14 ally. An allegation in a complaint on a special taxbill, that the contract for street improvement, under which it was issued, was " duly awarded" by certain officers having the power of awarding contracts for public works, is sufficient, and dispenses with the necessity of stating the facts which authorized them to make the award.15 It is said that no fixed rule can be laid down which will embrace every character of tort for which a municipal corporation is liable, and all that can be done with safety is to determine each case on its own facts as it arises; 16 and it is the duty of the pleader to set forth the special facts on which the liability in the particular case is claimed. Such corporation has no right to construct a ditch in a manner to collect surface water into a channel and pour it upon lands where it is not accustomed to run, and in a complaint for such injury it is not necessary to aver that the plaintiff was without fault; 18 an averment that the plaintiff was without fault is not necessary in a case of trespass, but only where the issue is solely a question of negligence.19 An action in form for money had and received is maintainable against a town, to recover money of another wrongfully taken by it, and applied to its own use.20 To state a cause of action against a school district for money "paid, laid out, and expended" for its use, and at its request, facts must be averred which show that the supposed indebtedness was such as the district could lawfully incur.21 And a complaint on a contract by a town for building a bridge, which does not aver that the contract was executed by legislative authority, is insufficient."2 1 O'Donald v. Evansville R. R. Co. 14 Ind. 259; Stier v. Oskaloosa, 41 Iowa, 353. See Bolton v. Cleveland, 35 Ohio St. 319. 2 Smith v. City of Janesville, 52 Wis. 680. And see Stultz v. State, 65 Ind. 492; People v. Potter, 35 Cal. 110; Case v. Mayor etc. 30 Ala. 538. 3 Prell v. Mc Donald, 7 Kan. 426; Sipe v. Holliday, 62 Ind. 4; Fauntleroy v. Hannibal, 1 Dili, 118; Hard v. City of Decorah, 43 Iowa, 313. 4 Hard v. City of Decorah, 43 Iowa, 313. 5 Harvey v. Village of Little Falls, 19 N. Y. Week. Dig. 48. 6 Cole v. President and Trustees etc. 57 Wis. 110. 7 Mackenzie v. Board of School Trustees, 72 Ind. 189. And see Indianapolis Sun Co. v. Horrell, 53 Ind. 527; Northwestern Confer-ence v. Myers, 36 Ind. 375. 8 Stier v. City of Oskaloosa, 41 Iowa, 353; Haire v. City of Kansas,. 76 Mo. 438. 9 Mack v. City of Salem, 6 Oreg. 275; Turner v. City of Indianapolis, 96 Ind. 51; Barnes v. Town of Newton, 46 Iowa, 567; Barstow v. Berlin, 34 Wis. 357. 10 Town of Spiceland v. Alier, 98 Ind. 467; Town of Elkhart v. Ritter, 66 Ind. 136. Compare Board etc. v. Brown, 89 Ind. 48; Board etc. v. Bacon, 96 Ind. 31. 11 Fenton v. Salt Lake County, 3 Utah, 423; 3 West C. Rep. 263; Rhoda v. Alameda County, 52 Cal. 350; Schroeder v. Colbert County,. 66 Ala. 137. And see Yolo County v. Sacramento, 36 Cal. 193; Ernst v. Kunkle, 5 Ohio St. 523; City of Atchison v. King, 9 Kan. 550 ;Jaquish v. Town of Ithaca, 36 Wis. 108; Collins v. King County, 1 Wash. T. 416; Chicago etc. Railw. Co. v. Town of Langlade, 55 Wis. 116. In an action ex delicto against a city, it is not necessary to allege in the complaint that the claim has been presented to the common council for audit, as required by the city charter: Nagle v. City of Buffalo, 20 N. Y. Week. Dig. 214. 12 Werth v. City of Springfield, 78 Mo. 107. And see Foster v. City of St. Louis, 71 Mo. 157; Wegmann v. City of Jefferson, 61 Mo. 55. 13 City of Kansas v. Johnson, 78 Mo. 661. 14 Satchell v. Doram, 4 Ohio St. 542. 15 Culligan v. Studebaker, 67 Mo. 372. 16 See Richmond v. Long, 17 Gratt. 375; Lloyd v. Mayor etc. 5 N. Y. 369; Hill v. Boston, 122 Mass. 344. 17 Conway v. City of Beaumont, 61 Tex. 10. 18 City of North Vernon v. Voegler, 89 Ind. 77. And see Weis v. City of Madison, 75 Ind. 241; 39 Am. Rep. 135. 19 Roll v. City of Indianapolis, 52 Ind. 547. And see Murphy v. City of Indianapolis, 83 Ind. 76. The rule that a master is not liable to a servant for an injury resulting from the negligence of a fellow servant is not applicable to a suit against a municipal corporation: Turner v. Indianapolis, 96 Ind. 51. 20 Horn v. Town of New Lots, 83 N. Y. 100. And see Hathaway v. Cincinnatus, 62 N. Y. 434. A town must be sued by its corporate name, not in the name of its officers: Young v. Barden, 90 N. C. 424. But it was held that town supervisors, and not the town, are properly made parties defendant to a proceeding to enjoin the illegal removal of a fence from the plaintiff's land: Uren v. Walsh, 57 Wis. 98. 21 School District No. 16 v. School District No. 9, 12 Neb. 241. 22 Donnelly v. Town of Ossining, 18 Hun, 352. Where materials supplied to a municipal corporation for a public work are required by law to be furnished by contract made on advertisement for bids, recovery therefor must be upon such a contract, and cannot be had on the ground of quantum meruit: Bigler v. Mayor etc. 5 Abb. N. C. 51. 173. Municipal corporation-Answer. - The objection that a claim or demand has never been presented to the common council for allowance before bringing an action thereon, as required by the city charter, must be taken by demurrer or answer, otherwise it is waived.1 Where, in an action against a municipal corporation, the proper officers answer for it, the answer, though informal, must be taken as that of the defendant.2 Where a contract, alleged to have been made by a city, was executed by its mayor, the plea of non est factum need not be sworn to by the mayor;3 in such a case, where the act of the mayor is questioned, the plea is properly sworn to by members of the common council, and an affidavit made by them to the best of their knowledge and belief is sufficient. In an action by a board of county commissioners upon a promissory note, and to foreclose a mortgage on real estate given to secure the payment of the note, both executed to the plaintiff, an answer by the mortgagor alleging that the consideration for the note was an illegal, unauthorized loan to him, by the plaintiff, of a sum of money belonging to the "court-house fund" of such county, is insufficient. That a city assessment was vacated on certiorari before it could be collected is a sufficient answer to an allegation of want of due diligence in collecting it." 1 Sheel v. City of Appleton, 49 Wis. 125. 2 School District v. Carson, 10 Kan. 238. 3 Hitchcock v. City of Galveston, 3 Woods, 287. 4 Hitchcock v. City of Galveston, 3 Woods, 287. 5 Sturgeon v. Board of Commissoiners, 65 Ind. 302. 6 Flemming . Hoboken, 40 N. J. L. 270. And see Knapp v. Hoboken, 39 N. J. L. 394. ? 174. Negligence — Complaint. — In an action founded upon negligence, it is not necessary for the plaintiff, in his complaint or petition, to set out the facts constitut ing the negligence,1 nor need the degree of negligence be averred.2 An allegation specifying the act, the doing of which caused the injury, and averring generally that it was negligently and carelessly done, states a cause of action, although it be not apparent from the complaint how the injury resulted from the negligence alleged. Or if the facts stated show negligence, this is sufficient without alleging that the act was negligently done. And where negligence is averred in general terms, without stating the specific facts constituting it, objections that such averment is defective or uncertain cannot be made or presented by a demurrer for the want of sufficient facts, but only by a motion to make more specific.5 In an action against a corporation by one of its employees for damages for injuries sustained by reason of the negligence of the corporation, an allegation that charges the negligence to be that of the defendant is sufficient. Where the action was against a railroad company, and the complaint alleged that the obstruction on the track which caused the injury complained of was on the track by the negligence of the company, and that the deceased was at the time in the discharge of his duty, it was held that a demurrer would not lie. In an action against a telegraph company for negligently failing to deliver messages, general allegations in the complaint of a vague and indefinite character as to the employment of an incompetent operator by the company, when disconnected with any specific statement of facts showing acts of negligence resulting in loss, will not be deemed sufficient to support a claim for exemplary damages. Allegations of malice in actions for negligence are not necessary, and will be treated as surplusage. So, according to many decisions, what is known as "contributory negligence" is a defense, and in an action to recover damages for 8 negligence, the plaintiff need not aver in his complaint that his own negligence did not contribute to the result.10 But according to other decisions, such averment is a part of the plaintiff's case, and a complaint for negligence, which does not show the absence of negligence by the plaintiff contributing to the injury, is held bad on demurrer.11 Thus, in an action against a railroad company for damages to the plaintiff's property caused by fire escaping from the defendant's locomotives, it is held that the complaint should not only allege negligence on the part of the defendant, but also that the plaintiff was without negligence.12 But an averment in a complaint, that the plaintiff was without any fault, sufficiently negatives contributory negligence on his part, unless it clearly appears otherwise from the specific facts stated.13 And in a complaint for an injury not resulting from negligence, it is not necessary to aver that there was no negligence by the plaintiff.1 In Ohio, it is not necessary to allege in the petition that the injury was caused without the fault or negligence of the plaintiff, unless the other averments nccessary to state a cause of action suggest the inference that the plaintiff may have been guilty of contributory negligence.15 When, in an action for damages for injuries received, the complaint shows that the proximate cause of the injury was the plaintiff's own act, it further devolves upon him to allege and prove that in thus acting he exercised that degree of care and prudence that a reasonable person would have used in like circumstances; 16 in other words, that he was not guilty of contributory negligence." A complaint in an action against an attorney, to recover damages resulting from the ignorance and negligence of the attorney, need not show that the plaintiff was without fault.18 In an action against a county for negligently failing to |