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(b) "The plaintiff need not aver the truth of statements contained in the application,
nor the performance or non-performance of conditions subsequent, nor negative prohibited
acts, nor allege that he is within the excepted risks" (May on Insurance, {590; and see



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PETITIONS ON WRITTEN CONTRACTS. 517

cases cited in Id., $589, note 4; and note (a) to my next following Form) ; though it is in-
ferable from Chitty's forms that such averments were formerly usual.
{c) See note (a) to Form 10, a, ante, page 508.

(d) As to this averment see note (/) to the next following Form.

[e) As to compliance with the condition concerning the certificate see note (£), ante,
page 64.

(/) 1. This averment would make unnecessary all the preceding averments which fol-
low the averment of the notice of loss: See P/tanix Insurance Company v. Spiers 6*
Thomas, 87 A>., 288.

2. In Kentucky and according to what seems to me to be sound law, though in oppo-
sition to what May on Insurance (f 589) regards as the weight of authority, the plaintiff
can not prove an excuse for non-performance of a condition precedent under an allegation
of p erf ormance. Thompson v. Jewell, 1 Mar., 196; Cochran v. Tatum, 3 Mon., 404;
Hoofman v. Sharp, 1 /. /. M., 489.

(g) This averment, taken from a form of Chitty's, might be advisable, if the plaintiff
can swear to its truth ; because, though, being an allegation of legal conclusions, it would
be insufficient on demurrer, if the defendant should make an issue on it and the jury
should find for the plaintiff, the verdict would probably cure the defect of omitting spec-
ially to aver performance of some condition precedent. See note 3, ante, page 179.

(h) The prayer should be for sufficient damages to embrace interest from the expiration
of sixty days after furnishing proof or after waiver of proof.

b. Petition on a life-policy, against a foreign insurance company (a).

Henry Rudwing, Plaintiff, 1 Jefferson Court of Common Pleas.

against l Petition.

The Germania Life Ins. Co. . .Defendant. J

The plaintiff, Henry Rudwig, says that the defendant is a corporation created by the
laws of the State of New York and empowered [to sue and be sued, contract and be con-
tracted with (b), and] to do general life-insurance business.

And the plaintiff further says that, upon the 12th day of April, 1869, the defendant,
[was authorized and empowered to do business in the State of Kentucky (c) and,] in con-
sideration of the representations made to it, and of the premium of $47.54 paid to it on
said date, and of the further sum of $47.54 semi-annual payments to be paid on the 12th
day of October and April in every year during the continuance of the said policy, did
assure the life of. Bernard H. Gothelf, of Louisville, Kentucky, for the use of the plain-
tiff, who was the creditor of said Gothelf (d), in the sum of $2,000.00; and the said de-
fendant did, by said policy, promise and agree to and with him well and truly to pay or cause
to be paid the said sum to the plaintiff, his executors, administrators, or assigns, within
sixty days after due notice and proof of the death of the said Bernard H. Gothelf during
the continuance and before the expiration of said policy. Said policy of insurance is
filed herewith [as part hereof marked Exhibit U A" (e) J.

And the plaintiff further says that he paid to the defendant the semi-annual premiums
of $47*54 on or before the 12th days of October and April of each and every year up to the
.... day of , 1878 (/), upon which said day of , 1878, and during the con-
tinuance and before the expiration of said policy of insurance, the said Bernard H. Got-
helf departed this life; and due notice and proof of the death of said Bernard H. Gothelf
were furnished to the defendant sixty days before the beginning of this action, [and which
said proof of death was made in accordance with the direction and instruction of the said
defendant and accepted by it as satisfactory (g ) ] ; yet, in violation of the terms of its said
contract, the said defendant has not well and truly paid or caused to be paid the said sum
of $2,000.00 assured to the plaintiff, his executors, administrators, or assigns [within sixty
days after due notice and proof of the death of said Gothelf (h) ] but refuses and fails to
pay the same [though it has been often demanded (/) ].

Wherefore the plaintiff prays for judgment for the sum of $2,000.00, with interest from
the 1st day of January, 1878, [until paid (j ) ] and all proper relief.

A. B., Attorney.



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518



FORMS.



(a) This form, including the bracketed parts of it (the brackets having been inserted
by me), is a copy of a petition concerning which the court said, in Germania Insurance
Co. v. Rudwig y &v., 80 Ky., 223: "The petition contains the usual averments which are
essential to a cause of action on such a policy."

Rudwig's action was on a policy which contained provisions that it should "cease and
be void and of no effect," if the representations of the assured, on the faith of which the
contract was founded, should be found in any respect untrue ; or if he should, without the
consent of the company, pass beyond the limits of the United States, &c. ; or if he should
engage in the service of any railroad, &c. ; or should die by his own hand or bj the hands
of justice, &c. : that case is authority, therefore, that such provisions constitute conditions
subsequent, which may furnish matters for defence but need not be noticed in the plain-
tiff's petition.

But, as will be shown (because I am unwilling to publish a defective or misleading
Form without explanation), Rudwig's petition made, not only several unnecessary state-
ments, but one erroneous omission to which, however, the attention of the court does not
seem to have been called.

(b) These bracketed averments are clearly unnecessary, the power to contract, &c,
being necessarily embraced by the power to do a general life-insurance business.

(c) This averment has been held to be unnecessary, not only in an action by the insured,
but in an action by the insurer on the defendant's contract to pay premiums (see May on
Insurance, \ 590) ; and I submit that, as has been held in several cases (see May on Insur~
once, \ 577), the defendant would be estopped from taking advantage of its own wrong
by showing that the contract was made in violation of our statutory laws relating to
foreign insurance companies: such ruling would conform, and ruling to the contrary
would not conform, to that public policy which forbids judicial enforcement of such con-
tracts in actions brought by foreign insurance companies, as to which see Franklin Ins.
Co. v. Louisville and Ark. Packet Co., 9 Rush, 590. It seems clear, at any rate, that the
burden of alleging and proving that the insurer has done its duty by complying with those
laws ought not to be thrown on the insured.

(d) A person can not lawfully insure another's life for his own benefit, unless he have
"a reasonable ground, founded on the relations of the parties, either pecuniary or of
blood or affinity, to expect some benefit or advantage from the continuance of the life of
the assured" (81 Ky., 375) ; and in an action on the policy the plaintiff's petition should
show that he had such an interest. May on Insurance, \ 590. It seems clear that A.'s
indebtedness to 8 for $20.00 does not make it lawful for B. to insure A.'s life for $2,000.00;
and that Rudwig's petition was defective in failing to state the amount of Gothelf's
indebtedness to him — a defect, however, to which the attention of the court does not
appear to have been called by demurrer or otherwise.

(e) These bracketed words seem to be unnecessary. See note (h), ante, page 500.

(/) The plaintiff's agreement to pay the premiums and the defendant's agreement to
pay the $2,000.00 being independent covenants (see note 4, ante, page 68), the averment of
payment of the premiums would have been unnecessary if those payments had not been,
as they were, expressly declared to be conditions precedent to the plaintiff's right of
recovery. See note (a), ante, page 500.

(g) This averment was unnecessary, the allegation of due notice and proof of death
having been furnished being sufficient: and, in an action on a policy requiring "due
notice and proof of death," it is not necessary for the plaintiff's proof to state the facts and
circumstances attending the death ; and if it unnecessarily state that the death resulted
from a cause which, according to a provision in the policy, would make it void, an answer
of the defendant, averring that the plaintiff's proof stated the existence of that fact,
would not present a defence, the plaintiff's allegations concerning notice and proof of
death not having been denied. Connecticut Afut. Life Ins. Co. v. Sieqel, 9 Bush, 450.

(h) This averment was unnecessary, and, standing alone, it would have been insufficient,
as payment at any time before the commencement of the action would have constituted a
defence.

(*) This averment was unnecessary, it being the defendant's duty to pay the money
without demand, within sixty days after notice and proof of death ; and, if a demand had
been necessary, the mode of stating it would have been insufficient. See note VI, ante,
page 73.

(j) A prayer for interest on money "until paid" is not only unnecessary but seems
unadvisable; as, on a prayer for interest omitting those words, the court might give judg-
ment for the interest which had accrued, and the judgment therefor would bear interest.
See G. S., ch. 60, J 6.



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PETITIONS ON WRITTEN CONTRACTS. 519

■ 1 — ^ — _ ^ _ __ _ —

1 5 . Petition on wife's contract, made by her whilst unmarried (d).

A. B Plaintiff, \ Lee Circuit Court.

against V Petition.

C. D., and his wife, E. D Defendants. J

The plaintiff, A. B., says that the defendant, E. D., who is wife of the defendant, C.
D., and who was E. F. before her marriage, did, whilst unmarried, by a writing [state
date, &c, as in Form 1], promise to pay to the plaintiff five hundred dollars six months
after said date [and that said C. D., by virtue of said marriage, became the owner of per-
sonal property belonging to his said wife of the value of over six hundred dollars (b) ] ;
and that neither of the defendants has paid any part of said money nor any interest
thereon.

Wherefore the plaintiff asks for judgment against them for five hundred dollars and
interest from [the date of maturity of the note] and costs [and any other relief he may
appear entitled to].

(No verification necessary.) E. F., Attorney.

(a) As to this form, see note (4), ante, pages 32, 33. As the plaintiff is not bound to
allege that he requested the wife to pay (note VI, ante, page 73), and as her husband's lia-
bility depends on her liability, it seems unnecessary to aver that he was requested to pay.

(i) This allegation is unnecessary; but, if made and proved or not denied, the plain-
tiff would, doubtless, be entitled, as in an action aganst heirs to whom property has de-
scended (see note 3, ante, page 374), to a judgment against the husband in personam, unless
other debts be shown to have existed.

16. Creditor's petition against decedents personal and real represen-

tatives (a).

Lee Circuit Court.

A. B Plaintiff, ]

against V Petition.

C. D., administrator, and G. F. and H. I., heirs of E. F Defendants, J

The plaintiff, A. B., says that the aforesaid E. F., by a writing dated the ... . day of . . . .,
which he signed and delivered to the plaintiff, and which is filed herewith, promised to
pay to the plaintiff five hundred dollars six months after said date; that, the said E. F.
having died intestate, the defendant, C. D., was appointed and qualified as administrator
of his estate by an order duly made (b) by the county court of Lee County, on the ... .

day of (c), [an attested copy of which order is filed herewith (a*) ] ; that the said E.

F. left, as his only heirs, the defendant, G. F., son of the said E. F., and the defendant,
H. I., grand-daughter of the said E. F., and daughter of K. I., who was daughter of said
E. F., and died during his lifetime; [that the said G. F. and H. I. received by descent

from the said E. F. real estate situated in Lee County of the value of dollars, and

the said G. F. sold his interest therein for dollars on the .... day of (e) ] ;

and that neither the said E. F. nor either of the defendants has paid any part of said
money nor any interest thereon.

Wherefore the plaintiff asks for judgment against the defendant, C. D., as administrator
as aforesaid, and against the said G. F. and H. I., [personally — or] as heirs as aforesaid,
for five hundred dollars and interest thereon from [the maturity of the debt], and costs
[and any other relief the plaintiff may appear entitled to].

(No verification necessary.) L- M., Attorney.

(a) 1. The same actions which lie in behalf of a creditor against the administrator and
heirs of a decedent lie against his executor and devisees. At law, upon a contract ex-
pressly binding the heirs of a decedent, his creditor can maintain either a joint action, or
separate actions, against his personal and real representatives. But, unless the heirs be
expressly bound by the decedent's contract, the creditor can not maintain an action, at
law, against his heirs or devisees except in conjunction with his administrator or executor;
and in such action, the creditor, if his demand be sustained, is entitled to a judgment



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520 FORMS.

against the personal and real representatives, to be levied of assets which have cone or
may come to the hands of the former and of estate which has come or may come to the
hands of the latter ; unless as to the latter, it be alleged and proved or not denied that
real property has come to their hands by descent or devise, in which case the creditor is
entitled to a judgment in personam against them, to the extent of the value of sac*
property, not exceeding the amount of the plaintiff's demand. But under an execution
on a judgment, to be levied of assets and estate which have come or may come to the
hands of the defendants, it is the sheriff's duty to sell, 1st, the estate in the hands of
the personal representative; 2d, the estate descended to the heir; and, 3d, the estate
devised. As to the foregoing propositions, sec note II, ante, page 372, and Gem. SL, ci.
38, art. 18, J 2.

2. As to stating the pedigree of heirs, see ante, last paragraph of notes on page 148;
2d paragraph of notes on page 76; and 3d paragraph of note 14, page 127.

3. Though, in general, a creditor, before suing a personal representative, must make
oath that his demand is just, &c, and make proof of its correctness, unless it be founded
on a written contract, and, on presentation thereof to the personal representative, request
payment, his petition need not state that he has done so ; and no affidavit or demand is
necessary as to real representatives. See Code, §437, and notes thereto.

4. As to actions in equity against heirs and devisees, see Form 66, post, and notes thereto.
(b) See Code, g 122, and notes.

(<r) In general, an action can not be maintained against a personal representative, if
commenced within six months after the qualification of the first personal representative of
the decedent. G. S. t ch. 39, art. I, §23.

(d) This, though perhaps usual, seems to be unnecessary, though the copy may be
filed as an exhibit under { 128.

(e) See G. S., ch. 44, art. I, J 8.

17. Petitions in actions on statutory bonds (a).

(1). Petitions in actions on fiducial bonds.

a. Creditor* s petition against administrator and his sureties, suggesting a devastavit [I).

A. B. and the Commonwealth of Kentucky,

suing for the benefit of said A. B., Plaintiffs (r),

against

C. D., E. F., and G. H., Defendants.

The plaintiffs, A. B., and the Commonwealth of Kentucky, suing for the benefit of
said A. B., say that the defendant, C. D., having been appointed administrator of the

estate of I. J., by an order duly made (d) by the county court of county, he, as

principal, and the defendants, E. F. and G. H. as his sureties, subscribed a bond dated

the .... day of , which was approved by said court, and attested by its clerk, and

which is in his office [and an attested copy of which is filed herewith], and by which they
covenanted to and with the plaintiff, the Commonwealth of Kentucky, that the said C

D. would well and truly administer the goods, chattels, credits, and effects of the said
I. J. according to law (e) ; that, in an action brought by the plaintiff, A. B., against the

said C. D., administrator as aforesaid, in the circuit court, the said court, on the

day of , duly rendered (d) a judgment in favor of the plaintiff against said

C. D., as such administrator, for dollars and interest from the . . . day of ,

until paid, and costs, which amounted to dollars, as appears of record in said court,

which said judgment is in full force and effect, and has not been to any extent satisfied;
and that, when said Judgment was rendered (/), personal property of the said I.J.
had come to the hands of the said C. D., administrator as aforesaid, to be administered,
of the value of dollars [or— of value more than sufficient to satisfy said judg-
ment] (g), and which the said C. D. eloined [or— wasted— or— disposed of and converted
to his own use].

Wherefore the plaintiffs ask for judgment in favor of said A. B. against the defend-
ants for dollars damages and costs [and any other relief the said A. B. may appear

entitled to].

(Verification as in Form 1.) L. M., Attorney.



Lee Circuit Court.
Petition.



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PETITIONS ON WRITTEN jCONTRACTS. 521

(a) I. The Code and General Statutes require bonds containing express covenants,
instead of the penal bonds which were formerly given in attachment and injunction suits,
and by sheriffs, guardians, administrators, &c. Such bonds, being in the custody of pub-
lic officers, can not be Hied with petitions in actions thereon, and, consequently, such
petitions must be verified. See notes to Form I, ante.

2. The Code does not require the plaintiff to file a copy of such bond with his petition ;
for, though g 1 20 has substituted a reference in the petition to, and filing therewith of, a
writing sued on for the profcrt required by the common law in actions on contracts under
seal, no provision of the Code requires the plaintiff to file a copy of a contract the orgi-
nal of which he can not file.

The common law does not require profert of a writing which is in the rightful custody
of a public officer (2 J.J. M., 270) ; and, as the chief object of profert is to enable the
defendant to see the writing and to take a copy of it if he choose to do so, and as writings
in official custody are equally accessible to both parties, the reason for requiring profert
does not seem applicable to copies thereof; and profert of such copies seems to have been
held unnecessary in Anderson v. Barry, 4 /. J. A/., 265, and Kelly v. Lank and Stephens %
7 B. M. t 220; but such profert, if not held to be necessary, was held to be sufficient in
Moore's ex>rs v. Paul, 2 Bibb, 330; Brents v. Sta/tl, 3 Id., 482; Stout v. Ashton, 5 A/on.,
252, and Carson, crV., v. Pearl, S*c, '4. J.J. M.,92; and, if such profert be necessary now,
it seems clear that, under the Code, the fijing of an attested copy with, and referring
thereto in, the petition would be equivalent to the ancient mode of making profert.

Under the G. S., ch. 37, $4, 5, if an attested copy of a statutory bond be filed by the
plaintiff, *' the defendant shall plead thereto as if the original were filed; " and such copy
would, at any rate, constitute an exhibit under \ 128 of the Code.

(6) 1. In this action it is not necessary to name the principal defendant as administrator
in the caption of the petition. See 4 Bibb, 83.

2. Before a creditor can maintain an action at law for a devastavit, his debt must be
ascertained by a judgment against the personal representative (1 f. J. M., 180; 2 Id.,
208) ; but, though it was formerly held otherwise, a return of nulla bona is not necessary
(3 Met., 63, and cases cited) ; and, after such judgment, though it was formerly held other-
wise, the creditor can maintain an action against the personal representative and the sure-
ties in his fiducial bond, for a devastavit, without having established it in an aotion against
him. 1 J. J. M., 183-84; 2 Id., 19, 20.

As to actions in equity, for a devastavit, without having obtained a judgment at law
against the personal representative, see 3 B. M., 217 j> 7 Id., 376; 3 Met., 63.

3. Formerly, a judgment against a personal representative, to be levied of assets, es-
topped him, in an action for a devastavit, from denying the reception of assets, and the
plaintiff was entitled to a personal judgment against him, though he had received no
assets or had duly administered them (Hardin, 406-7; 6 J.J. M., 230) ; but under the
G. S., ch. 39, art. 2, §31, substantially re-enacting { 1 of an act of 181 1 (M. <5r* B., 672),
the plaintiff in an action against a personal representative is only entitled to a judgment
to be levied of assets, though the defendant make default or confess assets or file a false
plea with reference thereto (2 J. J. M., 208-09); and the judgment, though it raises a
presumption of assets received, does not estop the defendants from showing that none
were received, or that they were duly administered. 1 J. J. Af., 298; 8 B. M., &$.

(c) Under chapter 81, f 8 of the General Statutes, the Commonwealth must be the
obligee in all bonds for the performance of any fiducial or public office ; and, according to
the common law, only the Commonwealth has" a legal right of action thereon; but ch. 48,
art. 1, } 10, authorizes an action on a guardian's bond to be brought in the name of the
Commonwealth by the ward as relator; and ch. 81, §9, declares that, for any breach of a
fiducial or official bond, an action in the name of the Commonwealth may be brought by
the person injured, for his benefit and at his costs.

But \ 18 of the Code declares that «' every action must be prosecuted in the name of
the real party in interest, except as is provided in §21 ; " and §21 declares, inter alia, that
"a person with whom or in whose name a contract is made for the benefit of another
. . . may bring an action without joining with him the person fbr whose benefit it is
prosecuted;" and these provisions were contained in the Codes of 1851 and 1854.

In Commonwealth for Harris v. Teal, <5rV., 14 B. M., 29, it was held that an action on
a constable's bond, fer an official defalcation, could be maintained in the name of the
Commonwealth for the use of the person injured ; whilst in Lane v. Kasey, 1 Met., 410, it
was held that, on a warehouseman's bond to the Commonwealth, binding him to pay to
the owners of tobacco moneys arising from the sales thereof, an owner of tobacco could
we for a breach without making the Commonwealth a party; and in Neely v. Merritt, 9
Busk, 346, which was an action on an executor's bond, the court, without deciding whether
the Commonwealth was a necessary party or not, impliedly conceded that the Common-
wealth could not have maintained the action except in conjunction with the real parties



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522 FORMS.

in interest ; and it is settled, as a general rule, that a plaintiff can not maintain an action
on an equitable right of action, without making the holder of the legal right of action a
party as co-plaintiff or defendant. See note I to J 18.

In suing on a fiducial or official bond, it seems to be certainly safe, if not necessary, to
join the Commonwealth and the real party in interest as plaintiffs in the action.

(d) See Code, \ 122.

(e) See G. S. t eh. 39, art. 2, §$9, 10.
(/) See 18 B. Af. t 210; 8 Bush, 237.

\g) A description of the property constituting assets is not necessary. 18 B. Af. t 208.

b. Distributee's petition against administrator and his sureties (a).

Lee Circuit Court.
A. B., Distributee of C. D., and the Commonwealth of

Kentucky, suing for the benefit of A. B., Plaintiffs,

against [ Petition.

E. F., administrator of C. D., and G. H. and I. J.,

his sureties Defendants.

The plaintiffs, A. B., and the Commonwealth of Kentucky, suing for the benefit of
said A. B., say that the defendant, E. F., having been appointed administrator of the
estate of C. D., by an order duly made (b) by the county court of Lee County, he, as



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 69 of 142)