aver that they were understood by those who heard them, Id.; 20 Wis. 239, unless, perhaps, they were published in a place where such language is commonly used, W. 107. Such averment is not necessary when the words are published in English, for the word "publish" implies the presence of hearers, 51 Ind. 581. Where the special damages are the loss of customers or of the sale of property, it has been held that the petition should set out the names of such customers or persons who refused to purchase, or no cause of action is stated, 11 Abb. Pr. n. s. 388; 2 Barb. 530; 6 Neb. 254; but see L. R. 1 Ex. Div. 91; 3 Zabr. 402: 94 N. Y. 15. In charging adultery it must be averred that one of the parties was married at the time of the crime, 48 Vt. 65; see Bates Pl. 521. In charging perjury at a trial before a justice of the peace, it must be alleged that the justice had jurisdiction, and that the plaintiff was sworn to testify, but it need not be averred that his testimony was about a matter material to the issue, 50 Ind. 129. In charging injury to one in his vocation, it need not be averred that plaintiff was in receipt of emolument, as that he was a paid preacher, 27 O. S. 292, 295; but it must be alleged that the words were used "in reference to his profession," 50 Ga. 238, or of and concerning his trade, 31 Me. 321. In an action for slander of title, plaintiff must show title or interest in the property, 3 Taunt. 246; 60 Cal. 157; must aver inalice, 5 N. Y. 14; want of probable cause, 5 Kas. 141; 5 Barb. 297; see 3 Abb. Ct. App. 62; and allege special damages, 41 Barb. 186; and where the special damages are the loss of a sale or loan, the persons who refused to loan or purchase must be named, 1 Duer. 670; 5 Barb. 297. Lien, mechanic's. A full compliance with the statute must be shown, 30 Ark. 282. The petition should describe the property to be charged and allege that the defendant had an interest in it, 24 Wis. 563; that the materials were furnished for the building sought to be charged with the lien; it is not sufficient to aver that they were furnished to the contractor or owner and were used in the construction of the building, 73 Ind. 60; 24 Wis. 563; that the labor was performed under the contract, express or implied, 1 Mont. T. 224; that the contract was made with the owner or his agent, 35 Mo. 107; 24 Minn. 300; 27 Wis. 456, or owner or lessee, 27 Mich. 456 (and it is held an omission of this defect can not be cured by answer, Id.); that something was due for the services on which the lien was founded at the time the suit was commenced, 67 How. Pr. 130; and that the lien was filed within the time limited before the commencement of the action, 21 Ind. 344; 30 Ark. 682.

Liquor laws. 4357 provides that a party deprived of the usual means of support, etc., by or in consequence of the intoxication or the acts of an intoxicated person, may bring an action against the seller of the liquor causing the intoxication, the owner of the premises in which the liquor was sold, or the lessor having knowledge of its sale, 25 O. S. 352; 4 Rec. 670; and 24358 provides that notice to the seller, owner, etc., shall be given as a condition precedent to the maintenance of the action, see 42 0. S. 52. It is sufficient under these sections to set forth the statutory grounds in the petition, 21 O. S. 98. The defendants may be jointly, 40 O. S. 43, or severally liable, 31 O. S. 419. The action does not lie for causing death under 6134; 35 O. S. 85; 31 0. S.359. For pleading in criminal cases, see 3 O. S. 475; 4 Id. 467; 8 O. S. 391; 4 Id. 477, 487; 24 O. S. 175. Under the Scott Law, 80 v. 161; see 42 O. S. 218.

Malicious prosecution: The petition must aver that the prosecution was malicious, W. 725; 50 How. Pr. 105, want of probable cause therefor, 3 W. L. M. 324; 100 Mass. 195, and a termination of the prosecution in favor of the plaintiff, W. 725; 8 O. 8. 548, 550; see 20 0. 119. Special damages to be recovered must be set out with particularity, 60 Ill. 361, as lawyers' fees, 12 Wend. 64, loss of reputation, credit, or business, 78 Pa. St. 73. The action may be joined with one for slander, 15 O. S. 173, or false imprisonment, when arising out of the same transaction, 10 Hun 580, and may be changed by amendment to an action for false imprisonment, 14 O. S. 213, and vice versa, 3 Bull 1139. The burden of proof is on the plaintiff to show want of probable cause and malice, 103 Pa. St. 151. When there has been no arrest of the person or seizure of the property, and no special injury sustained, the action will not lie, 2 D. 391; 40 N. J. L. 252; 90 Pa. St. 259; see 9 O. 103, 104; 46 O. S. ; 21 Bull 372.

Master and servant. In an action by a servant against the master for injuries caused by the use of defective machinery or tools, he must allege in his petition that he was employed by the defendant, 20 Barb. 449; that the master had notice or knowledge of the defect or danger, or ought to have known, or that he would have discovered it had he exercised reasonable diligence or taken proper precaution, Bates Pl. 562; citing 48 Me. 113; 56 Barb. 151; 31 Ind. 174; that plaintiff was ignorant of the defect, and exercised due care and diligence in the use of machinery, etc., 5 O.S. 541; but see Negligence, infra; and where the action is for injuries caused by the negligence of a fellowservant, plaintiff must allege in his petition that defendant was negligent in selecting or retaining such servant after knowledge of his incompetency, 51 Cal. 116; 8 Kas. 658; 58 Ind. 26.

Money had and received. A form of petition under the common counts has been held good under the code, 7 N. Y. 476, as of money had and received by the defendant to and for the plaintiff's use, 29 Wis. 65; see 26 O. S. 127; that defendant is indebted to plaintiff, etc., for goods sold and delivered to him at his request, and that defendant has not paid, 32 Cal. 172. An allegation of a request or demand for the payment of the money, 63 Cal. 394, or of non-payment, 60 Ind. 188; 50 Cal. 520, though usual, is not required, but it is better to make it in the latter case, otherwise no breach is averred, Bates Pl. 121, 574. Under 84272, to recover back money lost at gambling, the petition should aver that the money was lost at gaming, paid or delivered to the defendant or otherwise received by him, 33 How. Pr. 262, and state the aggregate amount won, 17 O. S. 464.

Mortgage. Foreclosure. The petition must show that the debt secured by the mortgage is due and owing the plaintiff, 11 N. J. Eq. 27. Where a personal judgment is sought and the action is on the mortgage and the note secured by it, the plaintiff should aver that the defendant is indebted to him on the note, etc., setting forth or attaching a copy with the indorsements under 25086; that the defendant executed and delivered to him the mortgage to secure its payment, 14 Kas. 101, setting out a copy of the mortgage in substance, 65 Ind. 302 (it is not necessary to attach a copy; see Bates Pl. 579); and pray for a judgment for the amount due, 2 5021; 31 O. S. 80, and that the premises may be sold and the proceeds applied to the payment of the judg ment. It is not necessary to aver a record of the mortgage when

the action is against the original mortgagor, 13 How. Pr. 95; nor when defendant is a subsequent purchaser of the mortgaged premises, who is alleged in the petition to have assumed the payment of the mortgage debt as part of the purchase money, 63 Ind. 44. An averment that the note and mortgage were duly assigned to plaintiff is sufficient without setting out a copy of the assignment, 34 Ia. 452; see 4 O. 318; 1 C. S. C. R. 378; and as the assignment of the note carries the mortgage, 4 O. 318; 1 C. S. C. R. 378, where the petition shows an assignment of the debt, it need not show an assignment of the mortgage, 6 Kas. 395. Where the debt secured by the mortgage is payable on demand, demand before suit to foreclose need not be shown, 35 O. S. 357; but if the mortgage securing a demand note is to be void if the note is paid within sixty days after such demand," an averment of demand at least sixty days before suit to foreclose is necessary, Id. 343. The petition should state whether the other notes have been paid, and if not by whom they are held and the dates of their maturity, 9 Porter (Ala.) 79; and if the note has been renewed that fact must be stated, 31 Conn. 74. If there are infant defendants the petition should allege their interests, 6 How. Pr. 129. An averment that a party who is made a co-defendant with the mortgagor has, or claims to have, some interest in or lien upon the mortgaged premises, which, whatever it is, is subject to the lien of the plaintiff's mortgage, is sufficient without an averment of the character of the interest, 20 Kas. 624; 16 How. Pr. 424; but an averment in an action to foreclose against a person other than the mortgagor, that "he is now the owner of the land," is not sufficient to show that the mortgage constitutes a lien on the land as against him, since he may have acquired the land before the mortgage was executed, 89 Ind. 54. The petition in an action against an administrator to enforce the lien should aver the presentation of the mortgage claim for allowance, 46 Cal. 222. Plaintiff should pray for a judgment for the deficiency, if any shall exist, against a purchaser or assignor or guarantor of the mortgage who may be liable for the debt, 12 Abb. Pr. 331.

Mortgage. Redemption. The petition must show that plaintiff has an interest in the equity of redemption, 47 Mich. 28; and when other than the mortgagor, the nature and derivation of his title, 9 Mich. 465; that the plaintiff was not a party defendant in the foreclosure suit, 50 Cal. 549; and aver a readiness to pay or offer to pay whatever is found to be due, 60 Barb. 372; and where an accounting of rents is sought, allege that the plaintiff is ready and willing to redeem when the amount necessary to be paid therefor shall be ascertained, and intends so to do, and that he has demanded an accounting, which was refused, 87 Ind. 400.

Municipal corporation. When a municipal corporation is organized under a general law, the fact of its existence must be averred and proved, 62 Ind. 4; 43 Ia. 313. In Ohio such corporations are organized under general laws. A description in the petition of the defendant as a city is a sufficient averment that it is a municipal corporation, 25 O. S. 143, 154; but when it is desired to bring a city within a certain class, or as having a certain population at a certain census, it is necessary to aver that fact, 35 O. S. 319. As judicial notice is taken of the existence of counties, no averment of corporate existence is required, 1 Bates

Pl. 239. A city suing for a claim formerly due a village from which it has been advanced to such city will not be required on motion to set out in its petition the proceedings by which said village was advanced to a city, 1 C. C. R. 340. In an action against a city for injuries caused by defects or obstructions in its streets, the petition must allege notice or knowledge by the city of such defects or obstructions, or facts from which notice or know!edge can be reasonably inferred, 96 Ind. 51; 46 Ia. 567. Where the petition fails to aver that the corporation negligently caused the obstruction, or, not having caused the same, had actual notice of its existence and failed to remove it within a reasonable time; or that, in the absence of actual notice, such obstruction continued for such length of time prior to the injury that notice was fairly to be inferred, it is bad on demurrer, 2 C. C. R. 145; Id. 366. And in an action against a municipal corporation for injuries caused by falling on a sidewalk made slippery by accumulations of snow and ice, the petition must show that the eity had notice, actual or constructive, of the condition of the walk, and, having such notice, that it was its duty to remedy it, 44 O. S. 505; 16 Bull 453. Where by statute (3 2326) plaintiff must file a claim for damages with the corporation prior to bringing the action, such demand or claim must be averred in the petition as a condition precedent to bringing the action, 5 O. S. 523. In an action to enforce a street assessment, where the petition avers that the city council duly passed and published an ordinance, and that written notice thereof was caused by the city to be duly served, etc., it contains, in the absence of a motion to make more definite and certain and as against a general demurrer, a sufficient averment of the valid passage and publication of the resolution and proper service of a valid notice, 1 C. C. R. 90. In an action against a city for negligently changing the grade of a street, an allegation that the city "raised the grade," is equivalent to an allegation that the grade was raised in pursuance of an ordinance, since the city could only act in such matters by ordinance, 78 Mo. 107; and an allegation that it had before. fixed and established the grade as it was lawfully authorized to do," is a sufficient statement of its establishment without setting out the ordinance, 22 Ia. 590. 22 1777 and 1778 provide for the bringing of actions to restrain the misapplication of the funds of a municipal corporation or an abuse of its corporate powers, by the city solicitor, or, on his failure on written request, by a tax-payer in his own name on behalf of the corporation, 2 C. C. R. 237; 2 C. S. C. R. 44, 453. Where the petition shows that the solicitor is acting as attorney in his official capacity for a tax-payer in whose name the action is brought, it need not be averred that he had been requested in writing by the tax-payer to bring the action, 29 O. S. 291, and it is not necessary that the petition be signed by the city solicitor, 1 C. C. R. 340. In an action against a munícipal corporation to recover damages for injuries sustained from the discharge of a cannon in a public street by an assembly of disorderly persons, an allegation in the petition that the authorities of the corporation "had negligently and carelessly given permission to such persons to fire the cannon" may be construed, in view of the whole pleading, as an allegation that the authorities took no steps to prevent such firing, 42 O. S. 625.

Negligence. It is not necessary to set out in the petition the

facts constituting the negligence, 77 Mo. 232; 10 Minn. 418; 80 Ky. 82; 15 Fed. Rep. 588; 75 Mo. 295; nor the degree of negligence, 10 How. Pr. 97; 47 Ind. 368; but a bare allegation that defendant was negligent has been held not sufficient, 29 Ind. 426; and in an action against a railroad company for negligence in the management of its trains, it has been held that the petition should show in what such negligence and carelessness consisted, and not charge the same in general terms without disclosing any specific acts or omissions, 90 Ill. 425. So in an action against a municipal corporation for injuries sustained by a defective sidewalk, the better practice is to set out in the petition the dangerous character of the sidewalk, 2 C. C. R. 366. As a rule, however, a general allegation of negligence is sufficient without setting out the facts constituting it, 62 Ala. 494; 57 Ind. 297; 49 Mich. 380; 28 Minn. 69; 25 N. J. L. 381; and this is especially so where the facts constituting the negligence lie more properly in the knowledge of the defendant, 1 Sand. 89. Allegations of malice are not necessary and will be treated as surplusage, 24 Ia. 336; 45 Mo. 371. The plaintiff is not, in this state, required to allege in his petition that he was without fault "unless the other averments necessary to constitute a cause of action suggest the inference that he was guilty of contributory negligence," 40 O. S. 376; see 35 O. S. 627; 10 Bull 292. As to the sufficiency of averments of a petition in an action against a railroad company for injuries caused by the explosion of a torpedo negligently exposed upon its track and picked up by a child nine years of age, 45 O. S. 11; see 2 C. C. R. 504; 45 O. S. 470; 46 O. S. 283.

Nuisance. The petition should state the facts constituting the alleged nuisance, 3 O. S. 330; 11 O. S. 362, 365; though it is not necessary to detail all the particular injuries which result therefrom, 61 Mo. 359. Where the action is against one who continues but who did not create the nuisance, it should be averred that before the commencement of the action he had notice or knowledge of the existence of the nuisance, 51 N. Y. 573; 44 Me. 154; but a request for its abatement is not necessary, 51 N. Y. 573. Generally negligence need not be averred, 10 Am. Rep. 184; 2 N. Y. 159; though there are exceptions to this rule, 51 N. Y. 476; 68 Id. 283; 30 Vt. 610. Damages such as necessarily and naturally result from the injury need not be specially pleaded, 67 N. Y. 267, but damages which are the natural, though not the necessary, result of the act complained of must be set forth specially, 4 N. Y. 130; 21 Minn. 362; and when the alleged nuisance is a public one, special damages must be averred, 2 D. 516; see 23 O. S. 523. Fish brine exposed in uninclosed yard near a highway, petition stating no cause of action, 7 O. (Pt. 1) 216.

Partnership. A description of the firm as "a firm doing business under that name in the state of Ohio" is sufficient under 25011 without stating that it was formed for the purpose, etc., 2 C. S. C. R. 21. An assignment, by one partner, of the firm property in favor of a creditor of the firm made without authority of his co-partners is void, 29 O. S. 441; and if the assignment is so made with the authority or consent of the co-partner, it must affirmatively appear in the petition, or the failure to give such authority or consent satisfactorily explained, else the petition will be bad on demurrer, 6 Pac. L. Rep. 367. A surviving partner may sue for the personal property and effects of the co-partnership, 45 N. Y 786, and the petition in such action which