the plaintiffs, in writing, that in case of default in the payment of any of the said notes at any time when the same should become due and payable, the whole amount of said sum of ......dollars and interest, then remaining unpaid, should forthwith, at the option of the plaintiffs, become at once due and payable.

IV. That the first of said notes became due and payable on the. .. day of .., 187..

66

.......

V. That defendants have not paid the same.

[Demand of Judgment.]

[Annex Copies of Notes, marked Exhibits "A," "B," and "C."]

48. Made their Promissory Notes. It is not necessary to allege "agreed to deliver, and did make and deliver to the plaintiffs," because the copies are annexed, showing possession in the plaintiff of the said notes, and because "made" implies delivery: See ante, Note 16 under Form No. 226; see Brown v. South. Mich. R. R. Co., 6 Abb. Pr. 237.

The plaintiff complains, and alleges:

I. That on the ...... day of ........, 187., at.

the defendant, by his agent [or attorney in fact], duly authorized thereto, made his promissory note, and thereby promised to pay to the plaintiff [or his order]

dollars,

months after said date.

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

[Demand of Judgment.]

187.].

49. Agent.-A complaint averring that the principal, by his agent, made a promissory note, is good: Childress v. Emory, 8 Wheat. 642; Sherman v. Comstock, 2 McLean, 19; compare Wilson v. Porter, 2 Cranch C. Ct. 458. But it has been held that in the common counts it is not necessary to state that the defendants acted by an agent, but that an averment that the act was the act of the defendants would be supported by proof of the act of their agent: Sherman v. N. Y. Central R. R. Co., 22 Barb. 239.

50. "Duly Authorized."-Where the pleading shows, by setting out a copy of the instrument, that the act was by an agent, his authority should be averred: McCullough v. Moss, 5 Den. 567.

51. Ratification of Principals.-The ratification by a principal, of an unauthorized act of an agent, has a retroactive efficacy, and being equivalent to an original authority, an allegation of due authority is sustained by proof of such ratification: Hoyt v. Thompson, 19 N. Y. 207.

The plaintiff complains, and alleges:

I. That on the... . . . . day of........, 187., at.. the defendants, under their firm name of A. B. & Co., made and delivered to the plaintiff, their promissory note of which the following is a copy [insert copy of note]. II. That they have not paid the same. [Demand of Judgment.]

52. How Alleged.-Signature of a note, in the name of a firm, by a partner, may be alleged as made by the firm. It is sufficient to set forth a writing according to its legal effect: Manhattan Co. v. Ledyard, 1 Cai. 192; Vallett v. Parker, 6 Wend. 615; see Bass v. Clive, 4 Campb. 78.

53. Joint Makers. All the joint makers of a promissory note are principals: Shriver v. Lovejoy, 32 Cal. 574. And suit must be brought against all: Woodworth v. Spafford, 2 McLean, 168; Keller v. Blasdel, 1 Nev. 491.

[TITLE.]

No. 231.

ix. Another Form, Averring Partnership.

The plaintiff complains, and alleges:

I. That at the time of making the note hereinafter mentioned, the defendants were partners, doing business at under the firm name of A. B. & Co.

II. That on the.......day of........, 187., at..... the defendants, under their said firm name, made their promissory note, and thereby promised to pay the plaintiff months after said date.

dollars,

III. That they have not paid the same.

[Demand of Judgment.]

54. Allegation by Payee as Receiver against Partners.-That heretofore the defendants, under their firm name of A. B. & Co., made their promissory note, and thereby promised to pay to the plaintiff, as such receiver [or to his order], .......dollars, on the......day of...

........

187..

55. As such Receiver.-The act should be averred as that of the party as such receiver: Merritt v. Seaman, 6 N. Y. 168; and cases there cited. This clause was contained in the complaint in Smith v. Levinus, 8 N. Y. 472; and see Gould v. Glass, 19 Barb. 179; Sheldon v. Hoy, 11 How. Pr. 11. Where, however, the plaintiff's character is once sufficiently stated, the word "plaintiff" in subsequent parts of the pleading requires no addition to the description.

56. Partnership.-An averment that the note was indorsed by the defendants, under a certain name and description, is sufficient: Kendall v.

Freeman, 2 McLean, 189; Davis v. Abbott, Id. 29. Where the fact of partnership is likely to be drawn in question, it is better to aver the fact distinctly: Oechs v. Cook, 3 Duer, 161. The denial of the co-partnership of the plaintiffs is immaterial, unless the defendant denies the execution of the note: Whitwell v. Thomas, 9 Cal. 499.

.........

57. Sight Note, Allegation of.-That on the ...... day of ...... 187., at ......, said note was duly presented to the defendant [maker], with notice that payment was required according to the terms thereof. Sight is a condition precedent: 2 Chitt. Pl. 234.

..., 187., at

The plaintiff complains, and alleges: I. That on the .... day of .... the defendant made and delivered to the plaintiff his certain promissory note, of which the following is a copy [insert copy of note]; that by inadvertence or mistake said note was dated as of the day of..

the said .... day of ...

....

., instead of .... [the date of delivery].

II. That he has not paid the same.

[Demand of Judgment.]

No. 233.

xi. Domestic Corporation, Payee, against a Foreign Corporation.

[TITLE.]

The plaintiff complains, and alleges:

I. [Allege incorporation of plaintiff under the Act, as in Form No. 42.]

II. That the defendant is a corporation, chartered by and under the laws of the State of Nevada, and pursuant to an Act of the Legislature of said State [title of act], passed [date of enactment].

at......

III. That on the....day of.. ......, 187., at. the defendant, as such corporation, by one A. B., its agent [or attorney in fact], made its promissory note, and thereby promised to pay to the plaintiff, under its corporate name of E. F. [or to their order], ... dollars,

months

after said date. A copy of said note is hereto attached, marked "Exhibit A," and made part of this complaint. IV. That the same has not been paid.

[Demand of Judgment.]

58. Form of Note.-"The President, by the order of the Board of the A. B. Co., promises to pay," etc., signed "C. D., Pres., E. F.," et al., binds the individuals signing, and not the corporation: Caphart v. Dodd, 3 Bush. 584. "The President and Directors of the A. B. Co. will pay," etc., signed “C. D., Pres., E. F.,” et al., does not bind the individuals signing, but only the corporation: Yowell v. Dodd, 3 Bush. 581.

59. Insurance Company.-In an action by the indorsees against the maker of a note, of which an insurance company were the payees and indorsers, the complaint showed that the defendant made his note to the Atlas Mutual Insurance Company, or order; and that the company indorsed it, and transferred and delivered it to the plaintiffs. It did not expressly aver that the transfer was made pursuant to a resolution of the board of directors: Held, sufficient on demurrer. If such resolution were necessary, it was implied and provable under the allegation that the company transferred the note. But that is not true if the transfer was not made by the proper officer, and according to law: Nelson v. Eaton, 15 How. Pr. 305.

60. Power of Corporation to Make Note.-In the absence of any prohibitory statute, a corporation may give a note for a debt contracted in the course of its legitimate business: Mott v. Hicks, 1 Cow. 513, and page 532; Moss v. Oakley, 2 Hill, 265; Attorney-General v. Life and Fire Insurance Co., 9 Paige, 470: Kelley v. Mayor, etc. of Brooklyn, 4 Hill, 263; McCullough v. Moss, 5 Den. 567. Prima facie, a corporation has power to take a promissory note: Mutual Benefit Life Insurance Co. v. Davis, 12 N. Y. 569.

61. Presumption of its Legality.-Where there is nothing on the face of the note to show that it was issued contrary to law, or that the consideration or the purpose was illegal, the presumption is that it was given for a lawful purpose: Safford v. Wyckoff, 4 Hill, 442; Barker v. Mechanics' Fire Insurance Co., 3 Wend. 94.

62. Sufficient Allegation.-See N. Y. Floating Derrick Co. v. N. J. Oil Co., 3 Duer, 648.

The plaintiff complains, and alleges:

I. That at the time of the making the note hereinafter mentioned, the defendant and one A. B. were partners, doing business under the firm name of A. B. & Co.

II. That on the.......day of.......,

187., at.....

they made, under their said firm name, their promissory note of that date, of which the following is a copy [insert copy of note].

.....

III. That on the....day of..... .., 187., at... said A. B. died, leaving the defendant the sole surviving partner of said firm.

IV. That said note has not been paid.

[Demand of Judgment.]

63. Joint Actions.—A joint action at law cannot be maintained against survivor and administrator of deceased maker of a promissory note: Maples v. Geller, 1 Nev. 233. The rule in equity has been that the estate of a deceased joint obligor could only be reached when survivor was bankrupt or insolvent: Id.

64. Non-Payment.-Where an action is brought against two, as the survivors of one, who executed a joint note, it is not essential to allege in the declaration that the note was not paid by the deceased: Silver v. Henderson, 3 McLean, 165; but see Winter v. Simonton, 3 Cranch C. Ct. 62.

No. 235.

xiii. Payee against Maker and Indorser, on Note Taken on the Faith of the Indorsement.

[TITLE.]

187., at.....

The plaintiff complains, and alleges: I. That on the.....day of..... the defendant, A. B., made his promissory note, and thereby promised to pay to the order of the plaintiff, at the sum of.. ...dollars, ... months after

said date.

II. That the defendant, C. D., indorsed said note, when said A. B. delivered the same to the plaintiff.

III. That said note at maturity was presented to said A. B. for payment, and payment thereof demanded, but the same was not paid; of all which due notice was given to the defendant, C. D.

IV. That said note was made by the defendant A. B., and indorsed by the defendant C. D., for the purpose of paying for [state what], on the credit of such indorsement; that the defendant C. D. indorsed the same for the purpose of procuring for the said maker a credit with the plaintiff, knowing that it would be so applied, and that said note was so passed and so indorsed by the defendant with his privity, to the plaintiff, in payment for [state what].

V. That no part thereof has been paid.

[Demand of Judgment.]

65. Form.-See, as to the authorities sustaining a form similar to this: Moore v. Cross, 19 N. Y. 227. For a complaint on instrument for payment of money only: Held, sufficient against makers, and insufficient against indorsers: Conkling v. Gandall, 1 Keyes, 228.