pac. Rep., 548. (Complaint held not to be demurrable, which alleged “that on or about February, 1892, and on divers other occasions prior and subsequent thereto, defendant was guilty of cruel and inhuman treatment of the plaintiff in this, to wit, slapped said plaintiff ; that for a long time past said defendant cursed and abused said plaintiff by calling her vile names; and that defendant fails and refuses and neglects to provide for the plaintiff and her children according to his station in life.") Pennsylvania.—Melvin v. Melvin, 130 Pa. St., 6; s. C., 18 Atl. Rep., 920. (Libelant may be permitted to amend her bill of particulars by adding allegations that respondant had charged her with infidelity.) Texas.-Morey v. Morey, 82 Tex., 308; s. C., 17 S. W. Rep., 838. (Petition held to be sufficiently definite and certain, which alleged that plaintiff for more than six months had been a bona fide citizen of the state, and that defendant resided in Massachusetts ; that plaintiff and defendant were married in New Hampshire, and lived together as man and wife in Massachusetts until 1880, when defendant voluntarily, without cause, abandoned plaintiff with the intention of finally separating from him, and continued to live apart from him up to the filing of the petition.) Andrews v. Andrews, 75 Tex., 609; S. C., 12 S. W. Rep., 1124. (Demurrer properly sustained, where petition failed to show that there had been a marriage previous to the filing of the petition.) Hanna v. Hanna, 3 Tex. Civ. App., 51 ; s. C., 21 S. W. Rep., 720. (Evidence that defendant communicated a venereal disease on other occasions than those charged in the bill held to be admissible on the ground that it tended to show the extent of defendant's alleged excesses and cruel treatment.) Washington.-Burdick v. Burdick, 7 Wash., 533 ; s. C., 35 Pac. Rep., 415. (Though the last act of adultery was not alleged to have been committed within one year before the action, nor that it was unforgiven, if proof of both facts were given, a judgment by default will not be reversed.) Scoland v. Scoland, 4 Wash., 118; S. C., 29 Pac. Rep., 930. (Acts of cruelty occuring subsequent to the commencement of the action may be set up by supplemental complaint.)



[Principal Case, p. 339, this Vol.]

(1) The contract for building or materials, notice to owner of

sub-contractor's claim, etc. (2) Notice of lien, its filing, etc.

(3) The premises affected, etc. (1) The contract for building or materials, notice to owner of sub

contractor's claim, etc. Alabama.—Lee v. Wimberly, Ala., 1894, 15 So. Rep., 444. (The variance is fatal, where complaint alleges a sale of material to the contractor and owner, and the evidence shows a sale to the contractor only.) Arkansas. — McFadden v. Stark, 58 Ark., 7; s. C., 22 S. W. Rep., 884. (In an action by a sub-contractor, an allegation of the giving of notice to the owner of the premises of plaintiff's claim is material, and it is error to strike such allegation out of the complaint.) California.-Gancy v. Morton, 94 Cal., 558; s. C., 29 Pac. Rep., 1111. (Under Code Civ. Pro., Sec. 1183, 1184, a material man need not plead the construction contract and its invalidity, but may plead that the goods were sold at the special request of the owner, the contract and its invalidity being matters of evidence.) La Grille v. Mallard, 90 Cal., 373 ; s. C., 27 Pac. Rep., 294. (Held, that an allegation, that defendant promised to pay “the reasonable value” of said labor and material, indicated a sufficient consideration to render the contract valid.) Booth v. Pendola, 88 Cal., 36 ; s. C., 25 Pac. Rep., 1101. (The value of the materials furnished, and the work done, must be alleged and proved.) West Coast Lumber Co. v. Newkirk, 80 Cal., 275 ; s. C., 22 Pac. Rep., 231. (Where complaint alleges that the building was constructed with the owner's knowledge, it need not allege that the owner did not give notice that he would not be responsible for the work.) Jewell v. McKay, 82 Cal., 144; 23 Pac. Rep., 139. (Complaint is not ambiguous and uncertain because it fails to state the nature of the alterations and repairs done, or whether the various lien holders separately or jointly contributed to the work.) Castaguinio v. Ballatta, 82 Cal., 250 ; S. C., 23 Pac. Rep., 127. (Evidence of a special contract and defendant's acceptance of the work done under it is admissible under the common counts.) Wagner v. Hansen, 103 Cal., 104; 37 Pac. Rep., 195. (Where complaint and claim of lien state that the work was done for an agreed price, and the evidence shows that no price was agreed upon, the variance is fatal.) Palmer v. Lavigne, 104 Cal., 30; 37 Pac. Rep., 775. (A claim and notice stating that the contract was made with the wife, is inadmissible in evidence, under a complaint alleging that it was made with both husband and wife.) Cohn v. Wright, 89 Cal., 86; s. C., 26 Pac. Rep., 643. (The complaint should directly allege that the materials were furnished to be used in the construction of the building upon which the lien is claimed.) S. P. Reed v. Norton, 90 Cal., 590; S. C., 26 Pac. Rep., 767. Russ Lumber & Mill Co. v. Garrrettson, 87 Cal., 589; S. C., 25 Pac. Rep., 747. (It is sufficient for a material man to aver, that

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