the joint promise alleged in issue.2 In an action upon a promissory note, executed in the firm name, denial of the execution of the note puts the partnership in issue. But where the complaint averred that the note was indorsed by the defendants as partners, it was held that an answer denying "the indorsement in the complaint alleged" did not put the partnership in issue.* In an action on the note of a partnership firm against two defendants, an answer by one that his co-defendant never was a member of the firm, and stating the names of the members of the firm, is good on demurrer. But an answer in such action by one that his copartner, without his consent, executed the note in the firm name, of which the plaintiff, at the time, had notice, is bad on demurrer; otherwise, if it be averred that the defendant, at the time of the execution of the note, did not consent and objected thereto, of which the plaintiff then had notice. If several makers of a promissory note are sued as copartners and makers, a defense by one of the makers that he was not a copartner with the other makers is immaterial, and no defense to the suit.8 In an action against a partnership, if one defendant sets up in answer that he was a limited partner only, the plaintiff may show that the statutory certificate as to payment of capital was false, in order to charge such defendant as a general partner. Illegality in the use of a firm name is a ground of defense, and must be affirmatively set up in the answer; 10 such a defense is not available under a general denial." In an action to recover the balance found due the plaintiff on dissolution of a partnership between him and the defendant, the answer, among other things, set forth the causes which prompted the defendant to dissolve the partnership, and the allegations in these respects were stricken out as irrelevant.12

1 Dessaint v. Elling, 31 Minn. 28%.

2 Fetz v. Clark, 5 Minn. 217. And see Irvine v. Myers, 4 Minn. 229. 3 Buck v. Smith, 2 Colo. 500.

4 Anable v. Conklin, 16 Abb. Pr. 286; 25 N. Y. 470.

5 Kamm v. Harker, 3 Oreg. 208. Compare Lefferts v. Silsby, 54 How. Pr. 193; Green v. Lippincott, 53 How. Pr. 33; Dickinson v. Vanderpoel, 2 Hun, 626; 5 Thomp. & C. 168.

6 Moffitt v. Roche, 92 Ind. 96. And see Sage v. Sherman, 2 N. Y. 417; Bank of Leadville v. Allen, 6 Colo. 594.

7 Moffitt v. Roche, 92 Ind. 96.

8 Duncan v. Randall, 2 Utah, 131. Compare Corning v. Haight, 1 Code R. 71

9 Sharp v. Hutchinson, 17 Jones & S. 50.

10 O'Toole v. Garvin, 1 Hun, 92; Lunt v. Lunt, 8 Abb. N. C. 76; Stoddart v. Key, 62 How. Pr. 137; Hennequin v. Butterfield, 11 Jones & S. 411.

11 Waldron v. Ham, N. Y. Daily Reg. Feb. 12, 1884; Abb. An. Dig. (1884) 269.

12 Coles v. Coles, 13 Jones & S. 633.

181. Penalties.—In an action for a penalty founded on a statute, the complaint need not set forth the particular statute violated, unless it be a statute not judicially noticed.' But allegations as to time, place, or circumstance, which are necessary to inform the party against whom recovery is sought of the nature and extent of his liability, are not dispensed with.2 Facts which constitute the offense must be specially set forth." The complaint must present a case strictly within the provisions of the statute, directly averring every essential fact, instead of leaving it to be gathered by argument or inference. And in pleading, reference to the statute is usual for the purpose of informing the defendant distinctly of the nature and character of the offense.5 In New York, a complaint in an action for a penalty for a violation of the excise law need not state the particular section giving the penalty claimed, but must state the name of the person to whom the illegal sale is charged to have been made. A municipal ordinance is not judicially noticed by the courts; and a complaint in an action for violating an ordinance of a

municipal corporation, to be sufficient, should set out the offense charged, and the substance of that part of the ordinance which has been violated, with a reference to the title, date, or section. Thus, a complaint to

recover a penalty for violation of a town ordinance must exhibit or copy so much of the ordinance as relates to the subject; 9 as where one section provided a penalty for selling liquor without a town license, while another made provisions for obtaining such license and the amount to be paid, both sections should be shown.10 Several penalties may be recovered in one suit and embraced in one count, if distinctly averred therein." But an action for a penalty, given by statute to any person injured, is an action on contract,12 and cannot be joined with an action in tort, as, for instance, an action to recover damages for illegally obstructing a navigable river. 13 It is, however, held to be unnecessary, in an action to recover a penalty given by statute, to show a failure to pay the penalty, and the complaint need not aver non-payment, as is required in an action on a contract.14 A defendant cannot, by demurrer, avail himself of a defense denying his violation of a municipal ordinance; 15 the averments of the complaint as to such violation, in the absence of an answer, must be taken as true.16

1 Abbott v. Railroad Co. 12 Abb. Pr. N. S. 465; Chapman ". Gates, 46 Barb. 313; 54 N. Y. 132; People v. Bull, 10 Jones & S. 19; Nellis v. Railroad Co. 30 N. Y. 505; People v. McCann, 67 N. Y. 506; Winooski v. Gokey, 49 Vt. 282; Hewett v. Harvey, 46 Mo. 368; McHarg v. Eastman, 35 How. Pr. 205; 7 Robt. 137.

2 Roediger v. Simmons, 14 Abb. Pr. N. S. 256, 262.

3 Bigelow v. Johnson, 13 Johns. 428; Bartlett v. Crozier, 17 Johns. 439; Collins v. King Co. 1 Wash. T. N. S. 416; Shockley v. Brown, 1 Wash. T. N. S. 463.

4 Haskins v. Alcott, 13 Ohio St. 210; State v. Railroad Co. 76 Me. 411.

5 Brown v. Harmon, 21 Barb. 508; Shaw v. Tobias, 3 N. Y. 188. 6 Kee McSweeny, 66 How. Pr. 447.

7 Clevenger v. Rushville, 90 Ind. 258, 260; Garvin v. Wells, 8 Iowa, 286; Winona v. Burke, 23 Minn. 254; Porter v. Waring, 69 N. Y. 250.

8 People v. Keteltas, 12 Hun, 65; Deitz v. City, 1 Colo. 323; Whitson v. Franklin, 34 Ind. 392; State v. Loragan, 40 Vt. 450; Fink v. Milwaukee, 17 Wis. 26.

9 Schwab v. City of Madison, 49 Ind. 329; Green v. Indianapolis, 25 Ind. 490.

10 Clevenger v. Rushville, 90 Ind. 258.

11 People v. McFadden, 13 Wend. 396; Allen v. Patterson, 7 N. Y. 476; Roediger v. Simmons, 14 Abb. Pr. N.S. 256, 261. And see Streeter v. Railroad Co. 40 Wis. 294; Grover v. Morris, 73 N. Y. 473.

12 See Bullard v. Bell, 1 Mason, 243.

13 Doughty v. Railroad Co. 78 N. C. 22. And see Logan v. Wallis, 76 N. C. 416; Wiles v. Suydam, 64 N. Y. 173.

14 Western Union Tel. Co. v. Young, 93 Ind. 118. 15 Conmissioners etc. v. Capeheart, 71 N. C. 156. 16 Commissioners etc. v. Capeheart, 71 N. C. 156.

992

182. Physician and surgeon. In an action for malpractice, where the defendant is declared against as a physician, proof that he held himself out as "a cancer doctor," and as having skill and experience in the treatment and cure of cancers, substantially supports the allegation;1 and proof that the defendant accepted the employment will sustain an averment that he was employed "at his special instance and request." The implied liability of a physician and surgeon, retained to treat a case professionally, extends no further in the absence of a special agreement than that he will indemnify his patient against any injurious consequences resulting from his want of the proper degree of skill, care, or diligence in the execution of his employment.3 And an allegation that the defendant contracted to perfect a cure can only be sustained by proof positive of an express promise. An allegation that the plaintiff employed the defendant as a physician, etc., "to set, dress, take care of, manage, and cure a certain broken bone of the thigh of the said plaintiff, and the said defendant then and there accepted and entered upon the said employment and business," was held not to contain a promise to cure. In an action against a surgeon, an allegation that injuries resulted from the

BOONE PLEAD.-30.

defendant's want of ordinary care and skill in the treatment of a fracture will not admit of proof that he gave assurances to the plaintiff that he possessed and would exercise extraordinary skill, and effect a cure; the plaintiff must recover, if at all, in accordance with his allegations.' Liability in cases of malpractice does not arise out of any contract or direct privity, but out of the duty which the law imposes upon the physician to avoid acts in their nature dangerous to the lives of others; and it need not, therefore, be stated by whom the defendant was employed. A complaint alleging that the defendants, being physicians and surgeons, were called on and requested, for a reasonable compensation, to set a broken arm of the plaintiff's son, and that they undertook the same, is not bad on demurrer for not showing who employed the defendants; 10 if uncertain in this respect, the proper remedy is by motion to have it made more specific."1

1 Musser v. Chase, 29 Ohio St. 577. 2 Musser v. Chase, 29 Ohio St. 577.

3 Craig . Chambers, 17 Ohio St. 253. Neb. 403; Gramm v. Boener, 56 Ind. 497;

And see O'Hara v. Wells, 14 Smothers v. Hanks, 34 Iowa, 286; Carpenter v. Blake, 2 Lans. 206; 60 Barb. 488; 50 N. Y. 696.

4 Grindle v. Rush, 7 Ohio, 462; O'Hara v. Wells, 14 Neb. 403.

5 Reynolds v. Graves, 3 Wis. 416. See also Hoopingarner v. Levy, 77 Ind. 455.

6 Goodwin v. Hersom, 65 Me. 223.

7 Goodwin v. Hersom, 65 Me. 223.

8 Thomas v. Winchester, 6 N. Y. 397; Norton v. Sewall, 106 Mass. 143.

9 1 Chitty Plead. 398; Staley v. Jameson, 46 Ind. 159.

10 Scudder v. Crossan, 43 Ind. 343.

11 Scudder v. Crossan, 43 Ind. 343. In an action by a husband for damages resulting to himself from injuries to his wife caused by the malpractice of a physician, damages for loss of service which appears necessarily to result from the nature of the injury may be recovered as part of the general damages, without being specially pleaded: Stone v. Evans, 32 Minn. 243.

2183. Pledge. If bonds are held by a broker as a pledge for the payment of advances made by him, and