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b. Reply traversing a plea of failure of consideration (see Form 96, c, p. 635.)
(Caption as in Form 125, a, p. 667.)

1. The plaintiff denies that he falsely or fraudulently represented to the defendant that
the horse in the answer mentioned was sound, and denies that the plaintiff knew that it
was unsound or had a disease.

2. The plaintiff denies that said horse had a disease which made it of no value {a ).
(Verification as in Form I.) E. F., Attorney.
(a) See note {a) 2 to Form b, p. 635; and note to Form 119, p. 661.

127. Reply and Rejoinder as to alleged fraud in selling a buggy-
horse to defendant (see Form 97, p. 638).

a. Reply.

(Caption as in Form 125, a, p. 667.)

1. The plaintiff denies that his representation to the defendant, that the horse men-
tioned in the answer was a safe and gentle harness-horse, was made falsely or fraudulently ;
denies that he, the plaintiff, knew that said horse was not safe and gentle, and denies that it
ran away with the defendant's buggy by reason of its being timid, wild, or vicious; [and says
that, when the plaintiff sold it to the defendant, it was a safe and gentle harness-horse (a)].

[2. The plaintiff says that the foregoing denials are true, and that he believed that said
horse was a safe and gentle harness-horse when he sold it to the defendant (1?)].

3. The plaintiff says that said horse was made to run away with the defendant's buggy
by the conduct of the defendant, who beat it violently in order to make it go up to a
bear which a showman had on the side of the road on which the defendant was driving ;
and, whilst the defendant was doing so, his bridle-bit, which was old and imperfect,
broke, and said horse ran off in order to get away from said bear and from the pain caused
by the defendant's whip, both of which were strange things to said horse.

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

(a) It seems tome that the averments in the second paragraph, and in the bracketed
part of the first paragraph, of this Form are rendered unnecessary by the denials in the
first paragraph (see note {a) to Form 119, p. 661 ; and note (a) to Form 128, p. 670) ; and
that, if those averments be made, they should be joined with these denials. See note {a)
to Form 109, p. 647.

b. Rejoinder traversing part of the reply.

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

against V Rejoinder.

CD., Defendant. J

1. For rejoinder to the second paragraph of the plaintiff's reply, the defendant denies
that tbe plaintiff believed that the horse therein mentioned was a safe or gentle harness-
horse when he sold it to the defendant.



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67O FORMS.

2. For rejoinder to the third paragraph of said reply, the defendant denies that the
horse therein mentioned was made to run away by the defendant's conduct; denies that
he beat it violently, or at all, in order to make it go up to a bear ; denies that he was beat-
ing said horse violently, or at all, when his bridle-bit broke, or that he had been beating
it violently or at all ; and denies that it run off in order to get away from pain caused by
his whip. G. H., Attorney.

(Verification as in Form I.)

128. Reply to plea of fraud in obtaining execution of contract (see

Form 98, p. 638).

(Caption as in Form 125, a, p. 667.)

The plaintiff denies that he obtained the note sued on by fraud, covin, or misrepresen-
tation (a). [Or, if the answer allege facts as constituting the fraud \ traverse them specific-
ally ip).] E.F., Attorney

(Verification as in Form I.)

(a) A reply, averring that the plaintiff obtained the note fairly and honestly and not
by fraud, covin, or misrepresentation, would amount to nothing more than a traverse, and
no rejoinder would be necessary. See Form in 2 Ch. PL, 641.

(b) According to Chitty, though a plea of fraud in obtaining the execution of a contract
state the fraudulent misrepresentations by which it was procured (2 Ch. PL, 495), a reply
that it was obtained honestly and fairly, and not by fraud, covin, or misrepresentation,
was formerly sufficient. 2 Ch. PL, 641. But it seems clear that, under the Code, such
specific allegations must be specifically traversed.

Some suggestions will be made here which might, perhaps, have been more appro-
priately made on page 127, ante, where cases are cited showing a conflict of opinion on the
question whether or not a plea of fraud in obtaining tjie execution of a contract must state
facts showing the fraud. According to the common law, there was no general issue in an
action of covenant; but, in an action of debt on a bond, the defendant, under a plea of
non est factum, could prove that its execution had been fraudulently obtained. In view
of that fact, it seems to me, with reference to cases cited on page 127, that the cases in 1
J. J. M., 107, and 2 Dana, 161, holding that, in an action of covenant, a plea that the
plaintiff obtained the bond by fraud need not state facts showing the fraud, have little, if
any, bearing on the question as to what is the rule under the Code, which requires an affir-
mative pleading to ** state facts which constitute a cause of action or defence" (§93).

There is plain ground for a distinction between cases in which the pleader can not be
presumed to know, and cases in which he must be presumed to know, the facts connected
with a fraudulent transaction. For instance, in Meriel Tresham's Case, 9 Coke, no, which
was cited as authority for the decision in 2 Dana, 161, it was held that, when a creditor
attacks a gift of goods as having been made by his debtor with fraudulent intent, or when
a creditor of a decedent attacks a judgment in favor of another creditor as having been
fraudulently obtained or continued in force, a general allegation of fraud is sufficient; be-
cause, in such cases, " covin is so secret, whereof by intendment another man can not have
knowledge." I concede that, in such cases, a general allegation of fraud is sufficient
under the Code, because it can not be supposed that the Code, in requiring a party to
state the facts relied on, intended to require him to state facts which he can not be pre-
sumed to know. But a man must be presumed to know by what fraudulent represen-
tations he, himself, was induced to make a contract ; and I submit that, under the Code,
he should be required to state them ; the propriety of which is well illustrated by one of
the pleas in the case in 3 Afar., 457, which was held to be insufficient.

129. Replies, &c, as to the defendants alleged infancy (see Form

99, a, p. 639).

(I) AS TO THE NOTE HAVING BEEN GIVEN FOR NECESSARIES,
a. Reply that the note was given for necessaries.

(Caption as in Form 125, a, p. 667.)

The plaintiff says that the note sued on was given by the defendant in consideration of
the food, lodging, washing, and clothing mentioned in the account herewith filed, marked



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REPLIES, REJOINDERS, tiTC. 67I

Exhibit A, and which were reasonably worth the sums respectively stated in said account
with reference thereto, and that the same were necessaries suitable to the age, es'tate, and
condition of the defendant (a). E. F., Attorney.

(Verification as in Form I.)

(a) See Form in 2 Ch. PL, 620, my most material change of which is the use of " age "
for "degree."

b. Rejoinder, traversing the reply.

(Caption as in Form 127, b, p. 669.)

1. The defendant denies that the food, lodging, washing, or clothing in the plaintiff's
reply mentioned were necessaries suitable to the age, estate, or condition of the defendant.

2. The defendant denies that said alleged necessaries were worth more than

dollars for the food, dollars for the lodging, for the washing, or dol-
lars for the clothing. G. H., Attorney.

(Verification as in Form I.)

(2) AS TO THE DEFENDANT'S RATIFICATION OF THE CONTRACT (a).

a. Reply that defendant \ when of age, ratified the contract.

(Caption as in Form 125, a, p. 667.)

The plaintiff says that the defendant, after attaining the age of twenty-one years, rati-
fied and confirmed the contract in the petition mentioned by a writing signed by him and
delivered to the plaintiff, and filed herewith, marked Exhibit A, in which he said : [quote
the words of ratification, and, if necessary, state facts showing that they referred to the contract
sued on],

{Or — The plaintiff says that when the note sued on was executed, and for some time before,
the plaintiff and defendant were merchant-partners, under the firm-name of B. & D.; that
said note was given in consideration of the plaintiff's sale to the defendant of the plain-
tiff 's interest in the property and business of said firm ; and that the defendant, after at-
taining the age of twenty-one years, dealt with the demands and property of said firm,
selling the goods and collecting the debts, as his own and for his own benefit, as is shown
by a letter signed by him and addressed to one S. L., who owed money for goods pur-
chased from said firm, in which the defendant said: " I have the collecting of the debts
due to B. & D., and am going on in the same business in my own name."]
[Or — The plaintiff says that the note sued on was given by the defendant in consideration
of a horse sold to him by the plaintiff, and that the defendant, after attaining the age of
twenty-one years, sold and delivered said horse to one S. T.]

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

(a) The Form in 2 Ch. PI., 621, merely makes the plaintiff allege that the defendant,
when of age, " ratified and confirmed the contract ; " but it seems to me that, under the
Code, the reply should show by what words or what conduct the ratification was made.
And before the adoption of the Code, a reply that the defendant had continued to be a
member of the firm which gave the note sued on during a year or more, and did not dis-
affirm it during that time, nor during several years afterward, nor until he was sued on it,
was held to be insufficient, because it failed to aver that he had knowledge of the note and
that he was looked to as a party to it. 1 B. M., 289.

Chapter 22, ? 1, of the General Statutes declares that " no action shall be brought to
charge any person . . . upon a ratification of a contract or promise made during in-
fancy . . . unless the . . . ratification or some memorandum or note thereof be
in writing," &c. In Stern v. Freeman, 4 Met., 309, a letter from the defendant, when of
age, to a third person, showing that the defendant had, when an adult, dealt with the prop-
erty, for which the note was given, as his own, was held to be a ratification in writing ;
and in Robinson v. Hoskins, 14 Bush, 393, the defendant having, when an adult, sold a
bone purchased during infancy, it was held that •• his conduct amounted to a ratification
of the original agreement, and needed no written promise to support it."

43

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672 FORMS.

b. Rejoinder to the first paragraph of the reply ', with averment that the writing was obtained
.fraudulently.

(Caption as in Form 125, b, p. 669.)

The defendant says that the plaintiff obtained the writing in his reply mentioned by
fraud, covin, and misrepresentation.

[Or, as seems to me the better course, state the misrepresentations or other fraudulent means by
which the plaintiff obtained the writing [a)\ G. H., Attorney.

(Verification as in Form I.)



{a) See Form 98, p. 638 ; and note (b) to Form 128, p. 670.

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c. Sur-rejoinder traversing the rejoinder.

A. B Plaintiff, \ Lee Circuit Court.

against I Sur-rejoinder.

C. D., Defendant.

The plaintiff denies that he obtained the writing in his reply mentioned by fraud, covin,
or misrepresentation.
[Or, if the reply state facts as constituting the fraud, traverse them specifically].

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

1 30. Replies in actions on penal bonds for the penalty.

a. Reply to plea of conditions performed (see Form 100, a, p. 640).
(Caption as in Form 125, a, p. 667.)

The plaintiff says that, as is stated in the writing in his petition mentioned, he, at the

request of the defendant, became bound to T. C. for the payment of dollars on the

.... day of ; and that, on the day of , said money not having been

paid to said T. C, he brought an action against the plaintiff in the circuit court on

his said obligation, in which action said court, on the .... day of , duly rendered

a judgment against the plaintiff for dollars [and interest thereon from the .... day

of ], and costs, which amounted to dollars ; all which, amounting to

dollars, the plaintiff was compelled to pay and did pay to said T. C, on the .... day of
(a). E. F., Attorney.

(No verification necessary.)

(a) See Cutler v. Southern, I Saunders, 1 1 6, in which a rejoinder that the defendant had
not any notice of the alleged damnification, and, if he had, he would have 'saved the
plaintiff harmless, &c, was held to be bad; 1st, because the defendant was bound to take
notice of the act of T. C. (see note V, ante, p. 72) ; and, 2d, because the rejoinder that he
failed to save the plaintiff harmless for want of notice was a departure from his plea, which
averred that he had saved the plaintiff harmless. See Code, £ 101, and notes.

b. Reply to plea in excuse of performance (see Form 100, b, p. 641).
(Caption as in Form 125, a, p. 667.)

The plaintiff says that, after executing the bond sued on, to-wit, on the .... day of

, the defendant received as agent of the plaintiff [describe the money or property and

value of the property received], and has failed and refused to account therefor or for any part

thereof (a), though, on the .... day of , the plaintiff requested him to do so, and

that the plaintiff's demand therefor is wholly unpaid and unsatisfied.

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

(a) See I Saunders, 101 to 103; 2 Ch. PL, 648.



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REPLIES, REJOINDERS, ETC. 673



b. Rejoinder.

(Caption as in Form b, p. 669.)

The defendant denies that, on the .... day of [or at any time before the com-
mencement of this action], the plaintiff requested him to account for the money [or — the
property] in the reply mentioned {a). G. H., Attorney.

(Verification as in Form I.)

(a) See Robertson v. ArmsJxong's ttdm'r, 1 Bush, 263.

131. Reply and Rejoinder, relating to accord and satisfaction (see
Form 103 b, p. 643).

a. Reply that the property was delivered in satis/action of an o ther debt due the plaintiff.

(Caption as in Form 125 a, p. 667.)

The plaintiff denies that the property in the answer mentioned was delivered by the
defendant, or received by the plaintiff, in satisfaction of the note in the petition men-
tioned {a) ; and says that it was delivered by the defendant, and received by the plaintiff,

in satisfaction of a debt amounting to dollars on an account for goods, wares, and

merchandise sold and delivered by the plaintiff to the defendant.

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

{a) See note {a) to Form 109, p. 647.

b. Rejoinder traversing the reply.
(Caption as in Form b, p. 669.)

The defendant denies that the property in his answer mentioned was delivered by him,
or received by the plaintiff, in satisfaction of a debt for goods, wares, or merchandise sold
or delivered by the plaintiff to the defendant (a).

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

(a) The plaintiff's reply having impliedly admitted that he had received the property,
the burden is on him to show that it was delivered in satisfaction of the debt therein men-
tioned. See note d, ante, p. 391.

132. Reply, &c, relating to a release in an action on a note for $500
credited with $50 (see Form 104, p. 644) (a).

a. Reply impeaching the consideration.

(Caption as in Form 125 a, p. 667.)

The plaintiff says that the only consideration which he received for the release in the
answer mentioned was the sum of fifty dollars paid to him by the defendant after the note
in the petition mentioned became due, to-wit, on the .... day of

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

b. Rejoinder that release was given in consideration of a horse.
(Caption as in Form b, p. 669.)

The defendant denies that the plaintiff executed the release in the defendant's answer
mentioned in consideration of fifty dollars paid by the defendant ; and says that, on the
.... day of , he offered to deliver to the plaintiff a horse, if the plaintiff would re-
lease his demand on the note sued on ; and that the plaintiff, upon said offer, accepted
said horse, but requested the defendant to sell it for him for the best price that could be
got, which the defendant did ; and that, upon his paying the proceeds of the sale, namely,
fifty dollars, to the plaintiff, he signed and delivered said release to the defendant.

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



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674 FORMS.

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c. Sur-rejoinder traversing the rejoinder.

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

against J. Sur-rejoinder.

C. D Defendant.

The plaintiff denies that he accepted the horse in the rejoinder mentioned as a con-
sideration for the release therein mentioned, or otherwise, and denies that the defendant
was requested to sell or did sell said horse for the plaintiff.

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

(a) See, ante, note 18, p. 630; note 10, p. 124; 2d paragraph of note (1), p. 629; and
Form b and note, p. 643.

133. Reply to plea of alleged defect in plaintiff's title to land sold to

defendant (see Form 105, p. 644).

(Caption as in Form 125 a, p. 667.)

The plaintiff says that he has, since the filing of the defendant's answer herein, pro-
cured from S. T., who is alleged in said answer to have a claim on the land in the petition
mentioned, a deed conveying and releasing to the plaintiff all of said S. T.'s interest in
said land, and the same is filed herewith, marked Exhibit A (a).

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

{a) See note (d) to Form b, p. 584, No reply is necessary to that part of the answer
which avers that the plaintiff has no title, as the petition ante, p. 576, avers that the plain-
tiff owns the land in fee simple. See observations, ante, p. 667.

134. Reply to plea ofplene administravit (see Form 107 a, p. 645).

A. B., Plaintiff, 1 Lee Circuit Court.

against \ Reply.

C D., administrator of I. J., Defendant. J

The plaintiff says that the defendant has not fully administered the goods, chattels,
credits, and effects of I. J., deceased, [except those mentioned in his answer as not having
been administered] (a). E. F., Attorney.

{Verification as in Form I.)

(a) Form 107 a is an answer to a petition in which the plaintiff merely asks for a jndg-
ment against the defendant as administrator, without making any statement as to assets—
an answer which was formerly usual but now seems unnecessary. See note (a), ante,
p. 646. It is sufficient for the plaintiff to traverse such an answer, without stating the
amount of assets unadministered or their value {Bishop v. Hamilton, 4 f.L M., 54^) ;
though Chitty's Form (vol. 2, p. 633) makes the plaintiff aver that they are of the value of
the plaintiff's demand.

In an action for a devastavit, as in Form 17, p. 520, a plea of plene administravtt, as in
Form 107 b, forms an issue, and no reply is necessary.

135. Replies to answers pleading limitation.

(I) a. Reply to Form 108 a, /. 646, showing that the cause of action originally accrued witks*
the period 0/ limitation.

(Caption as in Form 125 a, p. 667.)

The plaintiff says that the horse in his petition mentioned was sold and delivered to

the defendant on the .... day of [stating a day which was, say, Jive years and

four months before the commencement of the action], upon an agreement between the plaintiff
and defendant that it was to be paid for six months after said day (a).

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



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REPLIES, REJOINDERS, ETC. 675

(a) The Form in 2 Ch, PI., 631, makes the reply to a plea of non assumpsit within six
years merely aver that the defendant did undertake and promise within six years. Bat It
seems to me that, under the Code, a reply to a plea of limitation should state facts showing
that the action is not barred ; as, in an action for the price of a horse, a statement that it
was sold and delivered within five years before the commencement of the action, or that
it was sold on a credit which made the cause of action accrue within that period.

b. Rejoinder traversing the reply.

(Caption as in Form b, p. 669.)

The defendant denies that it was agreed between him and the plaintiff that the horse
in previous pleadings mentioned was to be paid for six months after the sale and delivery
of it to the defendant. G. H., Attorney.

(Verification as in Form I.)

(2) Reply to Form 108 a, averring, defendants promise to pay plaintiff' 's demand, or acknowl-
edgment that it was due, before his action was barred by limitation.

(Caption as in Form 125 a, p. 667.)

The plaintiff says that, on the .... day of [state a day which came before the

plaintiff *s action was barred by limitation (a)], the defendant, being indebted to the plaintiff

in the sum of dollars on the account [or— note] in the plaintiff's petition mentioned,

acknowledged [to the plaintiff {or— to the plaintiff's agent) (b)] that said account [or— note]

was justly due to the plaintiff.

[Or — promised the plaintiff (or — the plaintiff's agent) to pay said account (<?r— note)].

[Or — paid to the plaintiff dollars to be credited on said note, as was done by the "

plaintiff on the day aforesaid (<)]. E. F., Attorney.

(VerificaH*»«sfn Form I.)



(a) The moral obligation to pay a debt which has been barred by limitation is a suf-
ficient consideration to support a promise to pay it (see Form 19, p. 533), whether the
promise be express or implied ; and such promise will be implied from an acknowledgment
that the debt is justly due (Heads ex*x v. Manner's admr's, 5 /. /. M., 255 ; 7 /./. A/.,
431 ; 5 Bush, 450-51 ; 6 Id., 480-81) ; and in such case the plaintiff must sue on the new
contract, and not on the original cause of action. Such promise or acknowledgment, how-
ever, though in writing, if made before the plaintiff's action was barred by limitation,
does not create a cause of action, unless it was received in satisfaction of the existing
liability ; but, as it shows that the debt was then due to the plaintiff, it has the effect of
cutting off the antecedent time : for instance, if the payor of a note which has been due ten
years verbally promises to pay it, the payee can maintain an action on the note within fif-
teen years thereafter, though he can maintain no action on the promise ; but if such
promise be made when the note has been due fifteen years, the payee can maintain an
action on the promise only, and the lapse of five years will bar it. Gilmore v. Green,
14 Bush, 772, and cases cited.

(b) This bracketed statement is probably unnecessary. An acknowledgment, if relied
on as having created an implied promise to pay a debt barred by limitation, must, like an
express promise, be shown to have been made to the plaintiff or his agent. 9 Bush, 278-79.
But I have found no decision applying that rule to an acknowledgment of an unbarred
debt, the only legal effect of which is to show that the debt was unpaid at the time of the
acknowledgment, unless Hargis, <5rV. w v. SeweWs adm'r, 87 Ky., 63, is to be regarded as so
deciding ; and the contrary seems inferable from cases in 2 Bibb, 285 ; 7 J. J. Af., 430-31 ;
and 4 Dana, 504.

(c) See Hopkins v. Stout, 6 Bush, 375 ; English v. Walham, 9 Id., 387; Frazer's adm'r
v. Frazer, 13 Id., 397.

(3) Reply to Form 108 a, averring defendants absence from Kentucky.

(Caption as in Form 125 a, p. 667.)

The plaintiff says that the defendant was a resident of the State of Kentucky when he
executed the contract in the plaintiff's petition mentioned, and departed from said State

on the .... day of [or — in the month of , in the year , or — in the year

], and continued to be absent therefrom .until [stating the time] (a).

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



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6?6 FORMS.



(a) See G. S. f ch. 71, art. 4, §9, which declares that "when a cause of action . . .
accrues against a resident of this State, and he by departing therefrom, or by absconding
or concealing himself, or by other indirect means obstructs the prosecution of the action,
the time of the continuance of such absence from the State, or obstruction, shall not be
computed as any part of the period within which the action may be commenced." Under



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