the damage sustain to each other the relation of cause and effect, or at least that the one might have resulted directly from the other."

1 Chautauque County Bank v. White, 6 N. Y. 236; Libby v. Rosekrans, 55 Barb. 202; Butler v. Viele, 44 Barb. 166; Smith v. Sims, 77 Mo. 269; Darnell v. Rowland, 30 Ind. 342; West v. Wright, 98 Ind. 335; Bailey v. Ryder, 10 N. Y. 363.

2 Clark v. Dayton, 6 Neb. 192; Butler v. Viele, 44 Barb. 166; O'Kendon v. Barnes, 43 Iowa. 615; Mason v. Searles, 56 Iowa, 532; Leavenworth etc. R. R. Co. v. Douglass County, 18 Kan. 169; Mut. Loan etc. Assoc. v. Price, 19 Fla. 127. A complaint which alleges that the defendants "in concert did, by connivance, conspiracy, and combination, cheat and defraud the plaintiffs out of certain goods of" a specified value, does not state facts sufficient to constitute a cause of action: Cohn v. Goldman, 76 N. Y. 284.

3 Cummings v. Thompson, 18 Minn. 246; Cowen v. Toole, 31 Iowa, 513. And see Barber v. Morgan, 51 Barb. 116; Whittlesey v. Delaney, 73 N. Y. 571.

4 Sharp v. Mayor etc. 40 Barb. 256; 25 How. Pr. 389; Singleton v. Scott, 11 Iowa, 589; Whittlesey v. Delaney, 73 N. Y. 571.

5 McRae v. Battle, 69 N. C. 98.

6 Rasmussen v. McNight, Sup. Ct. Utah, 2 West C. Rep. 205. 7 Byard v. Holmes, 34 N. J. L. 296. And see Bremond v. McLean,

45 Tex. 10.

? 21. Allegation of demand.-In many cases a demand is necessary before bringing suit, and when this is so, a demand must be alleged in the complaint or petition and proved upon the trial. Thus, in an action for the detention of personal property which came lawfully into the defendant's possession, a demand before suit brought is necessary, and must be alleged. And if it be expressly agreed between parties to a contract that neither shall be liable for non-performance until after a demand for performance, the complaint in an action upon such liability must allege that the demand has been made. And where the demand is required to be made in a particular form, the complaint must allege that it was made in the form required. If a demand is necessary to fix the liability of sureties on an undertaking, it is parcel of the contract, and must be made before the commencement of an action for the breach of

the undertaking, and in the action itself it must be averred and proved. As a general rule, a demand of the principal debtor is necessary to render the guarantor of the debt liable, and in an action against the latter a demand must be alleged. In an action on a promissory note, payable at a particular place, it is not necessary to aver or prove a demand of payment, as against the maker. A demand made of one of two joint debtors is a demand on both, and may be so pleaded.

1 Moore v. Hudson River R. R. Co. 12 Barb. 156; State v. Cowles, 5 Ohio St. 87; Greenwood v. Curtis, 6 Mass. 634; Boutwell v. O'Keefe, 32 Barb. 434. And see Bush v. Stephens, 24 Wend. 256; Blood v. Goodrich, 9 Wend. 63; Gibbs v. Stone, 7 Mon. B. 302; Williams v. Germaine, 7 Barn. & C. 468. No averment of demand is necessary in an action on a note payable on demand: Hirst v. Brooks, 50 Barb. 334; Howland v. Edmonds, 24 N. Y. 307; Herrick. Woolverton, 41 N. Y. 581; Pierce v. Fothergill, 2 Bing. N. C. 167. Nor in an action upon contract to pay money absolutely: East River Bank v. Rogers, 7 Bosw. 493; Lake Ontario etc. R. R. Co. v. Mason, 16 N. Y. 451.

2 Baird v. Walker, 12 Barb. 298; Powers v. Bassford, 19 How. Pr. 309; Gillett v. Roberts, 57 N. Y. 28; New York Car Oil Co. v. Richmond, 19 How. Pr. 505; 10 Abb. Pr. 185; Simmons v. Lyons, 55 N. Y. 671; Tripp v. Pulver, 2 Hun, 511.

3 Ferner v. Williams, 14 Abb. Pr. 215; 37 Barb. 9. And see Howard v. France, 43 N. Y. 593; Smith v. Tiffany, 36 Barb. 23.

4 Carpenter v. Brown, 6 Barb. 147; Bush v. Stephens, 24 Wend. 256; Lutweller v. Linnell, 12 Barb. 512.

5 Morgan v. Menzies, Sup. Ct. Cal. 2 West C. Rep. 882. And see S. C. before, 60 Cal. 341.

6 Milliken v. Byerly, 6 How. Pr. 214. And see Douglass v. Rathbone, 5 Hill, 143; Nelson v. Bostwick, 5 Hill, 37.

7 Hill v. Place, 5 Abb. Pr. N. S. 18; 36 How. Pr. 26; 48 N. Y. 520; 7 Robt. 389. But in order to charge the indorser upon a note payable at a particular place, the complaint must contain an averment to the effect that payment was demanded at such place: Ferner v. Williams, 14 Abb. Pr. 215. But compare Cutler v. Ainsworth, 21 Wis. 381.

8 Baird v. Walker, 12 Barb. 298; McFarland v. Crary, 8 Cowen, 253; Geisler v. Acosta, 9 N. Y. 227; Griswold v. Plumb, 13 Mass. 298.

22. Performance of conditions.-Where the plaintiff's right of action depends upon the performance by him of a condition precedent, he is bound to aver a performance, or some excuse for the non-performance must be duly pleaded. If an excuse is relied upon, he should aver his readiness to perform, and the particular cir

cumstances constituting such excuse should be set forth. But in pleading the performance of a condition precedent under the Code system, it is sufficient to allege generally that the party has performed all the conditions on his part;3 as, in an action on a note, that payment thereof "was duly demanded at maturity," that it was "duly protested for non-payment," and that "notice thereof was duly given." But if a party undertakes to make a specific allegation of performance, he must make it with the particularity and strictness required by the rules of the common law. In case of mutual conditions, to be performed by the parties at the same time, it is not sufficient for the plaintiff to aver a readiness to perform on his part and a neglect or refusal of the defendant to perform, but he must aver either actual performance or a tender of performance on his part.6 Though it is unnecessary to make a tender of performance when it would be wholly nugatory."

1 Oakley v. Morton, 11 N. Y. 25; Wolfe v. Howes, 10 N. Y. 197; Webb v. Smith, 6 Colo. 365. And see Ferris v. Purdy, 10 Johns. 359; Robb v. Montgomery, 20 Johns. 15; Fickett v. Brice, 22 How. Pr. 194 ; Jennings v. Moss, 4 Tex. 452; Clendennan v. Paulsel, 3 Mo. 230; Harrison v. Taylor, 3 Marsh. A. K. 168; Wilcox v. Cohn, 5 Blatchf. 346; Lightfoot v. Cole, 1 Wis. 26; Buford v. N. Y. Life Ins. Co. 5 Oreg. 334. 2 Oakley v. Morton, 11 N. Y. 25; Smith v. Brown, 17 Barb. 431; Home Ins. Co. v. Duke, 43 Ind. 418; Cornwell v. Haight, 21 N. Y. 462. 3 Home Ins. Co. v. Duke, 43 Ind. 418; Lowry v. Megee, 52 Ind. 107; Crawford v. Satterfield, 27 Ohio St. 421; Smith v. Railroad Co. 19 Wis. 326; Insurance Co. v. McGookey, 33 Ohio St. 555; Schobacher v. Germantown etc. Ins. Co. 59 Wis. 86. And see Ferrer v. Home Mut. Ins. Co. 47 Cal. 416; Etna Ins. Co. v. Kittles, 81 Ind. 96; Richardson v. North Mo. Ins. Co. 57 Mo. 413.

4 Frankfort Bank v. Countryman, 11 Wis. 398; Davis v. Barron, 13 Wis. 227. Setting out performance of a condition precedent in the language of the condition is sufficient: Smith v. Lloyd, 16 Gratt.

295.

5 Home Ins. Co. v. Duke, 43 Ind. 418. And see Hatch v. Peet, 23 Barb. 575.

6 Thomas v. Wickmann, 1 Daly, 58; Williams v. Healey, 3 Denio, 363; Beecher v. Conradt, 13 N. Y. 108. See Van Schaick v. Winne, 16 Barb. 89; Webb v. Smith, 6 Colo. 365; Delaware etc. Canal Co. r. Penn. Coal Co. 50 N. Y. 250; Smith v. Brown, 17 Barb 431; St. Paul Div. Sons of Temperance v. Brown, 9 Minn. 157; Griffiths v. Hender

son, 49 Cal. 566; Lewis v. Davis, 21 Ark. 237; Sorrells v. McHenry, 38 Ark. 127.

7 Karker v. Haverly, 50 Barb. 79; Read v. Lambert, 10 Abb. Pr. N. S. 428.

23. Averment of notice. The general rule of plead ing, as it respects the necessity of averring notice, is that when the matter alleged in the pleading is to be considered as lying more properly in the knowledge of the party pleading than of the adverse party, notice thereof should be averred; but it is otherwise where both parties are supposed to be alike cognizant of the fact. If, however, notice is necessary, either by the terms or nature of the contract, is of the gist of the action, and must be specially averred, and without such averment no complete right of action can appear.3 And if the plaintiff relies upon facts which excuse notice, he must state such facts in his complaint or petition. Evidence of facts excusing notice is not admissible under a bare averment of due notice.5

1 Bush v. Critchfield, 4 Ohio, 103; Lent v. Padelford, 10 Mass. 238; Carlisle v. Cahawba etc. R. R. Co. 4 Ala. 70; Slacum v. Pomeroy, 6 Cranch, 221; Cole v. Jessup, 2 Barb. 309.

2 Cole v. Jessup, 2 Barb. 309; Carlisle v. Cahawba etc. R. R. Co. 4 Ala. 70; Clough v. Hoffman, 5 Wend. 499.

3 Watson v. Walker, 23 N. H. 471.

4 Garvey v. Fowler, 4 Sand. 665; Shultz v. Depuy, 3 Abb. Pr. 252. See Firth v. Thrush, 8 Barn. & C. 387.

5 Garvey v. Fowler, 4 Sand. 665. Compare Purchase v. Mattison, 7 Duer, 587.

24. Averment of knowledge or scienter.-In some cases, knowledge in the defendant constitutes the gist of the action, and must be averred. Thus, the owner of a domestic animal is not in general liable in an action for an injury committed by such animal, unless it be alleged and shown that he had notice or knowledge of its vicious propensity. But as to animals of a wild and ferocious nature, such as lions, tigers, leopards, panthers, bears, and the like, the person who keeps

them is liable for any damage they may do, without any allegation of knowledge of their ferocity, on the ground that by nature such animals are fierce and dangerous. So, if any animal commits an injury while. trespassing upon the land of another, the owner of the animal is liable without alleging or proving a scienter.1 In an action for a deceit in the sale of a chattel, where the fraud is the gist of the action, if there is no evidence of a scienter, the action cannot be sustained.5 But in an action for a breach of absolute warranty, it is unnecessary to allege a scienter, as upon the representation of a warranty the party is bound to accountability for an unsoundness in the thing warranted, whether he knew it or not. Allegations of knowledge, when necessary, should be positively and distinctly made;7 but an allegation that the defendant "falsely and fraudulently represented" is held to sufficiently import a scienter.8

1 Vrooman v. Lawyer, 13 Johns. 339; Tifft v. Tifft, 4 Denio, 175; Smith v. Causey, 22 Ala. 568; Dearth v. Baker, 22 Wis. 73; Hubbard v. Russell, 24 Barb. 404.

2 Fairchild v. Bentley, 30 Barb. 147; Earl v. Van Alstine, 8 Barb. 630; Laverone v. Mangianti, 41 Cal. 138; 10 Am. Rep. 269; Partlow v. Haggarty, 35 Ind. 178; Wormley r. Gregg, 65 Ill. 251; Van Leuven v. Lyke, 1 N. Y. 515; Worth v. Gilling, Law R. 2 C. P. 1.

3 Van Leuven v. Lyke, 1 N. Y. 515; Scribner v. Kelley, 38 Barb. 14. 4 Van Leuven v. Lyke, 1 N. Y. 515; Fairchild v. Bentley, 30 Barb. 147; Dickson v. McCoy, 39 N. Y. 401; Decker v. Gammon, 44 Me. 322; Dunckle v. Kocker, 11 Barb. 387.

5 Moore . Noble, 53 Barb. 425; 36 How. Pr. 385. And see Lamb v. Kelsey, 54 N. Y. 645; Weed v. Case, 55 Barb. 534.

6 Moore v. Noble, 53 Barb. 425; 36 How. Pr. 385. But see Mahurin v. Harding, 28 N. H. 128.

7 See Spencer v. Southwick, 9 Johns. 314; Zabriskie v. Smith, 13 N. Y. 322.

8 Thomas v. Beebe, 25 N. Y. 224. And see Eviston v. Cramer, 47 Wis. 659; Browne v. Moore, 32 Mich. 254; Mead v. Mali, 25 Barb. 578; 15 How. Pr. 347.

25. Averment of title or ownership.-The plaintiff's title to or ownership of the claim in suit must in general be alleged.1 Thus, in an action to recover the pos