18. Demand-Place.-As against a maker or acceptor of a note drawn payable at a particular bank or place, it is not necessary to aver that a demand was made at the place specified: Silver v. Henderson, 3 McLean, 165; Payson v. Whitcomb, 15 Pick. 212. But with the indorser the rule is different: United States Bank v. Smith, 11 Wheat. 171.

19. Demand Time. Where a note is payable in installments due at different times, and demand on the maker is not made till the last installment falls due, and then demand is made for the whole amount, the demand is good for the purpose of charging the indorser for the last installment: Eastman v. Turman, 24 Cal. 379.

20. Indorsement.-If a person who is not a party to a promissory note indorse his name upon it in blank, with intent to give it credit, the holder may write over it an engagement to pay it in case of insolvency of the maker, and if such insolvency be shown no allegation of demand or notice is necessary: Offut v. Hall, 1 Cranch, 504; Id. 572. A parol agreement between two indorsers at the time of indorsement, to divide the loss between them in the event of non-payment, is a collateral agreement, founded on sufficient consideration, and will support an action: Phillips v. Preston, 5 How. U. S. 278. Payment of a note by an indorser after protest, is a good consideration for an assumpsit on the part of the maker, for the note, with cost of protest: Morgan v. Reintzel, 7 Cranch, 273.

21. Execution.-The general rule of law requiring proof of the title of the holders of a note, may be modified by a rule of court dispensing with proof of the execution of the note, unless the party shall annex to his plea an affidavit that the note was not executed by him: Mills v. Bank of United States, 11 Wheat. 431; see Cal. Code C. P., sec. 447.

22. Foreign Coin Note.—Where a note is payable in foreign coin, the value of such coin must be averred: United States v. Hardyman, 13 Pet. 176; see sec. 3238, Civil Code. For pleading note in a foreign language, see note 12, p. 400.

23. Forms of Notes.-A written promise to pay to "A. B.," without adding or order," or or bearer," is a promissory note within the statute: Burchell v. Slocock, 2 Ld. Raym. 1545; Smith v. Kendall, 6 T. R. 123; Downing v. Blackenstoes, 3 Cai. 137; Goshen & Minisink Turnpike Co. v. Hurtin, 9 Johns. 217; but is not negotiable under the Civil Code of California. An instrument in the following form: "Troy, August 4, 1846. I hereby agree

to pay Miss A. Y. twenty dollars per month during her natural life, for her attention to my son J. S. M. [Signed] B. M."-is not a promissory note: Spear v. Downing, 12 Abb. Pr. 437. Such an instrument expresses no consideration, since it affords no presumption that the services referred to were rendered in pursuance of a previous request of the promisor, or that they were beneficial to him: Id. On a promise to pay as soon as able," a judgment and execution are the best test of defendant's ability to pay: Cecil v. Welch, 2 Bush. (Ky.) 168.

66

24. Indebtedness.-The statute makes a promissory note prima facie evidence of indebtedness, though no consideration be expressed: Stewart v. Street, 10 Cal. 372. And it is not necessary to add an averment that the defendant is indebted: Connecticut Bank v. Smith, 9 Abb. Pr. 168.

25. Interest.—If the holder of a promissory note fill in the rate of interest left blank by the maker, he can collect only legal interest; but an inno

cent holder from him may collect the interest as filled in: Fisher v. Dennis, 6 Cal. 577. Interest need not be averred. It can be recovered as damages: Chinn v. Hamilton, Hempst. 438. The filling of a blank with the rate of interest does not thereby vitiate the note: Fisher v. Dennis, 6 Cal. 577; Visher v. Webster, 8 Id. 109; see Humphreys v. Crane, 5 Id. 173; see ante, Bills of Exchange, note 2. If the original note offered in evidence contains an abbreviation for the word "administratrix," and specifies the rate of interest in figures only, and the copy in the complaint gives the word in full and states the rate of interest in words as well as figures, the variance is immaterial: Corcoran v. Doll, 32 Cal. 82.

26. Legal Effect.-A note may be set out according to its legal effect: Drake v. Fisher, 2 McLean, 69; Spaulding v. Evans, Id. 139; compare Turner v. White, 4 Cranch C. Ct. 465. The difference between a note payable on a certain day, and one payable on or before such a day, is material when described according to its legal effect: Kikindal v. Mitchell, 2 McLean, 402. A complaint pleading a note according to its legal effect must state a payee, otherwise it seems it is demurrable: White v. Joy, 13 N. Y. 83; see note 19, p. 401.

27. Liability of Maker.-The maker is bound by the contract which he signs, whatever his motive or purpose in signing it may be, and cannot vary the legal effect of his obligation by parol: Aud v. Magruder, 10 Cal. 282. A promissory note is neither an account, unliquidated demand, nor a thing in action not arising out of contract: Priest v. Bounds, 25 Cal. 188.

28. Lost Paper.-In case of the loss or destruction of negotiable paper, as a note or certificate of deposit, the plaintiff cannot maintain an action without first indemnifying the maker against all future claims upon it: Welton v. Adams, 4 Cal. 37; Price v. Dunlap, 5 Id. 483. And no distinction exists between a note destroyed and one lost; but in either case a bond of indemnity need not be tendered or filed with the complaint, but may be tendered upon the trial: Randolph v. Harris, 28 Cal. 561; but see Wright v. Wright, 54 N. Y. 437.

29. Maturity. It is not necessary to show that the note was due before the commencement of the action: Smith v. Holmes, 19 N. Y. 271; Maynard v. Talcott, 11 Barb. 569. Nor that the time for payment has elapsed: Peets v. Bratt, 6 Barb. 662; Maynard v. Talcott, 11 Id. 569; Smith v. Holmes, 19 N. Y. 271; Keteltas v. Myers, Id. 231. An allegation that a note was given to provide for payment: Held, not to mean a present payment, but a provision for a future payment: Bates v. Rosenkrans, 23 How. Pr. 98.

30. New Promise.-Where the creditor sues after the Statute of Limitations has run upon the original contract, or after a discharge in insolvency, his cause of action is not the original contract but the new promise; and in such case the new promise must be pleaded: McCormick v. Brown, 36 Cal. 180, and Chabot v. Tucker, 39 Id. 434; overruling Smith v. Richmond, 19 Id 476.

31. Non-Payment.—In a complaint upon a promissory note, an allegation of its non-payment is material, and, if omitted, the complaint is demurrable. The averment that there is a certain amount due upon the note is insufficient, being a statement of a mere conclusion of law: Frisch v. Cažer, 21 Cal. 71. An allegation in the complaint that "no part of said note, prin

cipal or interest, has been paid," is a sufficient averment of a breach: Jones v. Frost, 28 Cal. 245.

32. Note Held Adversely.—A party who claims to be the owner of a promissory note, which is at the time in the possession of another claiming title thereto, cannot maintain an action thereon; the maker being entitled to have it delivered up, and canceled upon paying it. The title to the note could not be settled in such suit: Crandall v. Schroeppel, 1 Hun, 557.

33. Negotiability.-See Civil Code Cal., sec. 3087. In Indiana, a promissory note made payable at a bank in that State having an actual existence, is negotiable; if not so payable, it is assignable, but is not commercial paper: King v. Vance, 46 Ind. 246. And in an action brought thereon by a bona fide holder, the maker is not estopped from showing that there was no such bank in existence: First Nat. Bk. v. Grindstaff, 45 Id. 158. A promissory note providing that it may be paid at any time before maturity, and that interest at eighteen per cent. per annum shall be deducted till due: Held, not to be negotiable: Way v. Smith, 111 Mass. 523. A note may be negotiable if payable certainly at a fixed time, although subject to a contingency under which it may become due earlier: Ernst v. Steckman, 74 Pa. St. 13. The current rate of exchange must be proved by extrinsic evidence; therefore, a promise to pay a sum certain with the current rate of exchange added, is not a negotiable note: Lowe v. Bliss, 24 Ill. 168; Hill v. Todd, 29 Ill. 101.

34. Oregon. For the sufficiency of a complaint against the maker of a note under the practice in Oregon, see Moss v. Cully, 1 Or. 147; Williams v. Knighton, Id. 234.

35. Ownership.-The averment in the complaint that plaintiff is the owner of the note and mortgage in suit, is a sufficient answer to a demurrer, on the ground that it does not appear by the complaint that the plaintiff is the holder of the note: Rollins v. Forbes, 10 Cal. 300. That defendant made his promissory note in writing, and thereby "promised to pay plaintiff," is sufficient to show that plaintiff is owner of the note: Moss v. Cully, 1 Oregon, 147. The averment that the plaintiff was the owner of the note is not the averment of an issuable fact. It is the allegation of a legal conclusion, and is immaterial, and should be omitted: Poorman v. Mills, 35 Cal. 118; approving Wedderspoon v. Rogers, 32 Cal. 569; see, also, 9 How. Pr. 216; 11 Id. 217; 12 Id. 460; 19 N. Y. 231; 24 N. Y. 547; 7 Abb. Pr. 447; 13 Id. 249; 1 Handy, 31. For the plaintiff may recover without being the holder, as where the note has been destroyed or lost: Supervisors v. White, 30 Barb. 72; Des Artes v. Leggett, 16 N. Y. 582. Or, as when the note is in possession of defendant: Smith v. McClure, 5 East, 476; Selden v. Pringle, 17 Barb. 468. In such cases he may sue if he is the real party in interest, trustee of an express trust, or person authorized by statute: Root v. Price, 22 How. Pr. 372: Butterfield v. McComber, Id. 150; see, on this subject, "Pleadings," pp. 117, 118, notes 24, 35, 43, 44.

36. Parties.-Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and sureties on the same or separate instruments, may all or any of them be included in the same action, at the option of the plaintiff: Cal. Code C P. sec. 383.

37. Place. Omission to state the place where a note is payable is a fatal defect: Sebree v. Dorr, 9 Wheat. 558; Covington v. Comstock, 14 Pet. 43.

38. Presentment.-In an action against the maker of a note, or the acceptor of a bill of exchange, in which the place of payment is fixed, it is not necessary to aver presentment at that place and refusal to pay: Montgomery v. Tutt, 11 Cal. 307. But the averment of presentment and demand of note at the place specified, is necessary to charge an indorser: Gay v. Paine, 5 How. Pr. 108; Ferner v. Williams, 14 Abb. Pr. 215; 11 Wheat. 171; 19 Johns. 419.

39. Real Party in Interest.-If the holder of a promissory note legally has its possession and is entitled to receive its payment, he is the proper plaintiff in its prosecution, and this without reference to the party who may ultimately be entitled to a participation in its proceeds: Williams v. Brown, 2 Keyes, 486; consult "Parties," p. 75.

40. Rate of Interest.-On a note made in another State, and bearing higher interest than is lawful by the law of the forum, the foreign statute need not be pleaded, for the court may presume that the common law, by which any rate of interest is lawful, prevails in the law of the place of the contract: Buckinghouse v. Gregg, 19 Ind. (Kerr.) 401.

41. Substitute Notes.-A complaint is not deficient, in stating a cause of action, because, after alleging valid notes, it states that they were given up and canceled, on the giving by defendant of new notes, in which usurious interest was reserved for the extension of time. The plaintiff may in such a case recover upon the original notes: Winsted Bank v. Webb, 39 N. Y. 325. 42. Value Received. The legal effect of a promissory note is the same with or without the words "value received:" People v. McDermott, 8 Cal. 288. 43. Verbal Conditions.-In Potter v. Earnest, 45 Ind. 416, it was held that a verbal condition could not be annexed to a promissory note; but in Benton v. Martin, 52 N. Y. 570, it was held that a bill or note may be delivered to the person beneficially interested therein, upon conditions the observance of which is essential to its validity; and the annexing of such conditions to the delivery is not an oral contradiction to the written obligation, though negotiable, as between the parties to it or others having notice.

44. Void Notes.-Notes given for a gaming consideration are valid in the hands of a bona fide indorsee: Haight v. Joyce, 2 Cal. 64. A negotiable note, the consideration of which is against public policy, becomes valid in the hands of an innocent holder before maturity: Thorne v. Yontz, 4 Cal. 321. A promissory note, given for the release of property seized for a toll imposed by the State law on lumber floated down a stream from that State into another, is void for want of consideration: C. R. L. Co. v. Patterson, 33 Cal. 334.

45. When Due.-When days of grace are allowed, the day on which the note became due is excluded from the computation: Story on Prom. Notes, sec. 217; Chitt. on Bills, 403; Bayley on Bills, 245. And the maker has all of the last day on which his note falls due, to pay it, and suit commenced thereon on that day is premature: Wilcombe v. Dodge, 3 Cal. 260; see Davis v. Eppinger, 18 Cal. 381; Bell v. Sackett, 38 Cal. 407. A promissory note payable generally, without specifying any time, is due immediately: Holmes v. West, 17 Cal. 623; see ante, "Bills of Exchange," note 66.

No. 227.

V. The Same-On Two Notes, one being Partly Paid.
[TITLE.]

The plaintiff complains, and alleges:
First.-For a first cause of action:

I. That on the.......day of......

......"

187., at...

the defendant made and delivered to the plaintiff his promissory note, of which the following is a copy [insert copy of note].

II. That he has not paid the same [except lars, paid on the ........ day of...

... dol

.., 187.].

day of ...

187., at

Second.-For a second cause of action:

I. That on the ....

the defendant made and delivered to the plaintiff his promissory note, of which the following is a copy [insert copy of the note].

II. That he has not paid the same.

Wherefore the plaintiff demands judgment against the defendant for the sum of [aggregate principal], with interest on ... dollars thereof from the ........ day of and with interest on ........ dollars thereof, from .... day of . . . . . .

the

.........

and costs of suit.

46. Causes of Action.-It would seem that several notes are several causes of action, and must be separately stated: Van Namee v. Peoble, 9 How. Pr. 198: Dorman v. Kellam, 4 Abb. Pr. 202. But it appears the contrary is held in Iowa: Merritt v. Nihart, 11 Iowa, 57.

47. How Alleged.—If preferred, and in fact it is the better practice, a copy of the notes may be set out, as in Form No. 188, in pleading on written instruments. By doing so, the genuineness and due execution of the instrument are deemed admitted, unless the answer denying the same be verified: Cal. Code C. P. sec. 447.

187., the de

The plaintiff complains, and alleges: I. That upon the ...... day of ... fendants were indebted to the plaintiffs in the sum of ..... dollars.

II. That to secure the payment of that sum, the defendants made their promissory notes, copies of which are hereto annexed, marked Exhibits "A," "B," and "C."

III. That at the same time the defendants agreed with