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the commission of said wrongs, was pure and wholesome ; and that, in the year ,

the defendant, C D., erected a distillery near to said stream, with the slops produced by
which he has fed large numbers of cattle, confined in sheds erected for that purpose,
during from five to seven months in each year from the time aforesaid hitherto; that the
deposits from said cattle and other offensive matter produced by said distillery have been
permitted by the defendant to run into said stream, rendering it impure and poisoning
the water thereof, whereby it became unfit for the use of man or beast, or to gather ice
from, for which the plaintiffs formerly used it ; and that the decaying matter produced in
the manner aforesaid rendered the air in and about the dwelling-houses on said land so foul
and offensive as to cause the plaintiffs and their family to become sick and frequently to
vomit while taking their meals ; and that, by reason of the premises, the value of said
land as a place of abode has been greatly lessened.

Wherefore [pray for relief as in Form 42, ante, page 556].
(Verification as in Form 1.) E. F., Attorney.

(a) As to this form see, especially, Corley y <5rY., v. Lancaster, 81 Ky., 171 ; in which it
was held that, though, in view of the evidence, the nuisance complained of was a public
one, the plaintiffs were entitled to redress for the special injury to them.

c. Petition in action for injury caused by private nuisance (a).

Fayette Circuit Court.

A. B., Plaintiff, *)

against > Petition.

The Louisville and Nashville Railroad Company, Defendant. J

The plaintiff, A. B., says that the Lexington and Ohio Railroad Company, having
the right to construct a railroad from Lexington to Louisville, constructed, on land
which it owned in Fayette county, and as part of its road-bed, embankments on each
side of a branch of Elkhorn creek, with a culvert for the passage of the water of said
branch, which culvert, as was afterward ascertained, was not wide enough for the free and
natural passage of the water of said branch when swollen by a heavy rain-fall ; that, after-
ward, the defendant, the Louisville and Nashville Railroad Company, a corporation
created by the legislature of Kentucky, became the owner of said road from Lexington
to Louisville, including said embankments and culvert ; and that, after the erection of said
embankments, with said culvert, the plaintiff purchased a lot of land in the county afore-



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PETITIONS IN ACTIONS FOR TORTS, GENERALLY. 57 1



said, adjoining said road-bed and a short distance above said culvert, and erected a dis-
tillery thereon (b) ; that, on or about the .... day of , the plaintiff notified the

defendant of the aforesaid defect in said culvert and that the plaintiff's aforesaid premises
were in danger of being overflowed by reason thereof, and requested the defendant to
widen said culvert, so as to allow free passage of the water of said branch when swollen
by rain-falls, but the defendant not only failed [and refused] to widen said culvert, but
wrongfully permitted a mass of drift-wood and dirt about two feet high to accumulate
above the upper face and entrance of said culvert, thereby greatly diminishing its capacity

to allow the passage of the water of said branch ; and that, on the day of , by

reason of the said defect in said culvert and of said accumulation of drift-wood and dirt,

the plaintiff's aforesaid lot and distillery were overflowed to the depth of feet, and

[state the injuries and pecuniary losses resulting to the plaintiff].

Wherefore [pray for relief as in Form 42, ante, page 556].

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

(a) As" to this form see, especially, West <5r» Bro. v. Louisville, Cin. <5r* Lex. Railroad
Co., 8 Bush, 404.

(b) See, also, Seifriedv. Hays, <5rY., 81 Ky., 377, and cases cited, as to a person's right to
complain of a nuisance created before he purchased land and erected improvements near it.

52. Petitions in actions for fraud in selling personal property (a) to tfie
plaintiff (formerly actions on the case) (b).

a. Petition to recover damages for the fraud, without averring a request to cancel the contract (c).
(Caption as in Form 1.)

The plaintiff, A. B., says that, on or about the .... day of , he bought a horse

from the defendant, C. D., for two hundred dollars then paid to him, and that the plain-
tiff was induced to do so by the defendant's false and fraudulent representation that said
horse was sound, though, as the defendant knew, it was unsound (d) and had a disease (e)
which, as the defendant knew, would, if not mortal, make it of no use for a considerable
length of time ; and the plaintiff says that said horse was, by said disease, made of no

use for the space of weeks and so reduced in value that it was not worth over

dollars after said disease was cured, and that the plaintiff was compelled to spend,

and did spend, dollars for the feeding and taking care of said horse whilst it was

of no use as aforesaid, and dollars for medicines used and veterinary services pro~

cured for the curing of said disease.

Wherefore [pray for relief as in Form 42, ante, page 556].

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

(a) As to suing for fraud in selling real property see Form d, ante, page 505, and note
thereto.

(b) 1. In such cases, if the property be found to have been of no value when pur-
chased, the consideration having entirely failed, the vendee can maintain an action against
the vendor for the purchase-money paid and for damages for the fraud, without offering
to return the property or demanding a recissionof the contract. 4 Bibb, 569; 3 f.f. M.,
293; 4 Id., 154-55; Griswoldv. Taylor's adm'r, 1 Met., 228.

If the property was of any value when purchased, the vendee has the option to keep
it and sue for damages for the fraud, though not for purchase-money paid (4 Bibb, 92, 93 ;
4 Litt., 266 ; I Dana, 30) ; or to tender the property to the vendor, unless he has waived
a tender, as, by declaring that he would not receive the property (4 Litt., 15, 16), or unless-
a tender has become impracticable without the vendee's fault (see Rogers v. McKnight, 4
f.f. M., 155), and demand a rescission of the contract, a return of the purchase-money,
if paid, and damages for the fraud, and to sue therefor if satisfaction be refused ; but the
tender, unless excused, must be made within a reasonable time after discovering the fraud
(3/./. Af. t 62, 293; 3 B. M., 423), or after it might have been discovered by the use of
reasonable and ordinary vigilance (6 B. M., 555; 4 Litt., 15; Hanks v. McKee, 2 Litt.,
227 ; Hoggins v. Becrqft, 1 Dana, 28) — the reasonableness of the time being determinable
by the jury. 3 Dana, 480-81 ; Reading v. Price, 3 /. /. M., 63.



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572 FORMS.

2 As to suing on a warranty of the soundness of a horse see Form 7, ante, page 503.

But the vendee can waive the contract and sue for damages for the fraud (4 Mon., 126-
27 ; Hancock v. Shipp, 1 J.J. M., 440) ; the rule being that the plaintiff can sue only on a
contract when his right depends on it alone, but that he can waive it when the defend-
ant's conduct has given an independent cause of action (1 Afar., 295-96: see, for a striking
example, Winnegar>s adm>r v. Central Passenger Railway Co., 85 Ky., 547); and, in such
action, the contract is admissible in evidence as matter of inducement. 4 Bibb, 360.

3. In an action for fraud, it seems that exemplary damages ought to be recoverable, as
they are according to decisions in Bacon v. Brown, 4 Bibl>, 92 ; Crews v. Dabney, 1 lilt.,
278, and Jackson's ex'rs v. Holliday's adm'rs, 3 Mon., 368; and opinions in Fleet and Sim-
ple v. Hollenkamp, 13 B. Af., 225, and Parker v. Jenkins, 3 Busk, 590; and see Hordv.
Ckandler, 13 B. Af., 405. But see Farris v. Lewis, 2 B. Af., 375; Singleton's adm'r v.
Kennedy, <5rV., 9 B. Af., 224, and Campbell v. Hillman, 15 Id., 518; in the first of which
cases, however, the court seems, whilst considering other questions, rather to have over-
looked, than to have decided against, the right of the jury to give exemplary damages;
and, according to the other two cases, a fraudulent vendor seems to stand on no worse
footing as to damages than an honest vendor who has been unable to perform his contract
for the delivery of property at an agreed price ; though it seems to be settled that a fraudu-
lent vendor of land stands on a worse footing than an honest one who is unable to convey
title : see 3d paragraph of note (1), ante, page 77.

(c) See note (b), 1, on last foregoing page.

(d) See Hardin, 50; 2 Bibb, 618; 3 Id., 35; 4 Id., 360; 1 Dana, 275; 3 Id., 480.

(e) The plaintiff need not state the nature of the disease (3 Afon., 173; 4 J. J. Af.,
154; 1 Met., 229-30), except as the foundation of a claim for consequential damages: see
2d paragraph of the next following form.

b. Petition to recover purchase-money paid and damages for the fraud, without averring a re-

quest to cancel the contract.

(Caption as in Form I.)

The plaintiff, A. B., says—

1. That, on or about the .... day of , he bought a horse from the defendant,

C. D., for dollars then paid to him, and that the plaintiff was induced to do so by

the defendant's false and fraudulent representation that said horse was sound, though, as
the defendant knew, it was not sound and had a disease (a) which made it of no value {b).

2. That said disease was glanders, a contagious and incurable disease, which said horse,
before the plaintiff discovered that it had said disease, communicated to horses be-
longing to the plaintiff and of the value of dollars, and which the plaintiff on dis-
covering that they had glanders, killed and buried, at the expense of dollars [c),

and [state the cost of veterinary attention, if any, and any other special damages resulting
from the glanders].

Wherefore [pray for relief as in Form 42, ante, page 556].

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

(a) See note (e) to last foregoing form.

\b) See note {b) 1, ante, page 571.

(c) See Farris v. Lewis t 2 B. Af., 375, and G. S., ch. I, J 8.

c. Petition to recover purchase-money paid, and damages for the fraud in selling property nrt

portable on l/ie person, with averment of request to cancel the contract (a).

(Caption as in Form 1.)

The plaintiff, A. B., says that, on or about the .... day of , he bought a horse

from the defendant, C. D., for two hundred dollars then paid to him, and that the plaintiff
was induced to do so by the defendant's false and fraudulent representation that said
.horse was sound, though, as he knew, it was not sound and had a disease which, as the
•defendant knew, if not mortal, greatly impaired its value ; that the plaintiff did not dis-

■cover said unsoundness until the .... day of , and that, within a reasonable time

thereafter, to-wit, on the .... day of , the plaintiff tendered said horse to the de-
fendant at his residence and requested him to receive it and pay to the plaintiff the afore-



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PETITIONS IN ACTIONS FOR TORTS, GENERALLY. 573



said som of two hundred dollars, but the defendant refused to receive said horse or to pay
the plaintiff any part of said money ; and that, thereupon, on the day last above men-
tioned, the plaintiff left said horse on the defendant's premises (6) [as he then and there
informed the defendant he would do]. [Set forth the special damages, if any, caused to
the plaintiff by the fraud.]

Wherefore [pray for relief as in Form 42, ante, page 556].

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

(a) As to this form see note (6), I, to Form 52, a, ante, page 571.
(6) See McCulloch v. Scott, <SrV., 13 B, M., 172.

d. Petition to recover purchase-money paid, and damages for the fraud in selling property por*
table on the person, with averment of request to cancel the contract {a) .

(Caption as in Form 1.)

The plaintiff, A. B., says that, on or about the .... day of , he bought a breast-
pin from the defendant, C. D., for one hundred dollars then paid to him, and that he was
induced to do so by the defendant's false and fraudulent representation that said breast-
pin was set with a diamond, though, as the defendant knew, it was not set with a diamond,
but was set with a paste brilliant of much less value than the diamond which it was repre-
sented to contain ; that the defendant did not discover said fraud till the day of

, and that, on said day [or— within a reasonable time after said day, to-wit, on

the .... day of ], the plaintiff tendered said breast-pin to the defendant, and re-
quested him to pay to the plaintiff the aforesaid sum of one hundred dollars, but the
defendant refused to receive said breast-pin, and refused to pay said money or any part
thereof to the plaintiff [set forth the special damages, if any, caused by the fraud].

And the plaintiff brings said breast-pin into court here, ready for delivery to the de-
fendant (£).

Wherefore [pray for relief as in Form 42, ante, page 556].

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

(a) As to this form see note (6), 1, to Form 52, a, ante, page 571.
(£) See 1st paragraph of notes, ante, page 69.

53. Petition in action for false representation of character, &c, (for-
merly an action on the case).

(Caption as in Form 1.)

The plaintiff, A. B., says that, on and for some time before the .... day of , he

was a merchant, dealing in dry-goods, and that one L. M. wishing to buy goods from the
plaintiff on credit, the defendant, C. D., to enable said L. M. to do so, did, on the day
aforesaid, [in a letter of that date which was signed by the defendant and addressed to the
plaintiff and delivered to him by said L. M., and which is filed herewith (a),] falsely and
fraudulently represent to the plaintiff that he might safely sell goods to said L. M. on
credit, though the defendant knew that the plaintiff could not safely do so ; and the
plaintiff says that he was induced by said representation to sell and deliver, and on the

faith thereof did sell and deliver, goods of the value of dollars to said L. M., to

be paid for four months after said day ; and that neither the said L. M. nor any one for
him has paid any part of said money to the plaintiff, nor has said L. M. any property
known to the plaintiff which can be subjected for the payment thereof.

Wherefore [pray for relief as in Form 42, ante, page 556].

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

(a) The Gen. Statutes, ch. 22, J I, declares that no action shall be brought to charge any
person for a representation concerning the credit of another unless the representation be
in writing, &c. But in Warren v. Barker b* Co., 2 Duv., 155, it was held that the statute
does not apply to a fraudulent representation.



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574 FORMS.

H. 54. Petitions in actions on statutory causes of action (a).

a. Petition in action for statutory relief when none is given by the common law,

Jefferson Court of Common Pleas.

A. B., administrator of C. D., Plaintiff, \

against I Petition.

The Louisville and Nashville Railroad Company, Defendant, j

The plaintiff, A. B., says that the defendant, the Louisville and Nashville Railroad
Company, is a corporation created by the legislature of Kentucky, with authority to con-
struct and operate a railroad from Louisville, Kentucky, to Nashville, in the State of Ten-
nessee ; that, on the .... day of , the life of the plaintiff's intestate, C. D., was de-
stroyed by the willful neglect (b) of the defendant's servants and agents in running over
him an engine and train of cars which said servants and agents had been employed by the
defendant to run, and which they were running under said employment, from said city of

Louisville to said city of Nashville ; and that, on the day of , the plaintiff wis

appointed and qualified as administrator of the estate of said C. D. by an order duly
made {c) by the county court of Jefferson county.

Wherefore the plaintiff, administrator as aforesaid, asks for a judgment against the de-
fendant for dollars damages and costs [and any other relief he may appear en-
titled to].

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

(a) See, ante t notes (1) to (5), pages 96, 97; and note IX, page III.

(b) In suing on a statutory cause of action, it is proper, if not indispensable, to follow
the language of the statute in the petition. For example, ch. 37, $ 3 of the General
Statutes, gives to the widow, heir, or personal representative of a person whose life "is lost
or destroyed by the willful neglect " of another person or corporation, their agents or ser-
vants, the right to recover punitive damages for the loss or destruction of such life; and
it was held to be insufficient to allege that the killing was done " through gross and cul-
pable negligence; or " recklessly, carelessly, and wantonly;" or " carelessly, negligently,
wrongfully, and unlawfully." See note d y ante, page 113: but see, also, notes (4) and (5)
on said page.

As to deaths resulting from "an injury inflicted by negligence or wrongful act" since
September 28, 1891, see \ 241 of the present Constitution.

(c) See Code, § 122.

b. Petition in action for cumulative statutory relief,
(Caption as in Form 1.) 9

The plaintiff, A. B., says that, on the .... day of , E. F., a justice of the peace

in and for Lee county, at the instance and request and upon the oath of the defendait,
C. D., issued a distress-warrant directed to G. H., a constable in and for said county, and
authorizing him to distrain the personal estate of this plaintiff for the sum of dol-
lars claimed by the defendant as rent due to him from the plaintiff; and that, by authority

of and pursuant to said warrant, the said constable, on the .... day of , distrained

[describe the property] belonging to the plaintiff, and of the value of dollars, and,

on the .... day of , sold said property, being of the value aforesaid ; and that no

part of the said sum of dollars was due from the plaintiff to the defendant when

said property was distrained [or when it was sold] as aforesaid.

Wherefore, pursuant to chapter 66, article 2, \ 26, of the General Statutes, the plaintiff
asks for a judgment against the defendant for four hundred dollars damages, being double
the value of said property (a) [and for any other relief the plaintiff may appear en-
titled to].

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

(a) When a statute has given a cumulative remedy, the plaintiff has the option to sue
for relief under if or under the common law, but not under both (see note (2), ante, page



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PETITIONS IN ACTIONS IN EQUITY. 575



Hi); and, to avail himself of the former, his petition must show that he relies on the
statute. Belt v. Norris, 79 A>„ 48.

c. Petition in action for relief under a statute containing an exception or condition with refer-
ence thereto (a),

A. B., the widow of B. B., Plaintiff, \ Lee Circuit Court.

against • I Petition.

C. D., Defendant. J

The plaintiff, A. B., says that, at the time of the death of B. B., she was his wife and

has not since married ; and that, on the day of , the defendant, C. D., by the

malicious use of a fire-arm, to- wit, a pistol loaded with gunpowder and bullets, and not in
self-defence, killed the said B. B.

Wherefore [pray for relief as in Form 42, ante, page 556].

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

{a) For the statute to which this form relates see G. S. f ch. 1, §6, which declares that
•• the wTdow and minor child or children (or either or any of them) of a person killed by
the . . . malicious use of fire-arms, . . . not in self-defence, may have an action
against the person or persons who committed the killing," &c.

If the clause of a statute which gives a right of an action contain an exception or con-
dition with regard thereto, the petition must show that the plaintiff's cause of action is not
within the exception or condition : a/iter, if the exception or condition be contained in
a different clause from that which gives the right of action. See note 1 (3), ante, page
111.

As to deaths resulting from "an injury inflicted by negligence or wrongful act" since
September 28, 1891, see {241 of the present Constitution.



III. PETITIONS IN ACTIONS IN EQUITY (a).

55. Petition (filed May I, 1892)0/* a mortgage 0/ land for a debt due
and a debt not due to plaintiff.



A. B., Plaintiff, \ Lee Circuit Court.

against I Petition in Equity.

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

The plaintiff, A. B., says that, on the 1st day of April, 1891, the defendants, C. D.,
and his wife, E. D., executed and delivered to the plaintiff a mortgage of a tract of land
belonging to said C. D., situate in Lee county {b) and bounded as follows, — [describe it by

abuttals or by metes and bounds], and containing acres, to secure payment of

three notes, of the date aforesaid, which said C. D. signed and delivered to the plaintiff,
and by each of which he promised to pay to the plaintiff one thousand dollars in, respect-
ively, one, two and three years after said date, with interest at the rate of six per centum
per annum, which notes and mortgage are filed herewith ; [that said land can be divided
without materially impairing its value (c)]; and that nothing has been paid on either of
said notes [and that said land is probably insufficient to discharge said mortgage-debts (</)].

Wherefore the plaintiff asks for a judgment against said C. D., personally, for one
thousand dollars and interest thereon from April 1st, 1891, and costs (1), and for an order
directing a sale of so much of said land as may be necessary to pay said last named money
and interest and costs (/) ; [and for the appointment of a receiver to take charge of said
land and collect the rents and profits thereof for payment on said debts (g)] ; and for
any other relief the plaintiff may appear entitled to (A). E. F., Attorney.

(No verification necessary, unless, at any rate, the petition aver that the property is
probably insufficient to discharge the mortgage-debts).

37



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576 FORMS.



(a) See note C, ante, page 113, for suggestions as to distinctions between petitions in
equity and petitions in ordinary actions.

(b) This action is local. Code, § 62.

(c) This averment, though allowable, is unnecessary: the facts as to divisibility of the
land can be shown without any allegation concerning it (Code, £694.) ; and, in the absence of
allegations or proof on the subject, the court will presume that a thirty-acre tract can be, and
that a house and lot in a town can not be, advantageously divided. 13 Bush, 415-16, 473.

(d) See Code, \ 299.

(e) See Code, §376.

(/) Unless the property be divisible without materially impairing its value, the mort-
gagee is not entitled to an order of sale till all the mortgage-debt falls due. See note (c\,
ante, page 445.

(g) Under the Code, the mortgagee can not recover possession of the land, and can
not subject accruing rents and profits except through the appointment of a receiver. See
note(/), ante, page 242.

(h) Upon a suggestion of record that lien-debts stated in the petition have become
due, pendente lite, the plaintiff may have an order of sale therefor (Code, §135); but it
seems that, in order to obtain a personal judgment on such debts, the plaintiff must file a
supplemental petition (see 1 135) or bring a new action.

56. Petition (filed May 1, 1892) stating lien-claims due and not due
to tlte plaintiff and others,

A. B., Plaintiff, \ Lee Circuit Court.

against \ Petition in Equity.

C. D„ E. F., andG. H Defendants. J

The plaintiff, A. B., says that, on the 1st day of April, 1891, by a deed of that date
which he executed and delivered to the defendant, C. D., and which is in his possession
[and an attested copy of which is tiled herewith, marked Exhibit A. (a)], the plaintiff con-
veyed to said C. D. a tract of land situate in Lee county (b) and bounded as follows,— [de-
scribe it by abuttals or metes and bounds], and containing acres [or — a house and

lDt situate in Beattyville, in Lee county, which lot is bounded as follows, — [describe it by-
metes and bounds] ; in consideration of which the said C. D. signed and delivered to the
plaintiff two notes, of the date aforesaid, by each of which he promised to pay to the
plaintiff five hundred dollars in, respectively, one and two years after said date, with
interest at the rate of six per cent, per annum, and for payment of which a lien was



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 78 of 142)