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a net profit of dollars, but that, owing to this plaintiff's inability, caused by said

attachment, to comply with said contract, the said S. T. rescinded it, as he had a right
to do, and thus this plaintiff lost dollars ; that he expended dollars in pre-
paring to do said work [state how expended, as, in traveling expenses, engaging hands,
&c], which he lost by reason of his inability to comply with said contract with S. T. ;
that his aforesaid horses, whilst in possession of said sheriff, were so negligently and

poorly attended to and fed that, by reason thereof, one of them, which was worth

dollars when said attachment was levied, died days after its return to this plaintiff,

and the keeping of it after its return cost the plaintiff dollars; and that the plaintiff

paid [or agreed to pay] dollars to his aforesaid attorney as a fee for his services

in resisting said attachment, and that it was a reasonable fee; and that this plaintiff's

taxed costs in said attachment case are dollars.

Wherefore the plaintiff asks for judgment against the defendant for dollars

damages [not to exceed the amount of S. T.'s claim] and costs [and any other relief the
plaintiff may appear entitled to].

(Verification as in Form I.) E. F., Attorney.

(a) As to this form see note 3 (1), ante, page 90. If the attachment has been dismissed
by the attaching plaintiff, or dismissed by the court without prejudice, the defendant can
maintain an action on the attachment-bond without alleging either malice or want of
probable cause, an allegation that the attachment was wrongfully obtained being suf-
ficient, and casting on the defendant the burthen of alleging and proving the existence of
aground authorizing the attachment; and the defendant's allegation of probable cause
constitutes no defence. Pettit and Owen v. Mercer, SB. M., 51 ; Cooper, cVv., v. /////V
adm'x, 3 Bush, 219. But a judgment discharging a contested attachment raises a con-
clusive presumption that it was wrongfully obtained (I Met., 241-42); and, consequently,
in an action on the bond, an allegation that the attachment was wrongfully obtained is
unnecessary. See 3d paragraph of note 6, ante, page 151.

(b) As to the necessity of this averment, see Code, § 198, and 7 Bush, 131.
\c) See note (a) 2 to Form 17, a.

(d) See Code, $266, 267.

b. Petition on an injunction-bond given in an action to enjoin proceedings on a judgment {a).
(Caption as in Form I )

The plaintiff, A. B., says that, in an action brought by him in the Menifee circuit
court against one E. F. for a tract of land in said county of Menifee, and for dol-
lars for the rents and profits thereof, a judgment was duly rendered (b) by said court on

the .... day of in favor of this plaintiff against said E. F., for said land and for

dollars for the rents and profits thereof, and for this plaintiff's costs in said

action, which amounted to dollars, as appears of record in said court ; that, in an

action brought against this plaintiff by said E. F., fn said Menifee circuit court, for
an injunction to stay proceedings on said judgment, an order of said court was duly

made (b) on the .... day of , by said court [or — by the clerk of said court — or by

the circuit judge of the judicial district — or by the county judge of Menifee

county — or by two justices of the peace of Menifee county] granting an injunction re-
straining this plaintiff from proceeding on said judgment, whereupon the defendant,

C. D., as surety for said E. F., executed a bond dated the day of , in the office

of the clerk of said court, which was accepted by said clerk, and is in his office, and on



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PETITIONS ON WRITTEN CONTRACTS. 529



file in the last named action [and an attested copy of which is filed herewith (<r)], and in
which said C. D. covenanted that [state the material stipulations of the bond] ; that, there-
upon, on the .... day of , the said clerk issued the said order of injunction which

had been granted upon notice to this plaintiff of the time and place of applying therefor
[or — a copy of which was served on this plaintiff by the sheriff of Menifee county on the
. day of ], and by which this plaintiff was restrained and prevented from pro-
ceeding on said judgment until the .... day of , when said Menifee circuit court, as

appears of record in said court, by an order duly made (b), discharged said injunction
and dismissed said action of said £. F. [or — dismissed said action of said £. F., having
discharged said injunction by an order duly made on the .... day of ], and ad-
judged that said E. F. pay to this plaintiff dollars, being per cent, dam-
ages on the money to which the plaintiff was entitled under the aforesaid judgment in

his action against E. F. ; and dollars damages for the rent of said land whilst

said injunction was in force, and the costs of this plaintiff in said E. F.'s action against

him, which amounted to dollars [or follow the language of the judgment rendered

on the dismissal of E. F.'s action]; and that neither the defendant nor the said E. F. has
paid any part of the money adjudged to this plaintiff in either of said actions, and that
both of said judgments are in full force and effect.

Wherefore the plaintiff asks for a judgment against the defendant for, I, dollars

[stating the aggregate amount of the judgment for damages and for costs in the case of A.
B. against E. F.] and interest thereon from [the time when said judgment was rendered] ;

and, 2, for dollars [stating the aggregate amount of the judgment for the per

cent, damages, and of the judgment for rent pending the injunction, and of the taxed
costs, in case of E. F. against A. B.] and interest thereon from [the time of rendering the
last named judgment], [and for any other relief the plaintiff may appear entitled to].
(Verification as in Form 1.) G. H., Attorney.

(a) As to this form, see Code, H 273, 278 to 283, 285, and 293 to 295, and notes thereto.

(b) See Code, £ 122.

\e) See note {a) 2 to Form 17, a.

c. Petition on an injunction-bond given in an action to enjoin the cutting of timber and removal
of cut timber, [or any act except proceeding on a judg?neni\ (a).

(Caption as in Form I.)

The plaintiff, A. B., says that, being the owner and in possession of a tract of land in
Lee county [or — state otherwise the plaintiff's right to the timber], on which he had cut,
without removing, a quantity of walnut logs [or — timber], and on which he proposed
to cut other walnut logs [or — timber], one E. F., claiming the right to the timber on
said land, brought an action in the Lee circuit court against this plaintiff for an in-
junction restraining him from cutting any timber on said land and from removing the

logs [or — timber] which he had cut thereon ; that, on the day of an order of

said court was duly made (b) by said court [or — by the clerk of said court, or — by the

circuit judge of the judicial district, or— by the county judge of Lee county,

or — by two justices of the peace of Lee county], granting an injunction restraining this
plaintiff from removing the logs [or — timber] cut by him as aforesaid and from cutting
any timber on said land, whereupon the defendant, C. D., as surety for said E. F., exe-
cuted a bond dated the .... day of , in the office of the clerk of said court, which was

accepted by said clerk and is in his office and on file in said action [and an attested copy
of which is filed herewith (r)], and in which the said C. D. covenanted that [state the

stipulations of the bond]; that, thereupon, on the .... day of , the said clerk

issued said order of injunction, which had been granted on notice to this plaintiff of the
time and place when it would be applied for [or — a copy of which was served on this
plaintiff by the sheriff of Lee county on the day of ], and whereby this plain.



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530 FORMS.

tiff was restrained and prevented from removing any of the logs [or — timber] cut by him

as aforesaid, and from cutting any timber on said land, until the .... day of ,

when said court, as appears of record therein, by an order duly made (b) discharged said
injunction and dismissed said action [or — dismissed said action, having discharged said

injunction by an order duly made on the .... day of ], and adjudged that said E.

F. pay to this plaintiff his costs in said action, which amounted to dollars, no part

of which has been paid by the defendant or said E. F. ; and that [state the damages sus-
tained by the plaintiff; as, by deterioration in the value of the property, or loss by pre-
vention from performing a contract (</)] [and that this plaintiff paid (or agreed to pay) to

an attorney whom he employed to procure a discharge of said injunction a fee of

dollars, which was a reasonable fee (;)].

Wherefore the plaintiff asks for a judgment against the defendant for dollars

damages and costs [and any other relief the plaintiff may appear entitled to].

(Verification as in Form I.) G. H., Attorney.

(a) As to this form, see Code, §} 273, 278 to 283, 293, and 294, and notes thereto, and
note {b) to § 295.

(b) See Code, \ 122.

(c) See note (a) 2 to Form 17, a.

(d) See Form a, ante, page 527, and 8 B. M., 52; 18 Id., 846, and 6 Busk, 259, which
relate to actions on attachment-bonds; but there seems to be no difference, as to this
matter, between attachment-bonds and injunction-bonds.

(e) See Doe, <5rV., v. Perkins, SB. M., 198; Burgen v. Sharer, 14 Id., 497; Trapnallv.
McAfee, 3 Met., 34; Shultz v. Morrison, &c, Id., 98; New National Turnpike Co. v. Du-
laney, <5rV., 86 Ky., 516.

d. Petition on bail-bond given under \ 163 of Code (a).
(Caption as in Form 1.)

The plaintiff, A. B., says that, in an action brought by him in the Lee circuit court

against one £. F., for dollars due from him to the plaintiff, with interest from the

.... day of , the clerk of said court, on the .... day of , duly made an

order (b) stating the names of the parties to said action and the court in which it was
brought, and the amount of the plaintiff's claim specified in the affidavit on which said

order was issued [namely, dollars with interest as aforesaid] and addressed to the

sheriff of Lee county, and requiring him to arrest said E. F. and hold him to bail in the
sum of the said claim of the plaintiff, with the probable costs of said action, not ex-
ceeding twenty-five dollars, and make return of said order on the .... day of ,

with the bail-bond, if any should be taken ; that, on the .... day of , said sheriff

arrested said E. F., in obedience to said order, and delivered to him a copy thereof, and

on the .... day of , the said E. F., as principal, and the defendant, C. D., as his

surety, executed, in the presence of said sheriff, and delivered to him, a bond to the
plaintiff, of the date last mentioned, [which is in said sheriff's possession (c) — or] which
is in possession of the clerk of said court and on file in the aforesaid action [and an
attested copy of which is filed herewith (d)], and in which the said C. D. and E. F.
covenanted that, if judgment should be rendered against said E. F. in said action, he
would render himself amenable to the process of the court thereupon, whereupon the
said E. F. was discharged from arrest ; that, as appears of record in said court, on the

.... day of , a judgment was duly rendered (b) by said court in said action in favor

of the plaintiff against said E. F. for dollars [and interest from the .... day of

until paid] and costs which amounted to dollars ; and on the .... day of

, the said E. F., not having surrendered himself, nor having been surrendered by

said C. D. to the sheriff of said county, and said order of arrest not having been vacated,
a writ of capias ad satisfaciendum was issued from said court, addressed to the sheriff of
said county, and commanding him to take the said E. F., if found in said county, and



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PETITIONS ON WRITTEN CONTRACTS. 53 1

have his body before the judge of said court on the .... day of to satisfy the

aforesaid judgment, which was described in said writ, and have then there said writ,

which was delivered to said sheriff on the .... day of (e), and by him returned on

the .... day of (/), with an indorsement thereon by said sheriff, stating that " the

within named E. F. is not found within my county ;" and that said judgment has not
been to any extent paid or satisfied by the defendant or the said E. F., and is in full force
and effect.

Wherefore the plaintiff asks for judgment against the defendant for dollars

damages and costs [and any other relief the plaintiff may appear entitled to].

(Verification as in Form I.) G. H., Attorney.

{a) As to this form, see Code, #153 to 158, 163, and 168 to 173, and notes thereto;
and G. S., ch. 38, art. 3.

(b) See Code, } 122.

(V) Though the Code (J 163) requires the sheriff to return the bonds to the clerk's
office, his failure to do so does not affect the rights of the obligee. 2 Met., 492; and see
79 Ky., 468-69.

(</) See note (a) 2 to Form 17, a.

(e) The petition should show that the capias was delivered to the sheriff " within
twenty days after it might have been issued on the judgment." Code, {171.

(/) The fact that the return of " not found " is made before the return-day of the writ
does not release the bail. 2 Met., 492.

e. Claimant s petition on indemnifying-bond given under \ 641 of Code [a).
(Caption as in Form I.)

The plakmiff, A. B., says that, in an action brought by one E. F. against one G. H. in
the Lee circuit court a judgment was duly rendered (b) by said court, on the .... day of

, .in favor of said E. F. against said G. H. for dollars, [and interest thereon

from the .... day of , until paid], and costs which amounted to dollars ;

that, on the .... day of , a writ of fieri facias was issued from said court, ad-
dressed to the sheriff of Lee county and commanding him that, of the estate of said E.
F. he should cause to be made the amount of said judgment, which was set forth in said

writ, and to return said writ on the .... day of , which writ, on the .... day of

, was delivered to the said sheriff by said E. F., with directions to levy it [or —

which, on the .... day of , was levied by said sheriff] on [describe the property] ;

and said sheriff, doubting whether said property was subject to said execution, required
said E. F. to furnish an indemnifying-bond, whereupon the defendant, C. D., as surety'
for said E. F. [or — the said E. F., as principal, and the defendant, C. D., as his surety],
executed a bond of that date [or — state the true date], which was approved by said sheriff,
and which is [in his possession (c), or—] in possession of the clerk of said court and on
file in said action [and an attested copy of which is filed herewith (d)], and by which the
said obligor [or — obligors] covenanted to indemnify said sheriff against the damages he
might sustain in consequence of the seizure or sale of said property, and to pay to any
claimant thereof the damages he might sustain in consequence of the seizure or sale
thereof; that said sheriff, on the .... day of , levied said execution on said prop-
erty, and on the .... day of , sold it [or — on the .... day of , sold said prop-
erty] in pursuance of said execution and to satisfy the same; and that, at the time of
said seizure and sale, the plaintiff was the legal [or — equitable {e)] owner of said property,
which was of fhe value of dollars.

Wherefore the plaintiff asks for judgment against the detendant for dollars

damages and costs [and any other relief the plaintiff may appear entitled to].

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

[a) As to this form, see Code, §J 641 and 643, and notes thereto.

(b) See Code, J 122



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532 FORMS.

(c) Though the Code (§641) requires the sheriff to return the writ to the circuit court,
his failure to do so does not affect the rights of the claimant. 79 AJ\, 468-69 ; and see 2
Met., 492.

(d) See note (a) 2 to Form 17, a.

(e) The bond protects owners of the equitable as well as the legal title (see note [b) t to
J 643) ; but, though an equitable owner can maintain an action on the bond, it would seem
that he should make the legal owner a party as co-plaintiff, or as defendant if he refuse to
join as plaintiff.

f. Petition on a supersedeas-bond (a) .
(Caption as in Form I.)

The plaintiff, A. B., says that, in an action brought by him in the Lee circuit court
against one E. F. for a traot of land situate in Lee county [claimed by the plaintiff as

belonging to him in fee simple], and for dollars for the rents and profits thereof, a

judgment was duly rendered (b) by said court at its term, to-wit, on the day

of , in favor of the plaintiff against said E. F. for said land, and for dollars

for rents and profits, and costs amounting to dollars, as appears of record in said

court ; that during the said term of said court, to-wit, on the day of , the said

E. F. moved for, and the said court granted him, an appeal to the Court of Appeals from
said judgment; and on the day of , the defendant, C. D., as surety for said

E. F., executed before the clerk of the Lee circuit court a bond of that date [or — dated

the .... day of ], which was approved by said clerk and is in his possession [and

an attested copy of which is filed herewith (c)] 9 [or — that, on the .... day of , and

after said term expired, the said E. F. filed in the office of the clerk of the Court of Appeals

an attested copy of said judgment ; and, on the .... day of , the defendant, C. D.,

as surety for said E. F., executed before said clerk a bond of that date {or— dated the. . . .

day of ), which was approved by said clerk and is in his possession, an attested

copy of which is filed herewith], by which the defendant covenanted that the said E. F.
should pay to the plaintiff all costs and damages that should be adjudged against said E.

F. on said appeal, and would satisfy and perform the said judgment, if it should be
affirmed, and ail rents of, or damage to, property, during the pendency of said appeal, of
which the plaintiff should be kept out of possession by reason of said appeal ; that, there-
upon, on the .... day of , an order was duly made [b) and issued (d) by the clerk

of said circuit court (e) [or — by the clerk of the Court of Appeals], commanding the plain-
tiff and all others to stay proceedings on said judgment, of which the plaintiff received

notice on the .... day of (/) ; and that, on the .... day of , the Court of

Appeals issued a mandate upon said appeal, affirming said judgment, and awarded and ad-
judged to the plaintiff dollars damages, and the plaintiff's costs on said appeal

amounting to dollars ; and the plaintiff says —

1. That by said order of supersedeas he was prevented from proceeding by a writ of
fieri facias upon the aforesaid judgment of the circuit court, and that no part thereof has
been paid or satisfied by the defendant or the said E. F.

2. That by said order of supersedeas the plaintiff was prevented from proceeding by
a writ of habere facias possessionem on said judgment of the circuit court, and was kept out
of possession of said land from [state the date of issuing the order of supersedeas] until
[state the date of issuing the mandate of the Court of Appeals], and that the rents of said
land during that period were of the value of dollars ; and

3. That, during said last named period, the said E. F. committed waste on said land by
[state the acts constituting waste, and the pecuniary damage to the plaintiff].

Wherefore the plaintiff asks for a judgment against the defendant for, 1, dollars

[state the aggregate amount of the circuit court judgment for rents and profits and

costs] and interest thereon from [the date of said judgment]; 2, for dollars [state

the aggregate amount of the damages and costs awarded by the Court of Appeals] and
interest thereon from [the date of issuing the mandate] ; 3, for dollars damages,



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PETITIONS ON UNWRITTEN CONTRACTS. 533

for rents of said land whilst the plaintiff was kept oat of possession by said supersedeas;

and, 4, for dollars damages, for waste committed by said E. F. y as aforesaid [and

for j»ny other relief the plaintiff may appear entitled to].

% r erification as in Form I.) G. H., Attorney.

(a) As to this Form, see Code, §?734f 747, 748, 749, 752, 760, and 764, and notes
thereto ; and Collins, <&V., v. Blackburn, 14 B. M., 252.

(b) See Code, { 122.

(O See note {a) 2 to Form 17, a.

(d) See Code, §747, and 12 Bush, 1 29-30.

(e) Though the circuit court may have granted an appeal, its clerk has no power to
issue a supersedeas if the appellant has failed to execute a supersedeas-bond before him
within the lime allowed by \ 738 for filing a copy of the record in the office of the appellate
clerk ; but the latter clerk may do so. Code, \ 749.

{/) I find nothing in tne Code as to giving notice of the issuing of an order of super-
sedeas, though it is the practice of some clerks to deliver to the sheriff a copy of the order
for service on the appellee ; and the Court of Appeals will presume, at least prima facie,
from the granting of an appeal and the execution of a supersede as-bond, that the appellee
had been notified of the supersedeas. Whitehead v. Booram, 7 Bush, 339.

B. Petitions in actions on express contracts not in writing (a).

1 8. Petition on a promise founded on a good consideration.

(Caption as in Form 1.)

The plaintiff, A. B., says that, on the day of , he being the son [or —

grandson, or — son-in-law] of the defendant, C. D., he, in consideration thereof (b),

promised to pay to the plaintiff dollars, six months after said date, but has not

paid any part thereof nor any interest thereon.

Wherefore the plaintiff asks for judgment against the defendant for said money and
interest thereon, from [the date when the money fell due] and costs [and any other relief
the plaintiff may appear entitled to].

(Verification as in Form 1.) E. F., Attorney.

(a) 1. In stating a cause of action on an express contract, the only distinction between
petitions on written and petitions on unwritten contracts is that the latter must, in every
case, show a good or valuable consideration for the contract, which is generally unneces-
sary in the former ; and, consequently, such of the foregoing forms as relate to contracts
containing conditions precedent, and such other of said forms as state the consideration
of the contract sued on, apply to petitions on unwritten contracts: and the averments of
all the foregoing forms as to notice of an event, as to a request to deliver property, and,
with a few statutory exceptions, as to a request to pay money, and their prayers for relief —
whether for a judgment for money and interest thereon, or for damages— and the notes to
said forms with reference to those matters, apply to petitions on express, unwritten con-
tracts.

2. A petition which fails to show that the contract was in writing must state the con-
sideration of it, as, in the absence of such showing, the court will presume that the con-
tract was verbal. 4 Mel,, 373.

(6) 4 Bibb, 187; 4 Litt., 208; 4 Mon., 445; 7 B. M., 582; 3 Mel., 362-63; 8 Bush,
6. Collateral relationship, however, such as that between brothers or uncle and nephew,
does not constitute a good consideration. 1 Dana, 107; 7 B. M., 214; 11 Id., 46. But
an agreement between several collateral relations for the benefit of one, having been exe-
cuted by some or one of the agreeing parties, is binding on all. 7 B. A/., 214-15; 11 id.,
47; 3^/*., 589.

19. Petition on a promise to pay money in consideration of a moral

obligation (a).

(Caption as in Form I.)

The plaintiff, A. B., says that the defendant, C. D., having been indebted to the
plaintiff in the sum of dollars on his note to the plaintiff [or — on an account for



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534 FORMS.

merchandise sold and delivered to him by the plaintiff, or — having been famished by the

plaintiff with money and merchandise to the amount and of the value of dollars,

whilst the defendant was an infant], did, in consideration thereof, on the .... day of
, and after the defendant had been discharged from said indebtedness by a judg-
ment in bankruptcy [or — by limitation, or — and after the defendant became twenty-one



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