§ 301. Where an action is brought upon a promissory note in a federal court by an indorsee against the maker, not only the parties to the suit, but also the payee, must be stated on the record to be such as to give the court jurisdiction. Turner v. Bank of North America, 4 Dal., 8.

§ 302. The citizenship of a joint promisor, not served with process, must appear in the declaration. If he be a citizen of the same state with the plaintiff the court can take no jurisdiction. Bargh v. Page, 4 McL., 10.

$303. The assignee of a promissory note or bill to recover must show by the declaration that his assignor could have sued in the United States courts. Fry v. Rousseau, 3 McL., 106. § 304. On a note payable to A. or bearer, suit may be brought in the name of the bearer; he is not an assignee, and need not aver in the declaration the citizenship of A. Sackett v. Davis, 3 McL., 101.

$305. Where the assignee of a promissory note sues, the declaration must show that the assignor, by his citizenship, bad a right to sue in the federal court, or it is demurrable. Fletcher v. Turner, 5 McL., 468.

§ 306. Though the declaration began with an averment that the drawer and indorser were citizens of the same state, which would oust the jurisdiction of the United States circuit court, yet, as it afterwards averred that the indorser was an alien and citizen of another state, this was sufficient to maintain the jurisdiction. Bailey v. Dozier, 6 How., 23.

§ 307. When a contract is averred under which the court would not have jurisdiction by reason of citizenship, and a subsequent contract under which there would be jurisdiction, and it appears that the former was set out only by way of inducement, the jurisdiction will not be defeated. De Sobry v. Nicholson, 3 Wall., 420.

§ 308. The caption of the bill was in the following terms: "T. J., a citizen of the state of Virginia, W. G. J. and M. C. J., citizens of Virginia, infants, by their father and next friend, the said T. J., v. Rev. W. E. A., a citizen of the state of Pennsylvania, in equity." By the Court: The title or caption of the bill is no part of the bill, and does not remove the objection to the defects in the pleadings. The bill and proceedings should state the citizenship of the parties to give the court jurisdiction of the case. Jackson v. Ashton, 8 Pet., 148.

§ 309. Where the writ had stated both the defendants to be citizens of another state than that of which the plaintiff was a citizen, and one of the defendants has been returned not found by the marshal, under the laws of Alabama it is not necessary, in the declaration, to aver the citizenship of the absent defendant. Smith v. Clapp, 15 Pet., 125.

$310. An averment that plaintiffs were a firm of natural persons associated together for the purpose of carrying on the banking business in Omaha, and had been for a period of eighteen months engaged in said business in said place, was held equivalent to an allegation of citizenship. Express Co. v. Kountze Brothers, 8 Wall., 342.

§ 311. An allegation that the defendant is a corporation created by an act of the legislature of New York, located in Aberdeen, Mississippi, and doing business there under the laws of that state, is not a sufficient allegation of citizenship in that state. Insurance Co v. Francis, 11 Wall., 210.

§ 312. An allegation that the defendant corporation is a body politic in the law of and doing business in a certain state is not a sufficient allegation of citizenship in that state. Pennsylvania v. Quicksilver Co., 10 Wall., 553.

§ 313. An averment that complainant was a joint stock association, organized under the laws of New York, having the legal entity and powers therein provided, is not sufficient for jurisdiction purposes, as an allegation that complainant is a corporation. Dinsmore v. Phil. & Reading R. Co.,* 3 Cent. L. J., 157.

§ 314. A declaration in the United States circuit court for the Virginia district stated the plaintiffs to be "merchants and partners, trading under the firm and by the name of D. & Co., of Philadelphia, in Pennsylvania." This was insufficient to give jurisdiction to the court in the action, if the exception had been taken by plea, or by writ of error, within the limitation of such writ. Ross v. Duvall, 13 Pet., 45.

§ 315. A declaration describing plaintiff as "The Third National Bank of Baltimore, a duly incorporated body under the statutes of the United States of America," is defective in omitting an allegation in what state the banking association is established, this being a jurisdictional fact; and is also defective in not alleging that plaintiff is a corporation, a defect which would be cured by verdict. Third National Bank v. Teal,* 5 Fed. R., 503.

§ 316. Where a corporation is sued it is not enough, in order to give jurisdiction, to say that the corporation is a citizen of the state where the suit is brought. But an averment is sufficient, when admitted by a demurrer, that the corporation was created by the laws of the state and has its principal place of business there. Lafayette Ins. Co. v. French, 18 How., 404. $317. The complainants are stated in the bill to be citizens of South Carolina. The defendant, the Bank of Georgia, is a body corporate, but the citizenship of the individual cor

porators is not stated. The averment in the original bill is that A. B. and C. D. are citizens of Georgia and resident therein; A. B. is afterwards designated in the bill as "president of the mother bank," and C. D. as the "president of the branch bank at Augusta, in the state of Georgia." The United States courts have no jurisdiction of the case. The record does not show that the defendants were citizens of Georgia, nor are there any distinct allegations that the stockholders of the bank were citizens of that state. Breithaupt v. The Bank of Georgia, 1 Pet., 238.

§ 318. Where a suit was brought in which the plaintiff was described as a citizen of France, against the Pennsylvania Railroad Company, without any averment that the defendants were a corporation under the laws of Pennsylvana, or that the place of business of the corporation was there, or that its corporators, managers or directors were citizens of Pennsylvania, the absence of such an averment was fatal to the jurisdiction of the court. Piquignot v. The Pennsylvania R. Co., 16 How., 104.

§ 319. Jurisdictional averments.- To show jurisdiction of federal courts on the ground that the action arises under the laws of the United States there must be shown such facts as show how it arises under such laws, and a mere allegation that it does so arise is insufficient. Dowell v. Griswold, 5 Saw., 39.

§ 320. If a party relies upon a constitutional question being involved to give the federal court jurisdiction, it is not necessary that the special section of the constitution which is supposed to be involved should be stated in the pleadings; but it is enough if the facts set forth necessarily involve a constitutional question. Bridge Proprietors v. Hoboken Co., 1 Wall., 116.

§ 321. The plaintiff in a case brought in the federal court under the act of March 3, 1875, must show by proper and apt averments enough to maintain the federal jurisdiction given under that act. Eaton v. Calhoun, 2 Flip., 593.

c. Written Instruments.

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SUMMARY- Writing sued on, how stated, § 322.- Separate breaches to be separately pleaded, § 323.- Only nominal damages to be recovered unless special damage averred, § 323a.— Papers made part of the instrument declared on, § 324.- Amount demanded in debt, § 325.- Smaller sum may be recovered than amount asked, § 326.-Performance of conditions precedent, § 327.— Breach to be single, § 328.— Damage on appeal bond, how averred, § 392.- Breaches to be assigned on penal bond, 330.— Breaches, when to be assigned, § 331.Breach, how to be assigned, § 332.- Declaration against joint obligors, § 333.- Breaches to be assigned before judgment by default, § 334. — Averment of ouster on covenant of warranty, § 335.- Omission to show derivation of title, when formal defect only, § 336.Breach not assigned by averment of non-payment of penalty, § 337.

§ 322. A writing sued on must be stated according to its legal effect, and not merely annexed as an exhibit. Oh Chow v. Hallett, §§ 338-340.

§ 323. When a contract contains several stipulations, breaches of different ones are separate causes of action and must be separately pleaded. Ibid.

§ 323a. An allegation of a breach of a contract, without averment of special damage, is not uncertain, but only nominal damages can be recovered under it. Ibid.

§ 324. When an insurance policy makes the preliminary proposals, answers, etc., of the insured part of the policy, they must be set out in a declaration on the policy. Bidwell v. Insurance Co., § 341.

§ 325. A declaration in debt by the United States on an embargo bond demanding $20,000, and reciting the statute which allows the United States to demand a sum not exceeding $20,000 and not less than $1,000, is a good declaration. United States v. Colt, §§ 342–347. § 326. A declaration in debt must demand a specific sum, but this demand does not preclude the recovery of a smaller sum, where it is diminished by circumstances. Ibid.

§ 327. A declaration on a policy of fire insurance, setting out the terms of the policy, must aver specifically the performance of the various conditions precedent to their recovery. A general allegation of performance will be bad on demurrer. Perry v. Phoenix Assurance Co., S$ 348, 349.

§ 328. In a declaration on an appeal bond the breach assigned must be a single breach, denying each alternative; that is, that the plaintiff in error did not prosecute his writ to effect, nor answer the damages and costs. Tucker v. Lee, §§ 350-358.

§ 329. A declaration on an appeal bond must aver specially the damage. This does not consist of the damages and costs awarded in court, but the loss suffered by the present plaintiff by the failure to pay judgment. Ibid.

$ 330. In an action on a penal bond with collateral conditions, the plaintiff must assign breaches. Burnett v. Wylie, §§ 359, 360.

§ 331. Breaches may be assigned in the declaration or replication, or may be suggested on the record, but a judgment without the assignment of breaches and assessment of damages by a jury will be reversed on error. Ibid.

§ 332. A breach of a covenant is properly assigned if it be in words containing the sense and substance of the covenant, and according with its legal effect. Wilcox v. Cohn, §§ 361– 363.

§ 333. A declaration against some of joint obligors must aver that all have failed to pay, as the breach laid must be as broad as the obligation. Robins v. Pope, §§ 364–366.

§ 334. The breaches of the bond must be assigned before judgment by default. Ibid.

§ 335. In an action on a breach of covenant of warranty of title, an averment that plaintiffs were ousted by due course of law is a sufficient averment of eviction by title paramount. Day v. Chism, §§ 367, 368.

§ 336. An omission by a plaintiff declaring as heir or devisee to show how he derived his title is a defect of form only. Ibid.

§ 337. A declaration averring simply non-payment of the penalty does not sufficiently set forth a breach of the condition. Hazel v. Waters, § 369.

[NOTES.- See §§ 370-416.]

OH CHOW v. HALLETT.

(Circuit Court for Oregon: 2 Sawyer, 259, 260. 1872.)

Opinion by DEADY, J.

STATEMENT OF FACTS.-These actions were commenced October 14, 1872, and the motions to strike out were argued and submitted together on November 9. The first named one is brought to recover the balance of $1,982.46, alleged to be due the plaintiff for laborers furnished the defendant to work upon the North Pacific Railway, and the sum of $365.33 damages for a failure on the part of the defendant to furnish transportation to take said laborers and their freight from said railway to the town of Roseburg. The second is brought to recover a balance of $654.26 and the sum of $142 damages, alleged to be due the plaintiffs and incurred in like manner.

In each case the contract sued upon, instead of being pleaded in the complaint according to its tenor or legal effect, is annexed thereto as an exhibit. In each complaint the allegation in regard to the failure to furnish transportation is numbered six, and commences: "And for a further breach of defendant's said contract plaintiffs allege that defendant failed," etc. No facts are stated except the failure aforesaid to show that the plaintiffs sustained damage by reason thereof. The motions to strike out are aimed at these allegations as well as the ones making the contracts exhibits, and the contracts themselves. $338. A writing sued on must be stated, and not merely annexed as an exhibit.

As to the allegations concerning the contracts, the motions must be allowed. In pleadings in actions at law there are no such things as exhibits. If a party desires to complain upon or plead a writing he must state it in his complaint or plea according to its tenor or legal effect. Such has always been the ruling

and practice in this court.

§ 339. Where, under a contract, there are several stipulations, breaches of more than one are separate causes of action.

As to the allegations numbered six, they should have been pleaded, not as "a further breach" of the contract, but as a separate and further cause of action. The practice of assigning more than one breach in the same count or statement of a cause of action, prior to the code, was permitted only in covenant upon a deed, and by statute in debt upon a bond with a condition, or to

secure covenants. When an ordinary contract contains various substantive and independent provisions- as, in this case, to pay for labor furnished and to furnish transportation to laborers - if there is a breach or failure to perform more than one of the stipulations there are distinct causes of action, requiring different proofs, and which may admit of different defenses, and therefore should be stated separately. This cause of action, not being pleaded separately, is liable to be stricken out on motion. Or. Code, 163.

340. Special damage must be alleged.

But these allegations are not liable to be stricken out upon the ground assigned in the motion, as being "immaterial and irrelevant." True, no special damage could be proven or recovered under them, because no facts showing such damage are stated in them, as that the plaintiffs, by reason of such failure, were compelled to and did furnish such transportation and pay for the same so much. Still the allegations contain an averment of a breach of the respective contracts, for which, if found true, the plaintiffs would be entitled to recover nominal damages. So much of the motions is denied.

BIDWELL v. CONNECTICUT MUTUAL LIFE INSURANCE COMPANY.

(Circuit Court for California: 3 Sawyer, 261, 262. 1874.)

Opinion by SAWYER, J.

STATEMENT OF FACTS.- Action upon a life insurance policy. The complaint contains a copy of the policy, but does not set out, either in hæc verba or in substance, the "proposals, answers and declarations" made by the applicant upon which the policy was issued.

§ 341. Where the "proposals, declarations," etc., are made part of the policy they must be set out in the declaration.

The policy set out contains the following clause: "And it is also understood and agreed to be the true intent and meaning hereof, that if the proposals, answers and declarations made by the said Alanson C. Bidwell, and bearing date the 15th day of November, 1866, and which are hereby made part and parcel of this policy as fully as if herein recited, and upon the faith of which this agreement is made, shall be found in any respect untrue, then and in such case this policy shall be null and void." The defendant demurs on the ground that the complaint is uncertain and insufficient, it appearing upon its face that the entire contract is not set out. I think this point well taken. It is well settled that, under the provision of the policy cited, the proposals, etc., are not mere representations made as inducement to enter into a contract, but are warranties and a part of the contract itself. Miles v. Conn. M. L. Ins. Co., 3 Gray, 580; 1 Big., 173; Ryan v. World Mut. Life Ins. Co., 4 Ins. Law Jour., 37; Campbell v. N. E. Mut. Ins. Co., 98 Mass., 381; Tibbitts v. Home Mut. Ins. Co., 1 Allen, 305; McLoon v. Conn. Mut. Ins. Co., 100 Mass., 472; Kelsey v. Mon. Life Ins. Co., 35 Conn., 235; Miller v. Mut. Ben. L. Ins. Co., 31 Ia., 227; Lycoming Mut. Ins. Co. v. Sailor, 16 Pa., 108; Rogers v. Charter Oak Life Ins. Co., MSS. Sup. Ct., Conn. The application being a part of the contract, it is necessary to set it out in the complaint, otherwise it does not appear what the contract is. Bobbitt v. The L. & L. & G. Ins. Co., 66 N. C., 70; 8 Am. R., 494; Steph. Pl., 132; Gould's Pl., ch. 4, sec. 28; 1 Ch. Pl., 236. The demurrer must be sustained, and it is so ordered.

UNITED STATES v. COLT.

(Circuit Court for Pennsylvania: Peters, C. C., 145-154. 1815.)

STATEMENT OF FACTS.- This was an action of debt brought upon an embargo bond in the district court in June, 1811, and the declaration demanded $20,000, which the defendant was alleged to owe and detain. It then recited the embargo law, laying the breach by the defendant, "whereby the United States are entitled to demand a sum not exceeding $20,000 and not less than $1,000, viz., $20,000," which it averred to be due to the plaintiffs and detained from them by the defendant. Upon nil debet pleaded the jury found a verdict for $4,000. The defendant took out a writ of error, returnable at April sessions, 1812, of the circuit court, and the case now came on for decision.

§ 342. Object of the action of debt.

Opinion by Washington, J.

The question in this case is whether the action is maintainable. The objection to the action of debt, where the penalty is uncertain, is that this action can only be brought to recover a specific sum of money, the amount of which is ascertained. It is said that the very sum demanded must be proved, and on a demand for thirty pounds you can no more recover twenty pounds than you can a horse on a demand for a cow. Blackstone says (3 Blackstone, Com., 154) that debt, in its legal acceptation, is a sum of money due by certain and express agreement, where the quantity is fixed and does not depend on any subsequent valuation to settle it; and, for non-payment, the proper remedy is the action of debt to recover the specific sum due. So, if I verbally agree to pay a certain price for certain goods and fail in the performance, this action lies, for this is a determinate contract. But if I agree for no special price debt will not lie, but only a special action on the case; and this action is now generally brought, except in cases of contracts under seal, in preference to the action of debt; because, in this latter action, the plaintiff must prove the whole debt he claims or recover nothing at all. For the debt is one single cause of action, fixed and determined, and which, if the proof varies from the claim, cannot be looked upon as the same contract of which performance is demanded. If I sue for thirty pounds I am not at liberty to prove a debt of twenty pounds and recover a verdict thereon, for I fail in the proof of that contract which my action has alleged to be specific and determinate. But indebitatus assumpsit is not brought to compel a specific performance of the contract, but is to recover damages for its non-performance, and, the damages being indeterminate, will adapt themselves to the truth of the case as it may be proved, for if any debt be proved it is sufficient.

The doctrine laid down by this writer appears to be much too general and unqualified, although, to a certain extent, it is unquestionably correct. Debt is certainly a sum of money due by contract, and it most frequently is due by a certain and express agreement, which also fixes the sum, independent of any extrinsic circumstances. But it is not essential that the contract should be express or that it should fix the precise amount of the sum to be paid. Debt may arise on an implied contract, as for the balance of an account stated; to recover back money which a bailiff has paid more than he had received, and in a variety of other cases where the law, by implication, raises a contract to pay. 3 Com. Dig., 365. The sum may not be fixed by the contract, but may depend upon something extrinsic which may be averred; as, a promise to pay so much money as plaintiff shall expend in repairing a ship, may be sued in