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years of agej promise to the plaintiff [or — to the plaintiff's agent (b), L. M.] to pay to the

plaintiff dollars [as soon as the defendant should be able to do so ; and that the

defendant is able (c), (and has been able since the .... day of , ) to pay said money,

which the plaintiff requested him to do (</), on the .... day of ]; and that the

defendant has not paid any part of said money nor any interest thereon.

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

and interest thereon [from the date of the promise, if it was unconditional ; or — from the
date of the request to pay, if the promise was to pay when able and there was such
request], and costs [and any other relief the plaintiff may appear entitled to].

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

(a) I. As to the sufficiency of the moral consideration it seems sufficient to refer to 6
Mon., 285.

2. Section 120 of the Code does not require the plaintiff to file the note or account, as
the action is, and must be, founded, not thereon, but on the new promise, proof of the
note or account being admissible only as evidence of the moral consideration (Carson v.
Osborn, 10 B. M., 155, and cases cited ; 6 Bush, 378 ; 8 Id., 274) ; but, if the new promise
be made after the commencement, but before the expiration, of the period of limitation, the
plaintiff must sue on the original contract, the only effect of the new promise being "to
cut off and exclude from the period of limitation the time that had elapsed when the new
promise was made." 14 Bus A, 774, and cases cited.

(6) See 9 Bush, 276.

(r) As to this averment see cases cited in 2d paragraph of note (1), ante, page 63.

(d) Averment of a request to pay is not necessary, except fcr the purpose of entitling
the plaintiff to interest which accrued before the commencement of the action. See,
ante, note VI, page 73; note (2), page 78; and 86 Ky., 675-76.

20. Petition on promise to pay, at a specified time, an agreed price for
specified property or services (a).

(Caption as in Form 1.)

The plaintiff, A. B., says that, on the .... day of , in consideration of a horse

[or — five head of cattle] sold and delivered by him to [or — of the building by him of a

house for] the defendant, C. D., he promised to pay dollars to the plaintiff

months after said date, but has not paid any part of said money nor any interest thereon.

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

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

(a) 1. According to common law, which has not been changed by the Code except in
actions on accounts (see note (b) to Form 21), a particular description of the property or
services or other thing constituting an executed consideration is not necessary ; but an aver-
ment that the defendant, " being indebted to the plaintiff in a certain sum of money, in
consideration thereof," promised, &c, or that the defendant, "for a Valuable consider-
ation," promised, &c, without stating on what the debt was founded or what the con-
sideration was, is insufficient; but it is sufficient to allege that, the defendant, being
indebted to the plaintiff in a certain sum of money, in consideration of the plaintiff's
agreement to give the defendant an extension for a specified time, he promised, &c, as
the debt is alleged, not as the consideration of the promise, but, only as an inducement
to that which was the consideration. See note 2, ante, page 62.

2. Though, from an express promise to pay for goods sold and delivered, or services
rendered, to the defendant, his request to furnish them is implied by law, the common law



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PETITIONS ON UNWRITTEN CONTRACTS. 535

required the plaintiff, in an action on such promise, to allege, though it did not require
him to prove, that the goods were sold, or the services rendered, "at the special instance
and request of the defendant." See I Saunders, 264, note (1). But, though I have found
no decision on the question, it seems clear that such allegation is not necessary under the
Code, J 1 19 of which, indeed, forbids the allegation of facts implied by law. See note 6,
<*****, page 151.

21. Petition on an account, to recover agreed pices of goods ', without

an express agreement as to time of payment (a).

(Caption as in Form I.)

The plaintiff, A. B., says that, in consideration of goods sold and delivered by him to
the defendant, C. D., at divers times, as shown by the account dated the .... day of

, and filed herewith (b), the defendant promised to pay to the plaintiff the several

sums of money in said account mentioned, and amounting in the aggregate to dol-
lars, payment of which the plaintiff demanded of the defendant on the .... day of ;

but he has not paid any part of said money nor any interest thereon.

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

interest thereon from [the date of the demand] and costs [and any other relief the plaintiff
may appear entitled to].

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

(a) In such cases the common law forms alleged a promise to pay "when the defend*
ant should be thereunto requested" (2 CA. PI., 36) ; but, in Kentucky, that allegation is
not necessary and would not be proper, for it is settled that a promise to pay money,
without stating a time for payment, constitutes a debt in presenti (I Bibb, 396; I Mar.,
322; 5 Mon., 11 ; 1 J. J. M., 203 ; 12 B. Af., 62) ; and that an allegation of a request to
pay is necessary only for the purpose of entitling the plaintiff to interest which accrued
before the commencement of the action. See, ante, note VI, page 73 ; note (2), page 78;
and 86 Ky., 675-76, which was published after said notes wereelectrotyped.

(b) Code, f 120, concerning which see, ante, 3d paragraph of note {a), page 121, and
note III, page 70.

The common law, as has been shown (note (a) 1 to Form 20), does not require a de-
scription, in the plaintiff's declaration, of the property sold ; nor does it require the
plaintiff to file with his declaration, or to offer to file, a statement giving such description,
the rule as to profert applying only to contracts under seal, and matters of record ; but, if
the form of the declaration was so general as not to apprise the defendant of the nature,
character, and extent of the plaintiff's claim against him, he could, by motion, compel
the production of a bill of particulars. 4 Dana, 219.

22. Petition for breach of promise to marry (a).

(Caption as in Form I.).

The plaintiff, A. B., says that, on the day of , she was, and ever since has

been, unmarried, and that, on said day, she and the defendant, C. D., mutually promised

to marry each other on the .... day of , at [stating the place agreed en] ;

and that she was then and there ready and willing to marry him, but that he then and
there refused to marry her, and has ever since neglected and refused to do so [or — but
that he did not attend then and there, and has ever since neglected and refused to offer to

marry her] [or — but that, on the .... day of , (stating a time prior to that agreed

on for marrying), he announced to her that he would not marry her, and has ever since
neglected and refused to offer to do so].

[Or, after the words "on said day" — she and the defendant, C. D., mutually promised
to marry each other, and that, on the .... day of she announced to him her readi-
ness and willingness to marry him on (allowing him reasonable time) at her residence
{or — designating other reasonable place), and that she was then and there ready and wil-
ling to marry him, but that he did not attend then and there, and has ever since neglected
and refused to offer to marry her] [or — that, on the .... day of , she announced



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536 FORMS.

to the plaintiff her readiness and willingness to marry him at snch reasonable time aad
place as he might designate, but that he refused to designate any time or place therefor,
and has ever since neglected and refused to offer to marry her],

[Or, after the words " on said day " — she and the defendant, C. D., mutually promised
to marry each other when either should be thereunto requested by the other ; and that,

on the .... day of , she requested him to marry her on the .... day of

(allowing him reasonable time), at her residence (or — designating other reasonable place.,
and that she was then and there ready and willing to marry him, but that he did not
attend then and there, and has ever since neglected and refused to offer to marry her].

Wherefore the plaintiff asks for judgment against the defendant for dollars

damages and costs.

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

(a) As to this form, see note 4, ante, page 68, and especially the cases cited in the last
paragraph of that note.

A female plaintiff can not recover damages for her seduction by the defendant See
note 5, ante, page 95.

C. Petitions in actions on implied contracts (a).

23. Petition of indorsee of a foreign bill of exchange against the ac-
ceptor, drawee, and second indorser, after protest for non-pay-
ment.



A. B. f Plaintiff, \ Shelby Circuit Court.

against \ Petition.

C. D., E. F., and G. H., (b) Defendants, J

The plaintiff, A. B., says that on the .... day of , at New Orleans, in the State

of Louisiana, one I. J. drew a bill of exchange, of the date aforesaid, directed to the
defendant, C. D., at Louisville, in the State of Kentucky, and requesting him to pay

dollars to the order of the defendant, E. F., months [or— days] thereafter,

which bill was accepted by said C. D., and, with the indorsements thereon hereinafter
mentioned, is filed herewith ; that the said E. F. indorsed and delivered said bill to the
defendant, G. H., who, afterward and before its maturity (c), indorsed and delivered it

to the plaintiff; that, on the .... day of , said bill was presented to said C. D. for

payment, at said city of Louisville, by L. M., a notary public in and for Jefferson county,
and payment thereof having been refused by said C. D., the said notary, on the last

named day, at the cost of dollars to the plaintiff, protested it for non-payment, [a

certified copy of which protest, under the said L. M.'s notarial seal is filed («/) herewith,]
and on the same day [or — on the next following day(*), or — said protest having been
made on Saturday, on the next following (/) Monday,] the said notary [or— the plaintiff]
notified the said E. F., in person (g), [or — by a writing left at his residence (or— at his
place of business) in said city of Louisville, he being absent from said city, or — from his
residence in said city, or — from his place of business in said city (A),] and mailed notice to
said G. H., at Jeffersonville, Indiana, where he resided, [or — on the same day, or— on
the next following day, or — said protest having been made on Saturday, on the next fol-
lowing Monday, the said notary mailed notices to the plaintiff (*) at Shelby ville, Ken-
tucky, where he resided, which were received by the plaintiff on the .... day of ,

and on that day (or — on the next following (J) day) the plaintiff notified the said E. F., ia
person, and mailed notice to said G. H. at Jeffersonville, Indiana, where he resided], that
payment of said bill had been refused by said C. D., and that it had been protested for
non-payment (k) ; and the plaintiff further says that neither the said I. J. nor either of the
defendants has paid any part of said bill or any interest thereon or any part of said
notarial costs.



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PETITIONS ON IMPLIED CONTRACTS. 537



Wherefore the plaintiff asks for judgment against the defendants for dollars

and interest (I) thereon [from the date of maturity] and dollars, the amount of said

notarial costs, and his costs of suit [and any other relief he may appear entitled to].

(No verification necessary .) O. T., Attorney.

(a) For a reference to several decisions as to what constitutes an implied contract, see
note I, ante, page 80.

(b) At common law, the parties to a bill of exchange could not be sued jointly ; and
under the act of 1798 {M. 6j° B., 249), if more than one was sued, all must have been
joined as defendants (2 Litt., 17) j but see Code, \ 26.

(c) In favor of the holder of a bill, to whom it has been transferred for a valuable con-
sideration, in the regular course of business and before maturity, there is a conclusive
presumption against the antecedent parties of a sufficient consideration ; and it has been
held to be unnecessary for the plaintiff to make any allegation as to the consideration paid
by him, or to allege that the bill was transferred to him in the regular course of business,
or even that it was transferred to him before maturity, the facts that it was not trans-
ferred to him for value, &c, coupled with the want of consideration to an antecedent
party, constituting matters of defence. See note II, 1, ante, page 80. In this connection,
see Franks <5rV., v. Quasi, <SrV., 86 Ky., 649, reported since said note was electro typed.

(d) It is the duty of the notary who protests a bill to "give or send notice of the dis-
honor" to parties to whom notice is requisite (if their places of residence are known to
him : see note (h) to this form) ; and to state the facts as to such notices, in the protest, a
certified copy of which, under his seal, is prima facie evidence of the dishonor, and that
notices were given as stated by him. G. S., ch. 79, $3 and 5. Section 120 of the Code
does not require the plaintiff to file a copy of the protest, but he has a right to file it as
an exhibit, under } 128.

It seems proper to suggest, 1, that the giving of notice of protest by a notary is suf-
ficient, independently of any statute (1 Litt., 195-96) ; 2, that, though said chapter 79
declares that a notarial protest, under seal % shall be evidence of the dishonor of the bill
and of the giving of notices, according to the law merchant a notarial protest, even in
Kentucky (7 Mon., $56-57), of a foreign bill is evidence of its dishonor, though not
under seal {Bank of Ky. v. Pursley, 3 A/on., 238; Huffaker v. National Bank, §Y., 12
Bush, 293) ; and, 3, that $ 3 to 7 of said chapter 79 were taken from an act of January
16, 1864 (Myers' Supplement, 354) ; and that a comparison of said sections with said act
shows that the words " in the first section of this act " were inadvertently used in § 5 of
chapter 79, instead of the words "in the third section of this chapter.*'

(e) See 3 Mar., 265, 505; I Litt., 277; 17 B. M., 664.
(/) See 3 Dana, 127.

(^) Such notice may be given verbally. 2 Litt., 44.

{k) To a drawer or indorser, who resides in the town where a bill is protested, notice
should be given in person; or in writing left at his residence or place of business, if
known to the notary. Bank of Ky. v. Duncan, 4 Bush, 297 ; Todd v. Edwards) 7 Id., 93 ;
Mulkolland& Bra's v. Samuels, 8 Id., 63 ; Neal & Co. v. Taylor, 9 Id., 380.
(1) See 7 Bush, 94; 9 Id., 384.
(J) See 3 Dana, 127.

(k) As to stating facts showing that due notice was given, instead of averring " of
which the defendant had notice" or "of which the defendants had due notice," see ncte
2, ante, page 82. Section 122, I believe, contains the only provision in the Code which
gives any effect to the word "duly" in pleading.

(/; Damages are not recoverable except on bills drawn " on persons out of the United
States." G. S., ch. 23, { 10.

24. Petition of indorsee of a domestic bill of exchange against the
acceptor, drawer, and drawee, after refusal of payment by the
acceptor fa).

(Caption as in Form 23.)

The plaintiff, A. B., says that, on the .... day of , at Shelbyville, Kentucky,

the defendant, E. F., drew a bill of exchange, of the date aforesaid, addressed to the

defendant, C. D., at Louisville, Kentucky, and requesting him to pay dollars to

the order of the defendant, G. H., months [or — days] thereafter, which bill was

accepted by said C. D., and, with the indorsement thereon hereinafter mentioned, is filed



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538 FORMS.

herewith ; that the said G. H., before the maturity of said bill, indorsed and delivered it

to the plaintiff; that, on the .... day of the plaintiff [or — the plaintiff's authorized

agent, I. J.] presented said bill to said C. D., at Louisville, Kentucky, and requested
payment thereof, which was refused ; and that on the same day [or — on the next following
day, or — said presentment and refusal having been made on Saturday, on the next following
Monday] the plaintiff [or — the plaintiff's said agent] notified the said G. H. in person
[or — by a writing left at his residence, or — at his place of business, in said city of Louis-
ville, he being absent from said city, or — from his residence in said city, or — from said

place of business in said city] that, on the said .... day of , payment of said bill

was demanded of, and refused by, said C. D. ; and the plaintiff further says that nothing
has been paid on said bill by either of the defendants.

Wherefore the plaintiff asks for judgment against the defendants for dollars and

interest thereon from the [date of maturity] and costs [and any other relief he may appear
entitled to].

(No verification necessary.) S. T., Attorney.

{a) i. As to the consideration and the time for giving notice of the dishonor of a
domestic bill, and as to giving such notice to the drawer or indorser in person, or by a
writing left at his residence or place of business or sent by mail, see cases cited in notes
to Form 23, the rules applicable to foreign and inland bills being the same as to those
matters.

2. "According to the mercantile law, a protest of a domestic bill is superfluous and
unauthoritative, and, therefore, no proof of the alleged dishonor of the bill." 2 B. M.,
262.

But 84 of an act of 1798 (M. cV £., 250), without making it necessary (2 Bibb, 301; 7
A/on., 579-80), authorized the holder of a domestic bill, "for the sum of five pounds and
upwards," to have it protested by a notary for non-acceptance or non-payment: and the
decision in Trabue v. Sayre, 1 Bush, 129, is authority for holding that the notarial protest,
under seal, of any Kentucky domestic bill is authorized by ch. 22, JJ11 and 12 of the
General Statutes (which are substantially the same as ch. 22, JJ 11 and 12 of the Revised
Statutes) ; J 11 declaring that "bills, drafts, or checks, payable in bank-notes or currency
or other funds, wherever drawn or payable, shall be deemed negotiable and treated in all
respects as if drawn for money, except as to the value of the currency in which they are
payable;" and §12 declaring that "the protest of a notary public, under his seal, of the
non-acceptance or non-payment of a bill shall he prima facie evidence. of its dishonor."

But, as was said in Young, McDowell «Sr» Co, v. Bennett, &*c, 7 Bush, 474, the protest
of a Kentucky domestic bill is not necessary : its holder has the right to proceed according
to the mercantile law and to declare on the bill as in Form 24; or, according to Trabue v.
Sayre, the right to have it protested and declare on it as in Form 23 ; and, even if the
protest should be unavailing as evidence, proof aliunde that a notary presented the bill for
payment, that payment was refused and that the drawer and indorser were notified of
those facts in due time, would be sufficient, just as it would be to prove a demand, &c,
by any other agent of the holder. See Young, McDowell & Co. v. Bennett, &*c, supra.

But the holder of a domestic bill drawn and payable in another State, who sues on
it here, must show that he proceeded according to the mercantile law, by declaring sub-
stantially as in Form 24, unless he show that he proceeded according to the statutory
law of such State. 7 Mon., 579-80; 2 B. M., 262.

25. Petition of payee against drawer of a domestic, unaccepted check
on a bank {a).

(Caption as in Form 1.)

The plaintiff, A. B., says that, on the ... . day of , at Louisville, Kentucky, the

defendant, C. D., drew a check, of the date aforesaid, which is filed herewith, directed to
one E. F., a private banker doing business in said city of Louisville, and requesting him
to pay to the plaintiff or his order five hundred dollars ; that, on that day [or— on the next
following day] the plaintiff [or — the plaintiff's agent, G. H.,] presented said check to said
E. F., at his bank in said city, during his usual banking hours, and requested payment
thereof, which was refused by said E. F.; that, on the last mentioned day, [or — on the



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PETITIONS ON IMPLIED CONTRACTS. 539

day next following the last mentioned day] the plaintiff [or — the plaintiff's said agent]

notified the defendant [state giving of notice as in Form 24] that, on said .... day of ,

payment of said check was demanded of, and refused by, said E. F.; and the plaintiff
further says that nothing has been paid on said check by the defendant or the said E. F.

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

interest thereon from [the date of the demand], and costs [and any other relief the plaintiff
may appear entitled to].

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

{a) 1. As to this form, see Cawem v. Browinski, 6 Bushy 457.

2. A check on a bank (which states no time for payment) differs from a bill of exchange,
in not requiring a presentment for acceptance or notice of non-acceptance, and in being
payable on demand without any days of grace. 17 B, M., 663; 2 Bush, 106; 8 Id.,
359-60. But, in other respects, such checks, domestic or foreign, stand on the same
footing as domestic or foreign bills of exchange. I Litt., 195; 2 /</., 299; 17 B. M.,
662 to 664 ; 6 Bush, 462.

Hence, 1, the holder of a check drawn in one State on a bank in another State, if it
be not paid, should have it protested and give notice of dishonor as if it were a foreign
bill of exchange, and should declare on it as in Form 23 ; and, 2, if the drawer of the
check and the bank reside in the same State ; and if, as was held and, as it seems to me,
correctly hejd in Trabue v. Sayre, the General Statutes authorize the protesting of a Ken-
tucky domestic bill of exchange, it authorizes the protesting of a Kentucky domestic
check ; and the holder of it has the option to proceed on it according to the commercial
law applicable to domestic bills and to declare on it as in Form 24, or to have it pro-
tested and declare on it as in Form 23. See note {a) 2, to Form 24.

26. Petition of payee against drawee of an unaccepted check on a bank %

whether domestic or foreign (a).

(Caption as in Form 1.)

The plaintiff, A. B., says that the defendant, C. D. ( at the time hereinafter mentioned,
was a private banker doing business in Louisville, Kentucky [or — in New Orleans, Louis-
iana] ; that, on the 1st day of January, 1890, one E. F., who then, and until after the 5th
day of January, 1890, had more than five hundred dollars on deposit in the defendant's
bank, drew a check of the first named date, which is filed herewith, directed to the de-
fendant and requesting him to pay to the plaintiff or his order five hundred dollars, and
on the last named day notified the defendant that he had drawn said check on the fund
aforesaid; that, on the 1st day of February, 1890, the plaintiff [or— the plaintiff's agent,
G. H-] presented said check to the defendant, at his bank in said city of Louisville [or —
New Orleans], during his usual banking hours, and requested payment thereof, which was
refused ; and that nothing has been paid on said check by the defendant or said E. F.

Wherefore the plaintiff asks for a judgment against the defendant for five hundred
dollars and interest thereon from the 1st day of February, 1890, and costs [and any other
relief the plaintiff may appear entitled to].

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

(a) As to this form, see Lester cV Co. v. Given, &*c, 8 Bush, 357.

27. Petition in action for the value of goods delivered to a third per-

son, on the defendants order to pay money (a).

(Caption as in Form 1.)

The plaintiff, A. B., says that the defendant, C. D., by an order dated the .... day of
, and by him signed and delivered to one E. F., and which is filed herewith, re-
quested the plaintiff to pay one hundred dollars to said E. F.; that said E. F. delivered



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