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An equitable estoppel might be pleaded in an action of ejectment at common law.18

The defense of mistake as to a material fact which induced the execution of a contract had to be tried on the equity side of the court, when it is not denied that the parties knew the nature of the paper which was executed,14 although a material provision of the contract was omitted by mutual mistake.15 A defense of fraud which related to the execution of the contract such as a misreading or mis-statement of its contents 16 or the surreptitious substitution of one paper for another 17 or the obtaining by some other trick or device an instrument which the pleader did not intend to give,18 before the statute, might be pleaded at common law. So it was held in some cases might be the defense of any fraudulent representation, when the instrument was not under seal.19 Where the contract was under seal,

13 Dickerson v. Colgrove, 100 U. But see Great Northern Ry. Co. S. 578, 582, 25 L. ed. 618, 620; v. Reid, C. C. A., 9th Ct., 245 Fed. Wehrman v. Conklin, 155 U. S. 327, 86, infra. 39 L. ed. 173; Marine Iron Works 15 Holbrook, Cabot & Rollins v. Wiess, C. C. A., 148 Fed. 145; Corp. v. Sperling, C. C. A., 239 Fed. Kirk v. Hamilton, 102 U. S. 68, 26 715. L. ed. 79; Nat. Nickel Co. v. Ne- 16 Union Pac. Ry. Co. v. Harris, vada Nickel Syndicate, C. C. A., 112 C. C. A., 63 Fed. 800; Drobney v. Fed. 44, 46; Cheatham v. Edgefield Lukens Iron & Steel Co., C. C. A., Mfg. Co., 131 Fed. 118. But see 204 Fed., 11; Standard Portland Mulqueen v. Schlichter Jute Cord Cement Co. v. Evans, C. C. A., 205 age Co., 108 Fed. 931; Highland Fed. 1; Cline v. Southern Ry. Co., Boy G. Min. Co. v. Strickley, C. C. 231 Fed. 238. A., 116 Fed. 852.

17 Standard Portland Cement Co. 14 U. S. v. Rosenthal, 210 Fed. v. Evans, C. C. A., 205 Fed. 1. 555; see Wellman v. Bethea, C. C. 18 Ibid, Union Pac. Ry. Co. v. . A., 228 Fed. 882, an action at law Harris, 158 U. S. 326, 15 Sup. Ct. for a personal injury. Held that it 843, 39 L. ed. 1003. was no objection to a release, offered 19 Wagner v. National License in evidence by the defendant, that Co., C. C. A., 90 Fed. 395; Such the plaintiff did not know when he v. Bank of State of N. Y., 127 Fed. signed it, that it was a general re- 450; American Sign Co. v. Electrolease, or that he had sustained any Lens Sign Co., 211 Fed. 196; Cophysical injury, there being no lumbia-Knickerbocker Trust Co. v. proof of fraud, misrepresentation or Abbot, C. C. A., 247 Fed. 833; Levi mental incompetency at the time of v. Mathews, C. C. A., 145 Fed. 152; its execution. Simpson v. Pennsyl- Contra, Maine N. W. Developinent vania R. Co., C. C. A., 159 Fed. 423. .Co. v. Northern Commercial Co., 213

before the statute it could only be set 'aside in a suit in equity,20 unless the plaintiff was deceived as to the contents of the paper which he executed, so that it was not in fact his deed. 21

It has been held that a general release of personal injuries resulting from an accident does not cover an injury, such as hernia, not in contemplation of the parties and then unknown to each.22

Ordinarily, a contract could not be attacked at law for fraud unless the plaintiff first returned or tendered upon the trial, the money received as the consideration for its execution ; 23 except in cases where it was conceded or indisputably proved, that he was entitled to as much as he had received.24 It has been held that this rule does not apply where the fraud consisted in a misrepresentation as to the nature of the paper executed.26 A tender upon the trial is in any event sufficient.26 In equity an

Fed: 103. See Hartshorn v. Day, 19 C. C. A., 113 Fed. 914; Price v., How. 211, 222, 15 L. ed. 605; Ivin- Connors, C. C. A., 146. Fed. 503; son v. Hutton, 98 U. S. 79, 25 L. ed. Heck v. Missouri Pac. Ry. Co., 147 66; George v. Tate, 102 U. S. 564, Fed. 775; North Chicago St. Ry. Co. 570, 26 L. ed. 232; Shampeau v. v. Chicago Union Traction Co., 150 Lumber Co., 42 Fed. 760; Johnson Fed. 612; Cook v. Fidelity & Dev. Granite Co., 53 Fed. 569; Van posit Co., C. C. A., 167 Fed. 95; dervelden v. Railroad Co., 61 Fed. Mahr v. Union Pac. Ry. Co., C. C. 54; Kosztelnik v. Iron Co., 91 Fed. A., 170 Fed. 699; Standard Port606; Hill v. Northern Pací Ry. Co., land Cement Co. v. Evans, C. C. A., C. C. A., 113 Fed. 914, 917.

205 Fed. 1; Maine N. W. Develop20 Whitcomb v. Shultz, C. C. A., ment Co. v. Northern Commercial 222 Fed. 268; Union Pac. R. Co. Co., 213 Fed. 103 ; Columbia Digger v. Syas, C. C. A., 246 Fed. 561; Co. v. Rector, 215 Fed. 619. Miller v. Williams, 258 Fed. 216. 24 Billings v. Aspen Mining & Contra dicta in Wagner v. National Smelting Co., C. C. A., 51 Fed. 338, License Co., C. C. A., 90 Fed. 395; 350; App. Div. (N. Y.) 286; Maine N. W. Development Co. v. Johnson v. Chicago M. & St. P. Ry. Northern Commercial Co., 213 Fed. Co., 224 Fed. 196, 199.

25 Muller v. Old Colony R. R. Co., 21 Maine N. W. Development Co. 127 Mass. 86; Cleary v. Municipal v. Northern Commercial Co., 213E ). L. Co., 47 N. Y. State Rep. Fed. 103, 104. But see Standard 172, aff'd 139 N. Y. 613; Herman Portland Cement Corporation v. v. Fitzgibbons Boiler Co., 136 App. Evans, C. C. A., 205 Fed. 1.

Div. (N. Y.) 286. 22 Great Northern Ry. Co. v. Reid, 26 Yuharsze v. Carnegie Steel Co., C. C. A., 245 Fed. 86.

C. C. A., 2nd Ct., June 8, 1915, in 23 Hill v. Northern Pac. Ry. Co., which the author was counsel.



offer to return the money was all that was required, 27 and where the return was impossible, a provision for its credit to the defendant might be made in the final decree.28 Where the fraud consisted in the conduct of an officer of a corporation in inducing its execution of a contract, in which he was interested, it was held that the contract was illegal as against public policy, and that such a defense was available at law.29 When by contract, payments were to be made upon the certificates of an architect or engineer the better opinion was, before the statute, , that such certificates could be attacked for fraud by a defense to an action at common law.30 They could not be attacked for a mistake except in equity.31 The defense of failure of consideration,82 subrogation ; 38 non-assignability,84 and it has been held champerty 35 could be pleaded at law.

$ 454h. Counterclaims and set-offs. Set-offs and counterclaims should be pleaded in accordance with the State practice.1

An equitable set-off can now be pleaded in an action at common law under the statute previously quoted. Before this enactment, the pleading of an equitable set-off was not allowed at common law; 8 but where the State practice so permitted, the

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21. & St. L. R. Co. v. Horst, 93 U. S. 291, 301, 23 L. ed. 898, 901; Phelps v. Oaks, 117 U, S. 236, 239.

3 Scott v. Armstrong, 146 U. S. 499, 36 L. ed. 1059.

defendant might plead as a set-off or counterclaim a cause of action at common law against the plaintiff, and obtain a favorable judgment for such excess as he could prove. In an action by the United States the defendant could not recover an affirmative judgment against the government on a counterclaim, although it may be determined that there is a balance due him.5

An allegation of citizenship or residence of either party contained in a plea of set-off may be taken as an admission.6

A plea of set-off which is defective in form, or which lacks an affidavit 8 may be cured by an amendment.

§ 454i. Pleadings in negligence cases. In action to recover damages for negligence when the plaintiff does not rely upon a Federal statute the State pleadings should follow the State practice 1 except as regards the allegations which show the Federal jurisdiction. When an act by the defendant, injurious to the plaintiff is set forth, a general allegation of negligence is sufficient ; 3 but when the negligence is specified the plaintiff cannot without amending his pleading recover upon any other ground 4 even it has been held under the presumption of res ipsa loquitor.5

It has been held: that the defense of contributory negligence must be pleaded if the State statute requires this; 6 that, where there is a mere general averment upon the subject, a motion to make the same more specific or definite and certain will be granted, when the State practice permits such motions as to any matter of special defense;? but that where the common law prevails, such a defense may be proved under the plea of the general issue. 8

4 Partridge v. Felix, Mut. L. I. Co., 15 Wall. 573, 21 L. ed. 229; Dushane v. Benedict, 120 U. S. 630, 30 L. ed. 810; Charnley v. Sibley, C. C. A., 73 Fed. 980; Arkwright Mills v. Aultman & Taylor Machin ery Co., 128 Fed. 195; Allegheny Valley Brick Co. v. C. W. Raymond Co., 219 Fed. 477. Contra, Jewett Car Co. v. Kirkpatrick, 107 Fed. 622.

5 U. S. v. Gillies, 144 Fed. 991.

6 Kawin & Co. v. American Colortype Co., C. C. A., 243 Fed. 317.

7 Bedford v. J. Henry Miller, ('. (. A., 212 Fed. 368.

8 Ibid.

$ 454i. 1 Gadonnex v. New Orleans Ry. Co., 128 Fed. 805; Hardy v. Chicago St. P. M. & O. Ry. Co., 172 Fed. 454; Patterson v. Jacksonville Traction Co., C. C. A., 213 Fed. 289.

2 Supra, § 454d.

3 Tatum v. Louisville & N. R. Co., C. C. A., 253 Fed. 888.

4 White v. Chicago G. W. R. Co., C. C. A., 246 Fed. 427.

6 Ibid.

6 Gadonnex v. New Orleans Ry. Co., 128 Fed. 805, 806; Hardy v. Chicago, St. P., M. & 0, Ry. Co., 172 Fed. 454.

When the acts or omissions constituting the contributory negligence are specified by the defendant he cannot defeat the plaintiff because of any other carelessness. 9

$ 454j. Pleading in actions under Federal Employers' Liability Act. A suit arises under the Federal Employers' Liability Act 1 where the complaint alleges and the proof establishes that the employee was engaged in interstate commerce when the injury occurred and that the occurrence was in the course thereof.2 A concession that the parties were engaged in interstate commerce at the time of the injury cannot give the court jurisdiction where the evidence shows the contrary.3 In such a case, the allegations concerning interstate commerce should be stricken out. In an action for the death of an employee of a railway company who was struck by an engine an allegation that the employer was engaged in interstate commerce at the time of the action does not sufficiently show that the engine was then so engaged.5

The complaint may be so drawn as to permit the plaintiff to recover under either the Federal or the State Liability Acts or under the common law as supplemented by other statutes of the State, whichever the evidence may permit. A complaint or declaration which refers to a State statute may by amendment bring the case within the Federal Employers' Liability Act when the allegations of negligence are the same.? A previous action

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9 American Car & Foundry Co. v. Uss., 211 Fed. 862.

$ 454j. 1 Act of April 22, 1908, ch, 149, 35 St. at L. 65, Comp. St. $$ 8657-8665; Central Vermont Ry. Co. v. White, 238 U. S. 577.

2 Grand Trunk Western Ry. Co. v. Lindsay, 233 U. S. 42.

4 Delaware, L. & W. R. Co..v. Yurkonis, 220 Fed. 429.

5 Illinois Central R. Co. v. Rogers, C. C. A., 221 Fed. 52.

6 Delaware, L. & W. R. Co. v. Yurkonis, 220 Fed. 429.

7 Mo. K. & T. Ry. Co. v. Wulf, 260 U. S. 570; Seaboard Airline Ry. v. Koennecke, 239 U. S. 352; Seaboard Airline Rv. v. Renn, 241 U. S. 290; Smith v. Atlantic ('oast

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