Wend. 504; Tebbetts v. Dowd, 23 Wend. 379; Miller v. Hackley, 5 Johns. 375; Duryee v. Denison, Id. 248; James v. O'Brien, 26 Eng. L. & Eq. R. 283. 89. Protest. There is no necessity of protesting a promissory note. A demand of payment and refusal, and notice to the ndorser, are all that is required: 1 Pars. on Cont. 238; Edw. on Bills, 268; 1 N. Y. 186; McFarland v. Pico, 8 Cal. 626; Cole v. Jessup, 10 How. Pr. 515. It is but a form of evidence of demand and notice. A simple averment of presentment and refusal to pay is sufficient: Price v. McClave, 6 Duer, 544. 90. Protest, Averment of.-An averment of protest does not imply a proper demand: Graham v. Machado, 6 Duer, 515; Price v. McClave, Id. 544. An averment that a note was protested, is not equivalent to an averment that it was duly presented for payment to the maker, and payment was refused: Price v. McClave, 3 Abb. Pr. 253. 91. Reasonable Time.-To charge an indorser of a note payable on demand, presentment must be made within a reasonable time, and what constitutes a reasonable time depends upon the facts of each particular case: Keyes. Fenstermaker, 24 Cal. 329. If delay has occurred, the holder must aver and prove the circumstances excusing the delay: Id. A delay of thir teen months was held unreasonable: Jerome v. Stebbins, 14 Cal. 457. No. 238. xvi. The Same-Against Maker and First Indorser. [TITLE.] The plaintiff complains, and alleges: I. That on the .. day of .... 187., at .... the defendant, A. B., by his promissory note, promised to pay to the defendant, C. D., months after date. ..dollars, .... ...... II. That the said C. D. indorsed the same to the plaintiff. III. That on the........day of 187., the same was presented to the said A. B. for payment, but was not paid. IV. That due notice thereof was given to the said C. D. V. That they have not paid the same. [Demand of Judgment.] 92. Change of Indebtedness.-Giving a note payable at a future time does not discharge the debt: Brewster v. Bours, 8 Cal. 502; Smith v. Owens, 21 Id. 11. So, when a note is given for an account: Higgins v. Wortell, 18 Cal. 330. The substitution of a new security will discharge the indorser: Smith v. Harper, 5 Cal. 329. Where a person sued on a note which had two indorsements, signed by the payee, the first a receipt for the amount due, and the second in the words, "without recourse to me," there was no presumption that the indorsements were made at different times, or that payment was voluntary and unconditional: Frank v. Brady, 8 Cal. 47. 93. Indorsement. That the allegation of indorsement to the plaintiff is essential, consult Montague v. Reineger, 11 Iowa, 503; Bennett v. Crowell, 7 Minn. 385. 94. Joint and Several Liability.-The assignor and maker of non-negotiable paper cannot be joined in an action thereon by the assignee: White v. Low, 7 Barb. 204; and see Allen v. Fosgate, 11 How. Pr. 218. No. 239. vvii. Indorsee against Maker, on Note Drawn to Maker's own Order. [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of 187., at... the defendant, by his promissory note, promised to pay to bearer [or to his own order], months after date [or on demand]. .. dollars, II. That the same was by the indorsement of the defendant transferred to the plaintiff. III. That defendant has not paid the same. [Demand of Judgment.] 95. Indorsement Essential.-It would seem that when a note is drawn to the drawer's own order, the indorsement by the maker is necessary to pass the title: Macferson v. Thoytes, Peake's N. P. C. 20; Bosanquet v. Anderson, 6 Esp. R. 43; Smith v. Lusher, 5 Cow. 688. But in New York it is provided otherwise by statute: 2 Rev. Stat. N. Y. 53; and see Plets v. Johnson, 3 Hill, 112; Masters v. Barrets, 2 Carr. & K. 715; S. C., 61 Eng. Com. L. R. 714. [TITLE.] No. 240. xviii. Subsequent Indorsee against Maker. The plaintiff complains, and alleges: I. [Allege making of note.] II. That the same was, by the indorsement of the said C. D. and L. M. and N. O. [or, and others], transferred to the plaintiff. III. That the defendant has not paid the same. [Demand of Judgment.] 96. And Others.-The use of the words "and others" will perhaps obviate the necessity of proving the indorsements, which if stated must be proved. It is not necessary to state all the indorsements, as possession by plaintiff and production at the trial is a legal presumption that he is the owner, and for value: Smith v. Schanck, 18 Barb. 344; James v. Chalmers, 2 Seld. 209. Nor to allege genuineness of indorsements: Pentz v. Winterbottom, 5 Den. 51. If the defendant on the trial prove loss or theft of the note in rebuttal of such presumption, the plaintiff may prove that he took the note in good faith, and for a valuable consideration: 1 Duer, 309; 23 Barb. 18; 2 Dougl. 633; 4 Sandf. 97; 1 Mees. & W. 425; 9 Barnw. & C. 208; 2 Campb. 5; 1 Burr. 452; 3 Id. 1516. No. 241. xix. The Same-Against First Indorser-Indorsement Special. [TITLE.] The plaintiff complains, and alleges: I. That the defendant indorsed to one A. B. a promissory note made by one C. D., on the .... day of 187 .., at sum of date. ..., to the order of the defendant, for the dollars, payable days after II. That the same was by the indorsement of the said A. B., transferred to the plaintiff [or that the said E. F. indorsed the same to the plaintiff]. [Demand of Judgment.] [TITLE.] No. 242. XX. The Same Against Intermediate Indorser. The plaintiff complains, and alleges: I. That a promissory note, made by one A. B., on the.... day of ................. 187., at C. D., for the sum of to the order of one dollars [payable ..... days after date], and indorsed by the said C. D. to the defendant, was, by the indorsement of the defendant, transferred to the plaintiff. II. III and IV. [Same as in 237.] [Demand of Judgment.] No. 243. xxi. The Same--Against his Immediate Indorser. [TITLE.] The plaintiff complains, and alleges: I. That that the defendant indorsed to him a promissory note, made by one A. B., on the.......day of.. 187., at... of to the order of one C. D., for the sum dollars, payable..... days after date, and indorsed by the said C. D. to the defendant. II. III and IV. [As in Form No. 237.] [Demand of Judgment.] [TITLE.] No. 244. xxii. The Same-Against all Prior Parties. The plaintiff complains, and alleges: I. That on the.......day of......, 187., at... the defendant, A. B., by his promissory note, promised to pay to the order of the defendant C. D., dollars, months after date. II. That the said C. D. indorsed the same to the defendant E. F., who indorsed it to the plaintiff. III. That on the .... day of ..... 187., the same was presented [or state facts excusing presentment] to the said A. B. for payment, but it was not paid. IV. That notice thereof was given to the said C. D. and E. F. V. That the same has not been paid. [Demand of Judgment.] No. 245. xxiii. Transfers not by Indorsement-By Assignee of Note. [TITLE.] The plaintiff complains, and alleges: the I. That on the.... day of........, 187., at.... defendant, by his promissory note, promised to pay to the order of one A. B... date. dollars days after II. That said A. B. sold and delivered said note to the plaintiff [for a valuable consideration, before it was payable]. III. That the defendant has not paid the same. [Demand of Judgment.] 97. Assessment and Apportionment.--The assessment or apportionment is a condition precedent, and must be averred and proved on the trial: Devendorf v. Beardsley, 23 Barb. 656; Williams v. Babcock, 25 Id. 109; Hurlbut v. Root, 12 How. Pr. 511; Williams v. Lakey, 15 Id. 206. And under what by-laws, and when, and how, it was ordered to be paid: Atlantic Ins. Co. v. Young, 38 N. H. 451. An indorsee of negotiable paper, issued by a corporation, in violation of the public laws of the State forbidding corporations to issue paper, cannot recover on the paper against the indorser. The contract being void, its contents cannot be received in evidence to support an action on it: 19 Johns. 6; 8 Cow. 20; Root v. Wallace, 4 McLean, 8; Root v. Godard, 3 Id. 102, Davis v. Bk. of River Raisin, 4 Id. 387. 98. Assignment.-An averment that the note was assigned on the day or at the time of its execution, is sufficient: Silver v. Henderson, 3 McLean, 165; compare Earhart v. Campbell, Hempst. 49. But consideration need not be averred: Wilson v. Codman, 3 Cranch, 193. By the assignment of the note alleged, the plaintiff acquired title to the note, and the action, under the Code, could be maintained in his own name: Savage v. Bevier, 12 How. Pr. 166; Hastings v. McKinley, 1 E. D. Smith, 273. 99. Assignee's Note.-Under the common law, if it appeared from the declaration that the note was not yet payable, a demurrer would lie: Waring ▼. Yates, 10 Johns. 119; Lowry v. Lawrence, 1 Cai. 69. If the complaint, not verified, sets out the note, and avers assignment by payee to plaintiff, and the answer is a general denial, the plaintiff must prove the assignment: Hastings v. Dollarhide, 18 Cal. 391. 100. Bearer. In an action against the maker of negotiable paper payable to bearer, it is sufficient, after alleging that the defendants drew it, to allege that it was transferred and delivered to the plaintiff, without saying by whom, if it be also alleged that the transfer was for value, and that the plaintiff is the owner: Mechanics' Bank v. Straiton, 5 Abb. Pr. (N. S.) 11. The allegation on a note payable to bearer is sufficient, if it allege that it is his property, and that the amount is due: Dabney v. Reed, 12 Iowa, 315. In case the note is payable to the order of a fictitious person, and in case it is payable to the maker's own order, it is in law payable to bearer: Minet v. Gibson, 1 H. Blackst. 569; Plets v. Johnson, 3 Hill, 112. 101. "Before Maturity," "for Value."-The words "before its maturity," and " for value," are not material to the cause of action. Unless the contrary is shown, the indorsement will be presumed to have been made before maturity: Pinkerton v. Bailey, 8 Wend. 600; Pratt v. Adams, 7 Paige, 615; Nelson v. Cowing, 6 Hill, 336; Case v. Mechanics' Banking Association, 4 N. Y. 166; and see James v. Chalmers, 6 N. Y. 209. 102. "Information and Belief."-In an action upon promissory notes assigned to the plaintiff, and for goods sold: Held, that the plaintiff might properly allege in his complaint, on his “information and belief,” that the notes were executed by the defendant; and he might allege in the same way that the goods were sold to the defendant; for they might have been sold by his agent. A motion to strike out the words "on information and belief," was therefore denied: St. John v. Beers, 24 How. Pr. 377. 103. Law of Place. -An assignment of a negotiable instrument, as between the parties to that assignment, is subject to the law of the place where the assignment is made; and if by such law the assignment is void, as against law, the assignee can exercise no right under such assignment: 5 East. 123; 12 Johns. 142; 3 Mass. 77; McClintick v. Cummins, 3 McLean, 158; Dundas v. Bowler, 3 McLean, 397. And what is a discharge of a contract, in a place where it was made, will be of equal avail in every other place. Except that where a contract is to be executed at a place different from that where it is made, the law of the place of execution will apply: Van Reimsdyk v. Kane, 1 Gall. 371. 104. Note with Blank for Name of Payee, how Pleaded.—Where, in an instrument for the payment of money, the name of the payee is left blank, with the intention that such instrument may be transferred by delivery, since any lawful holder may fill the blank with his own name as payee, he may plead it in an action thereon as having been delivered to some |