Under the direct provisions of the Negotiable Instruments Law, the absence of a date on a note will not render it invalid, and hence it is error to dismiss without an expressed averment as to when the note was made).

Eng. Giles v. Boune, 2 Chit. 300, 18 ECL 646, 6 M. & S. 73, 105 Reprint 1170; Smith v. Lord, 2 D. & L.

759.

See also Hanly v. Real Est. Bank, 4 Ark. 598 (holding there is fatal variance where the note is described as bearing a certain date and on oyer note has no date).

[a] Date left blank.-A complaint is insufficient, where neither the instrument nor a copy thereof is filed, which alleges that it was made by defendant on a day left blank. Randles v. Randles, 39 Ind. 555; Brown v. Brown, 7 KyL 376.

48. Brown v. Weldon, 71 Cal. 393, 12 P 280; Totten v. Cooke, 2 Metc. (Ky.) 275 (where the petition was held sufficient, although the date of the note was omitted, the note being filed with and made a part of the pleading).

49. De la Courtier v. Bellamy, 2 Show. 422, 89 Reprint 1019.

a complaint on a note for failure to give the date thereof.53

Date of transfer. Where the instrument sued on has been transferred by the original payee, it is not necessary to allege the date of such transfer.54 [§ 1141] 11. Description of Instrument.55 The instrument on which the recovery is sought must be truly described 56 by setting it out in hæc verba or according to its legal effect, or by making it a part of the complaint, declaration, or petition by appropriate reference;58 but substantial accuracy of description is sufficient.59 If the instrument is made Mass.-Lent v. Padelford, 10 Mass. 230, 6 AmD 119.

See also Hemmenway v. Hickes, 4 Pick. (Mass.) 497 (holding that a declaration that defendant promised to pay plaintiff or his order a sum specified does not show that the action is on a note).

"The rule is that the petition upon a written contract must either set out the contract in its words, or must set out in other words the substance of the contract." Anderson County Bank v. Foster, 146 Ky. 179, 181, 142 SW 225.

[a] Where several notes and separate counts. Where, with the first paragraph of a complaint in an action on notes secured by mortgage, there is given a copy of the mortgage and of a note corresponding with the one first described, but with the other paragraphs, instead of the other notes, are only the statements: "2d. Note same as above, payable in two yrs." "Note same as above payable in three yrs.," the complaint is good in respect to the first note only. Buck v. Axt, 85 Ind.

50. Walker v. Welch, 13 Ill. 674;512. Robinson v. Grandy, 50 Vt. 122; Giles [b] Alteration of instrument.v. Boune, 2 Chit. 300, 18 ECL 646, 6 M. & S. 73, 105 Reprint_1170. But see Salisbury v. Wilson, Tapp. (Oh.) 198 (holding that averring that a note was made on a particular day is not averring that it was dated on such day; and that, where the note is without date as to the year, there is no variance).

51. Church v. Stevens, 56 Misc. 572, 107 NYS 310; Smith v. Lord, 2 D. & L. 759.

[a] Plaintiff is not estopped by a recital of the date from showing that the note was made on a different day. Banks v. Coyle, 2 A. K. Marsh. (Ky.) 564.

52. Denick v. Hubbard, 36 Hun (N. Y.) 188.

53. Church v. Stevens, 56 Misc. 572, 107 NYS 310.

54. See infra § 1171.

55.

1282.

Miss. Berthe v. Biggs, 2 Miss. 195.
Mo.-Bateson v. Clark, 37 Mo. 31.

N. Y.-Equitable Trust Co. V.
Stadler, 142 NYS 292. To same effect
Bloodgood v. Faxon, 24 Wend. 385.

Okl.-Helm v. Briley, 17 Okl. 314, 87 P 593.

Pa.-Mitchell v. Welch, 17 Pa. 339, 55 AmD 557.

S. C.-Merchants', etc., Bank V Placksburg Spinning, etc., Mill, 71 S. C. 525, 51 SE 274; McMahon v. Murphy, 17 S. C. L. 535.

Tex.-Graves v. Drane, 66 Tex. 658, 1 SW 905; Bledsoe v. Wills, 22 Tex. 650; Wallace v. Hunt, 22 Tex. 647; Dewees V. Lockhart, 1 Tex. 535: Jones v. Ellison, (Civ. A.) 49 SW 406; Davie v. Griffith, (Civ. A.) 33 SW 390; Lyon v. Kempinski, 1 Tex. A. Civ. Cas. § 79.

W. Va.-Boyd v. Beebe, 64 W. Va. 216, 61 SE 304, 17 LRANS 660; Morganstown Second Nat. Bank V. Ralphsnyder, 54 W. Va. 231, 46 SE

206.

Wis.-Dart v. Sherwood, 7 Wis. 523, 76 AmD 228.

Ont.-Munro v. Cox, 30 U. C. Q. B.

363.

(1) A note which has been altered
by consent of the parties may be de-
clared on by setting out a copy of it
as altered without showing how it [a] Setting out by way of induce-
was originally written. Hall v. Fos- ment.-Although a draft paid by ac-
ter, 114 Mass. 18. (2) In an action commodation acceptors cannot be the
on a note which has been altered foundation of an action by them
since its delivery, if its original against the drawer, yet in an action
tenor is apparent on inspection it is of debt the draft may be annexed to
sufficient to declare on it in
the the declaration or set out by way
usual form, and, on showing that the of inducement. Griffin v. Lawton, 54
alteration is a mere spoliation, there Ga. 104; Turner v. Thompson, 23 Ga.
is no variance between the allega- 49.
tions and the proof. Drum v. Drum,
133 Mass. 566. (3) When the holder
of the instrument admits that a ma-
terial alteration has been made since
its delivery,, he must allege every
fact necessary to show his right of
recovery on the altered instrument.
Anderson v. Hale, 7 KyL 836.

57. U. S.-Spaulding v. Evans, 22
Variance see infra §§ 1272- F. Cas. No. 13,216. 2 McLean 139;
Turner v. White, 24 F. Cas. No. 14,-
264, 4 Cranch C. C. 465.

56. Ala. Catlin v. Gilder, 3 Ala. 536.

Ark.-Jordan v. Ford, 7 Ark. 416. Del.-Pyle v. Gallaher, 22 Del. 407, 67 A 197, 75 A 373.

Ind. Smythe V. Scott, 106 Ind. 245, 6 NE 145 (holding that a complaint in an action on a note against the indorser thereof, which neither sets out a copy of the note nor in any manner refers to it or to the indorsement thereof, is fatally defective).

V.

Ky.-Anderson County Bank
Foster, 146 Ky. 179, 142 SW 225.
Me.-Perkins v. Cushman, 44 Me.

484.

Ala.-McRae v. Raser, 9 Port. 122;
Adams v. McMillan, 8 Port. 445.

Ark. Bingham v. Calvert, 13 Ark.
399; Roach v. Scogin, 2 Ark. 128.
See Sessions v. Peay, 21 Ark. 100
(holding that an averment that a
note was drawn in the ordinary form
means that it was payable in dol-
lars).

Cal-Santa Rosa Bank v. Paxton, 149 Cal. 195, 86 P 193; Ward v. Clay, 82 Cal. 502, 23 P 50, 227.

Colo.-Bishop v. Griffith, 4 Colo. 68: Thackeray v. Hanson, 1 Colo. 365.

[b] The words "without defalcation or discount" may be omitted. Archer v. Claflin, 31 I. 306.

[c] A foreign bill should be declared on as such, inasmuch as the rules of law governing such bills differ from those applicable to inland bills of exchange. Armani v. Castrique, 13 M. & W. 443, 153 Reprint 185.

58. Cal.-Ward v. Clay, 82 Cal. 502, 23 P 50, 227.

Colo. Rhodes V. Hutchins, Colo. 258, 15 P 329.

10

Ind.-Lucas V. Baldwin, 97 Ind. 471; Firestone V. Daniels, 71 Ind. 570 (holding that, where a copy of a note sued on is filed with, and made a part of, each paragraph of the complaint, a contention that each paragraph is insufficient for failure to contain a sufficient description of the note sued on is untenable); Anthony v. Shick, 68 Ind. 213; Cooper V. Merchants', etc.. Nat. Bank, 25 Ind. A. 341, 57 NE 569. Minn.-Elliott v. Roche, 64 Minn. N. Y.-Lake Erie Commercial Bank v. Norton, 1 Hill 501.

Conn. Sherman v. Globe, 4 Conn. 482, 67 NW 539.

246.

Mo.-Mechanics' Bank v. Donnell, 35 Mo. 373. Pa.-Church v. Feterow, 2 Penr. 490. & W. 301.

S. C.-Morris v. Fort, 13 S. C. L. 397.

Tex.-Bledsoe V. Wills, 22 Tex. 650; Rauson v. Gatewood, 2 Tex. A. Civ. Cas. § 364 (where a petition alleging the loss of a note given in lieu of, and to take up, a prior note, and charging an indebtedness on both instruments, was held to be defective for uncertainty and inconsistency).

Fla. Harrell v. Durrance, 9 Fla.
Ga.-Mercier v. Copelan, 73 Ga.
636 (holding that, where a letter of
credit under which drafts were
drawn is set forth according to its
legal effect, it is not necessary to at-
tach a copy).

Ill-Archer v. Claflin, 31 Ill. 306.
Ind. Risher
172; Cooper v. Merchants', etc., Nat.
Bank, 25 Ind. A. 341, 57 NE 569.
Ky.-Thompson v. Thompson, 4 B.
Mon. 502.

V. Morgan, 56 Ind.

Tex.-Frazier v. Robertson, 39 Tex. 513: Bledsoe v. Wills, 22 Tex. 650.

[a] A description of notes issued by a bank by their numbers and letters and the names of the president and the cashier of the bank is sufficient where the original notes are annexed to, and filed with, the petition, although not made a part thereof. Gray V. Commercial Bank, 1 Rob. (La.) 533.

59. Ala.-McRae v. Raser, 9 Port. 122.

a part of the pleading it will control the averments of the latter.60 Where the indorsee of a note who sues thereon desires protection as a bona fide holder of a negotiable note so as to cut off secret defenses, it must affirmatively appear from the averments of the complaint that the instrument sued on is one entitled to protection as negotiable paper.

61

In writing. It need not be alleged that the instrument was in writing.62

The amount of the instrument should of course be stated.63

Manner of payment. In an action on an instrument for a certain sum payable in a special manner, the manner of payment need not be noticed in a pleading declaring thereon.64 But if the instrument sued on is payable in particular articles the value of which in money is not stated therein, a declaration thereon should contain an averment showing the value of such articles.65

Order, bearer, etc. It is not essential in declaring

on a negotiable instrument to include the words "or order" or "or bearer," although such words appear in the instrument itself,66 except, in some cases, where the action is by the transferee of the instrument.67

Letters, numbers, and devices. In describing a negotiable instrument in an action thereon, it is not necessary to set out or to notice letters, numbers, or devices which do not affect its legal import.68

Memoranda indorsed on a negotiable instrument need not be noticed in describing such instrument. Instrument in foreign language. Where a negotiable instrument is written in a foreign language, it is sufficient to give a translation or to declare on it as though executed in English.70

71

[§ 1142] 12. Execution and Delivery-a. Necessary Allegations." The execution of the instrument must be alleged,72 and the complaint must contain some averment or statement of facts sufficient to show a delivery of the instrument.73 Thus, if a note cording to its legal effect). But see Meigs v. Guiraud, 3 Oh. Dec. (Reprint) 328 (where the court refused 65. Phillips v. Dodge, 8 Ga. 51 to enter judgment on a petition in (note for fifteen sows and burrows); the usual form incorporating a note Kearney v. King, 2 B. & Ald. 301, in French until plaintiff had amend106 Reprint 377 (where a bill of ex-ed by furnishing a copy of the note change was payable in Irish money). in the English language). 66. Ala.-McRae v. Raser, 9 Port. 71. Place of execution see infra § 1183.

Fla. Harrell v. Durrance, 9 Fla. | payable in money, under the Ken490. tucky statute making bills so payable negotiable.

Ill. Crittenden v. French, 21 Ill. 598; Teeter v. Poe, 48 Ill. A. 158. Me.-Collins v. Bradbury, 64 Me.

37.

Miss.-Hughes v. Grand Gulf Bank, 10 Miss. 115.

N. Y.-Herrick v. Bennett, 8 Johns. 374.

Tex.-Wiebusch v. Taylor, 64 Tex. 53; McClelland v. Smith, 3 Tex. 210. [a] Illustration.-Although the complaint does not set out a copy of the written promise to pay sued on, or designate it as a note, it is sufficient if it sets forth its terms which are the ordinary terms of a note. Equitable Trust Co. v. Stadler, 142 NYS 292.

[b] Provision for attorney's fees. -Where a petition on a note does not attempt to set it out in hæc verba, it is not material that a provision in the note for an attorney's fee is omitted from the petition. Jones v. Ellison, (Tex. Civ. A.) 49 SW 406.

60. Arkansas City First Nat. Bank v. Jones, 2 Okl. 353, 37 P 824; Pyron v. Gruider, 25 Tex. Suppl. 159; Morrison v. Keese, 25 Tex. Suppl. 154.

[a] Misdescription cured by copy. -A note set out in plaintiff's particulars of demand referred to by the declaration cures a mistake in the declaration as to the order of indorsement. Richards v. Street, 31 App. (D. C.) 427. 61.

Weinstein v. Citizens' Bank, (Ala.) 69 S 972.

62. Whilden v. Merchants', etc., Nat. Bank, 64 Ala. 1; Lowville Bank v. Edwards, 11 HowPr (N. Y.) 216; Stephens v. Spokane, 11 Wash. 41, 39 P 266; Ereskine v. Murray, 2 Ld. Raym. 1542, 92 Reprint 500.

63. Ark.-Noel v. Clark, 3 Ark. Ind.-Randles v. Randles, 39 Ind.

432.

122.

Ky.-Brown v. Ready, 20 SW 1036, 14 KyL 583. Mo.-Seevin v. Reppy, 46 Mo. 606. Mont.-Schuttler v. King, 13 Mont, 226, 33 P 938.

Nebr.-Spellman

V. Frank, 18 Nebr. 110, 24 NW 442; Collingwood v. Merchants' Bank, 15 Nebr. 120, 17 NW 359; Gage v. Roberts, 12 Nebr. 276, 11 NW 306.

Pa.-Schomaker v. Dean, 201 Pa, 439, 50 A.923.

Tex.-Unger v. Anderson, 37 Tex. 550; Belcher v. Wilson, 31 Tex. 139; Gilder v. McIntyre, 29 Tex. 89; Parr v. Nolan, 28 Tex. 798; Sneed v. Moodie, 24 Tex. 159; Gray v. Osborne, 24 Tex. 157, 76 AmD 99; Ross v. Breeding, 13 Tex. 16: Ramsey v. Drennan, (Civ. A.) 44 SW 587.

[b] Memorandum or recital as to collateral security.-(1) It is not a variance, in an action on a promissory note, that the declaration does not mention a memorandum on the note, stating that it was held as col--A description of a maker and an lateral security. Blackstone Nat. Bank v. Lane, 80 Me. 165, 13 A 683. 555. (2) Where a note is described by its N. Y.-Conklin v. Field, 37 HowPr obligatory clauses without any no455. tice of a recital that it is secured by Tex. Sherwood v. La Salle Coun- collateral, the note is admissible in ty, (Civ. A.) 26 SW 650. evidence as against an objection on Va.-Archer v. Ward, 9 Gratt. (50 the ground of variance. Rich V. Va.) 622.

See also supra § 1132.

64. Ala.-Weaver v. Lapsley, 42 Ala. 601, 94 AmD 671; Nesbitt V. Pearson, 33 Ala. 668; McRae v. Raser, 9 Port. 122.

Ill. Owen v. Barnum, 7 Ill. 461.
Ind.-Parker v. Morton, 29 Ind. 89.
Ky. Morrison v. Tate, 1 Metc. 569.
Mass.-Sexton v. Wood, 17 Pick.

110.

Boyce, 39 Md. 314.

[c] Recitals as to deed. In Halfin
v. Winkleman, 83 Tex. 165, 18 SW
433, it was held that a petition was
sufficient which in describing the
note sued on made mistakes as to
the pages on which a deed recited
therein was recorded.
70.

[a] Erroneous designation cured. indorser in one paragraph as joint makers is cured by a proper description in the other paragraphs and in the accompanying copy of the note and indorsement. Burroughs v. Wilson, 59 Ind. 536.

[b] Omission cured.-The omis sion of an averment of execution is cured by failure to deny the making of the instrument. Turner v. White, 24 F. Cas. No. 14,264, 4 Cranch C. C. 465 (where there was a plea of payment).

[c] Incompetency of maker.-An allegation that defendant was adjudged a lunatic after the execution Williams v. German Mut. F. of the note in suit is not an admisIns. Co.. 68 Ill. 387; Lambert V. sion that he was incompetent at the Blackman, 1 Blackf. (Ind.) 59; Hart-time of its execution. Knox v. Knox, Tex. Hardin v. Titus, Dall. 622. man v. Welz, 1 B. Mon. (Ky.) 242; 30 S. C. .377, 9 SE 353. [a] Payable in current funds.-It | Nourny v. Dubosty, 12 AbbPr (N. 73. Ark.-Mitchell v. Conley, 13 was held in Morrison' v. Tate, 1 Metc. Y.) 128 (where it was held that the Ark. 414. (Ky.) 569, that a bill payable in cur- proper method of declaring on such Cal.-Smith v. Waite, 103 Cal. 372, rent funds might be declared on as an instrument was to state it ac- 37 P 232; Hook v. White, 36 Cal. 299.

that the instrument sued on was signed by the
maker or drawer,80 yet an averment of making is
equivalent to an allegation of signing.81
In an
action against the maker it must be alleged that
the execution of the note was by defendant;82 but
an allegation that the instrument was signed by
a named person, the name being that of defend-
ant, is sufficient without alleging that he is the de-.
fendant.8 83

Delivery. The delivery of the note or the bill need not be alleged in terms, but may be implied from other statements and allegations,84 such as: that defendant made or executed the instrument,85 | legation that on a certain date "the Vt.-Binney v. Plumley, 5 Vt. 500, defendant D and J executed their 26 AmD 313. joint and several promissory note,' etc., did not allege that D was a defendant. Williams v. Potter, 72 Ind. 354.

86

87

indorsed it,se assigned it, or negotiated it,ss or that defendant promised to pay.89 An allegation of delivery imports a delivery to the payee, and hence it is unnecessary expressly to state that fact.90

Setting out instrument. If the instrument sued on, signed by the party sought to be charged, is set out in the declaration or complaint, filed, or made a part of the pleading by appropriate reference, its execution by defendant is sufficiently shown by a suitable averment connecting him therewith;"1 but unless he is so connected there should be an allegation of execution.92 However, under statutory provisions permitting plaintiff to set out a copy of the note and to allege that there is due to him thereon a specific sum, if he so plead, an express allegation of execution is unnecessary." 93 But a complaint HowPr (N. Y.) 274; Abb. Tr. Brief Tex.-Behrens Pl. [2d ed.] p. 320; 8 Cyc 99, 100; Daniel Neg. Inst. [6th ed.] 63. See also Hood v. Hoffman, 132 App. Div. 923, 116 NYS 892"). Pittsburgh First Nat. Bank v. Stallo, 160 App. Diy. 702, 703, 145 NYS 747.

[a] Leaving in maker's hands.Where plaintiff alleges that defendant executed his note, whereby he promised, etc., a further allegation that, after its execution, the note was left in the maker's hands is not inconsistent with the allegation of delivery implied by the first allegation. Wochoska v. Wochoska, 45 Wis. 423.

86. Ill. Chester, etc., R. Co. v. Lickiss, 72 Ill. 521; Higgins v. Bullock, 66 Ill. 37.

Miss.-Hibernia Bank, etc., Co. v. Smith, 89 Miss. 298, 42 S 345.

N. Y.-New York Marbled Iron Works v. Smith, 11 N. Y. Super. 362; Griswold v. Laverty, 10 N. Y. Super. 690, 12 NYLegObs 316; Singleton v. Thornton, 26 NYWkly Dig 434.

Vt. Trask v. Karrick, 87 Vt. 451, 89 A 472 (holding that an allegation that the note sued on was "indorsed" to plaintiff sufficiently alleged the delivery of the note to plaintiff as indorsee).

Wis.-Burbank v. French, 12 Wis.

Eng.-Churchill v. Gardner, 7 T. R. 596, 101 Reprint 1151.

90. Topping v. Clay, 65 Minn. 346, 68 NW 34; Cabbott v. Radford, 17 Minn. 320; Hayward V. Grant, 13 Minn. 165, 97 AmD 228; Ginsburg v. Von Seggern, 59 App. Div. 595, 69 NYS 758.

[a] Single bill-It is not necessary, in a declaration in debt on a single bill, to allege delivery of the writing to the payee, although such delivery is essential to its validity. Brown v. Hemphill, 9 Port. (Ala.) 206.

[b] Delivery to "defendant."-An allegation in the declaration, in a suit on a note, that it was delivered to "defendant" is a clerical misprision. Allen v. Claunch, 7 Ala. 788. 91. Conn.-Lord V. Russell, 64 Conn. 86, 29 A 242.

Ind.-Meeker v. Shanks, 112 Ind. 207, 13 NE 712.

Ky-Bell v. Mansfield, 13 SW 838, 11 KyL 89.

NY-Purdy v. Vermilya, 8 N. Y. 346; Marshall v. Rockwood, 12 How Pr. 452.

which does not allege, in accordance with the statute, that there is due to plaintiff from defendant a specified sum which it is claimed is insufficient, unless execution by defendant is alleged."*

[ 1144] c. Joint and Several Execution. Where two or more persons are joined as defendants in an action on a negotiable instrument, a right to recover against all the defendants should be shown.95 If the promise is joint or joint and several, it must be so alleged.96

Bringing within statutory exception. Under statutes requiring all the parties to be joined as defendants in an action on a negotiable instrument, if less than all are sued it is not necessary to aver that those not sued are within the terms of exceptions enumerated in the statute.97

V. Dignowitty, 4 [c] An allegation that defendants
drew checks on a bank sufficiently
avers that the checks were executed
jointly. Ringo v. New Farmers' Bank,
101 Ky. 91, 39 SW 701, 19 KyL 91.

Tex. Civ. A. 201, 23 SW 288.
[a] Illustration.-The setting forth
of a note, with the maker's name
preceded by the word "signed," suffi-
ciently alleges that it was made by
him. Price v. McClave, 13 N. Y.
Super. 544.

[b] Copy filed. Where it is al-
leged that the note was executed by
defendants, the copy filed in accord-
ance with law may be looked to to
determine the character of the sig-
natures. Jaqua v. Woodbury, 3 Ind.
A. 289, 29 NË 573.

92. Price V.
McClave, 12 N. Y.
Super. 670, 3 AbbPr 253; Geneva
Bank v. Gulick, 8 HowPr (N. Y.) 51;
Jennings v. Moss, 4 Tex. 452; For-
tune v. Kerr, 25 Tex. Suppl. 309;
Baker v. Hahn, (Tex. Civ. A.) 161
SW 443, 445 (where the court said:
"Setting out the note in the petition,
including the signature 'N. A. Baker,'
is not equivalent to an allegation
that the defendant executed it").

93. Prindle v. Caruthers, 15 N. Y.
425; Butchers', etc., Bank v. Jacob-
son, 22 N. Y. Super. 595, 15 AbbPr
218, 24 HowPr 204 (holding that a
complaint in statutory form need not
allege that defendants made the note
nor show how they are connected
with it); Sargent v. Steubenville,
etc., R. Co., 32 Oh. St. 449; Ohio L.
Ins., etc., Co. v. Goodin, 1 Handy 31,
12 Oh. Dec. (Reprint) 10. But see
Conkling v. Gandall, 1 Keyes (N. Y.)
228 (where it is stated obiter that
the statute does not dispense with an
allegation of execution).

94. Cohn v. Husson, 113 N. Y. 662, 663, 21 NE 703 (where the court said: "But this defect in the complaint is cured by the answer, in which the execution of the note by the defendant is admitted").

95. Ark.-Boren v. State Bank, 8
Ark. 500.

Ind.-Eaton v. Burns, 31 Ind. 390;
Goodlet v. Britton, 6 Blackf. 500.
N. H.-Hopkins v. Farwell, 32 N.
H. 425.

N. Y-Paine y. Noelke, 43 N. Y.
Super. 176 [aff 53 HowPr 273]; Rob-
ertson v. Smith, 18 Johns. 459, 9
AmD 227.

Tex.-Covington V. Burleson, 28
Tex. 368; Trimble v. Miller, 24 Tex.
214.

96. Brown V. Peirce, 2 Root (Conn.) 95; Hopkins v. Farwell, 32 N. H. 425.

[a] A declaration against one joint and several maker of a note, which alleges its execution by him, need not aver its execution by the other. Morgan v. Laurenceburg Ins. Co., 3 Ind. 285.

[b] Alleging execution and indorsement before delivery to the payee has been held equivalent to an allegation that the maker and the indorser are jointly liable as makers. Paine v. Noelke, 43 N. Y. Super. 176, 54 HowPr 333. Contra under Negotiable Instruments Law.

[d] An allegation that defendants made their note is an averment of joint and several execution. Reed v. Clark, (Tex. Civ. A.) 39 SW 160.

[e] An allegation that each of two indorsers promised to pay authorized a recovery as of a separate promise by each a joint promise being unnecessary. Brown v. Fowler, 133 Ala. 310, 32 S 584.

[f] A note reciting "we promise," etc., signed by a corporation and its treasurer, should be declared on as a several, and not as a joint, note. Gleason v. Sanitary Milk-Supply Co., 93 Me. 544, 45 A 825, 74 AmSR 370.

[g] In an action by a bank against a maker and an indorser, on a note discounted by it, an allegation charging defendants as joint makers is sufficient, where the charter of the bank provides that all parties to a note discounted by it shall be sued jointly. Chenango Bank v. Curtin, 19 Johns., (N. Y.) 326.

[h] Action against survivor.—(1) An allegation in an action against a surviving maker of a joint note that it is joint and several is an immaterial variance. Creecy v. Joy, 40 Or. 28, 66 P 295. (2) In an action on a joint and several note, the addition of the words "survivor," etc., as description of defendant in the declaration is mere harmless surplusage and will not affect the action against him on his several liability. Bogert v. Vermilya, 10 N. Y. 447.

[i] In Canada (1) the statutory form must be followed, and the liability of the several parties stated. Upper Canada Bank v. Gwynne, 4 U. C. Q. B. 145. But see Acheson V. McKenzie, 4 U. C. Q. B. 230 (holding that if a promise is alleged the specific statement of legal liability set forth in the form is immaterial and may be omitted). (2) Under 3 Vict. c 8, a declaration against the maker and the indorser of a note should allege a joint and several liability according to the form of the act." Nordheimer v. O'Reilly, 6 U. C. Q. B. 413. But see Chapman v. Dubrey, 21 U. C. Q. B. 244 (holding that in an action against the maker and the indorser of a note it is unnecessary to aver a joint liability). (3) A declaration against the drawer of a bill and the acceptors thereof who sign jointly, which avers a joint and several liability of all the parties, is bad. per Canada Bank v. Gwynne, 4 U. C. Q. B. 145. (4) The recital of a joint and several promise, and averment of a joint and several liability, and an averment "and being so liable, they jointly and severally promised to pay," etc., are not inconsistent. Gibb v. Dempsey, 3 U. C. C. P. 437. 97. Lillard v. Planters' Bank, 4 Miss. 78.

Up

[1145] d. Capacity to Execute.98 The complaint need not allege that defendant had capacity to execute the instrument; 99 nor need the competency of the drawer to make the bill in suit be averred in an action against an indorser of such bill.1

principal, the agent's authority must be averred," if the principal is to be charged.' It is proper to allege in a petition that the party "made his note and thereby promised to pay," although the note appears on its face to have been executed by defendant as agent for another person.*

Execution by copartners. Where a note purports to be signed by two or more, an averment that they signed as partners is immaterial," and it is not necessary to allege the firm name or the style in which they do business;10 but if necessary to charge defendants as copartners, the intention should clearly appear.11

[ 1146] e. Execution by Agent or Representative. The execution of the instrument by an agent may be averred to be the act of the principal,2 saying nothing about the agent; or defendant may be alleged to have made the instrument by his agent.* Under either form. of allegation, it is unnecessary to allege the authority of the agent, as that is necessarily implied in the allegation that defendant executed the instrument and must be proved by plaintiff to support such allegation. In the absence of such allegations of execution by the 98. Power of corporation see in- | Emory, 8 Wheat. (U. S.) 642, 5 L. ed. fra 1147. 705. 99. Carrier v. Cameron, 31 Mich. 373, 18 AmR 192; Montague v. Millstone Turnp. Church School Dist. No. 3, 34 N. J. L. 218; Beal v. Alexander, 6 Tex. 531; Veeder v. Lima, 11 Wis. 419.

5

Where personal representatives execute a note or like instrument, allegations showing their intention to sign in a representative capacity will be sufficient to bind the estate,12 unless the complaint shows that the note in his name, so as to make the note evidence under the statute, unless contradicted by a sworn plea. Brooks v. Harris, 12 Ala. 555.

[b] Principal not named.-On a note executed by an agent, which does not show on its face who is principal, the declaration may allege that defendant made the note through his agent. Tarver v. Garun-lington, 27 S. C. 107, 2 SE 846, 13 AmSR 628.

[a] Reason for rule.-It is necessary to anticipate and to negative defenses. Carrier v. Cameron, 31 Mich. 373, 18 AmR 192.

[b] Capacity of partnership.-An indorsed count on a note against copartnership makers need not specially allege the firm's capacity to make notes or set forth facts wherefrom such capacity may be implied. Carrier v. Cameron, 31 Mich. 373, 18 AmR 192.

[c] Notes executed by an infant. -A declaration on notes executed by a minor is demurrable where the minority of such maker appears on the face of the declaration, and there is no averment that the notes were given for necessaries. Latham v. Kolb, 76 Ga. 291.

1. Beal v. Alexander, 6 Tex. 531. 2. U. S.-Sherman v. Comstock, 21 F. Cas. No. 12,764, 2 McLean 19.

Cal. Santa Rosa Bank v. Paxton, 149 Cal. 195, 86 P 193.

Ga.-Burkhalter v. Perry, 127 Ga. 438, 56 SE 631, 119 AmSR 343.

Ind.-Fraser v. Spofford, 5 Blackf.

3. Moore v. McClure, 8 Hun (N. Y.) 557.

"The simple allegation that the defendant made, signed, and delivered the notes would have served to state a cause of action, so far as that fact is concerned, and to let in evidence showing that the signing and delivery was by an attorney in fact thereunto duly authorized." Santa Rosa Bank v. Paxton, 149 Cal. 195, 198, 86 P 193.

4. U. S. Childress v. Emory, 8 Wheat. 642, 5 L. ed. 705; Sherman v. Comstock, 21 F. Cas. No. 12,764, 2 McLean 19.

Ill. Graham v. Eiszner, 28 Ill. A. 269.

Kan.-Abeel v. Harrington, 18 Kan.

243.

N. Y.-Schuylerville Nat. Bank v.
Van Derwerker, 74 N. Y. 234 [aff in
effect National Bank v. Lasher, 1
Thomps. & C. 313]; Moore v. Mc-
Clure, 8 Hun 557 [dist Oxford First
Nat. Bank v. Turner, 24 NYS 793].
S. C.-Tarver v. Garlington, 27 S.
C. 107, 2 SE 846, 13 AmSR 628.

[a] An allegation that a particular person "by his agent... made" the note, without stating that he signed it, is sufficient. Childress v.

5. Sherman v. Comstock, 21 F.
Cas. No. 12,764, 2 McLean 19; Hanger
v. Dodge, 24 Ark. 208; Santa Rosa
Bank v. Paxton, 149 Cal. 195, 86 P
193; Moore v. McClure, 8 Hun (N.
Y.) 557 [dist Oxford First Nat. Bank
v. Turner, 24 NYS 793]. See also su-
pra § 1145.
[a]

[b] Power of attorney annexed.— (1) Where authority is alleged by power of attorney, which power of attorney is annexed to the complaint and does not purport to grant the authority alleged, no relief can be had. Brown v. Rouse, 93 Cal. 237, 28 P 1044. (2) But where the power of attorney annexed to the complaint as an exhibit shows a grant of sufficent authority, the complaint is good on demurrer. Santa Rosa Bank v. Paxton, 149 Cal. 195, 198, 86 P 193 (where the court said: "Conceding that any reference to the power of attorney was necessary at all in view of the allegation that the notes were executed, the most that could be claimed with respect to the allegation as to the authority of the agent to execute them, is that it is defective in form. This defect was absolutely removed by the reference to the power of attorney which was atin-tached as an exhibit, and which showed beyond controversy that the maker of the notes did thereby authorize B. W. Paxton to execute the same as her agent").

Reason for rule.-"We think the count is sufficient. It avers that the defendant, by her agent, in consideration of goods etc., sold and delivered to her, made her note. The statement that it was made by her agent was unnecessary, and is superfluous. The allegation that the defendant made her note, when it appears to have been in fact signed by another party, necessarily cludes the allegation that such other party was duly authorized to make the note in behalf of the defendant, and under it proof could have been given, and would be requisite, to establish that it was in fact the note of the defendant, by proving the authority of the agent to make the note in her behalf. It could not be true that she made and delivered her note, unless the agent was duly authorized to make and deliver the note in her behalf. The fact that the name of the principal does not appear on the face of the note is not, under the modern decisions in this State, at all conclusive. If it was intended to be given in the business of the principal, was in fact so given, and with due authority, it is binding on the principal, and all this is matter of evidence, all covered by the averment that it is the note of the principal." Moore v. McClure, 8 Hun (N. Y.) 557, 558.

[b] Agency admitted by demurrer.-A complaint alleging that defendant, through his agent, made his note in writing, etc., is good on demurrer, although there is nothing on the face of the note to show who the principal is. Tarver v. Garlingtor, 27 S. C. 107, 2 SE 846, 13 AmSR 628.

6. May v. Kelly, 27 Ala. 497; Brooks v. Harris, 12 Ala. 555; Childress v. Miller, 4 Ala. 447; Oxford First Nat. Bank v. Turner, 24 NYS 793 [dist Moore v. McClure, 8 Hun (N. Y.) 557].

[a] Sufficiency of averment.-An allegation in the declaration that the note on which the suit was brought was made by a person named, acting for himself and as joint owner with another of a boat, is not an allegation that the former had authority, as the agent of the latter, to execute

7. Liability of principal on instrument executed by agent see supra §§ 265-284.

8. Albany Furniture Co. v. Merchants' Nat. Bank, 17 Ind. A. 531, 47 NE 227, 60 AmSR 178; McMartin v. Adams, 16 Mo. 268.

9. Davis v. Abbott, 7 F. Cas. No. 3,622, 2 McLean 29; Whitwell V. Thomas, 9 Cal. 499.

10.

Lucas v. Baldwin, 97 Ind. 471; Jackson v. Burgert, 28 Ind. 36. 11. Riggs v. Andrews, 8 Ala. 628 (holding that a note containing the signature of a firm in liquidation, made by one of the members thereof, that is, "Gayle & Bowers, in liquidation, By Wm. Bower," may properly be declared on as a note of the partnership).

[a] By firm name.-In declaring against an indorser, it is sufficient to describe the note as being made by a firm in their copartnership name, without setting forth at large the names of the persons composing the firm. Bacon v. Cook, 3 N. Y. Super. 77.

[b] A note executed by one partner may be averred to have been made by the firm. Porter v. Cumings, 7 Wend. (N, Y.) 172.

[c] Ambiguity.—A complaint which in the caption describes defendants as two persons doing business as a firm, but in the body of the complaint alleges a cause of action against "above named defendant," without designating which of the defendants is a firm, or which of them executed the note in suit, is fatally ambiguous. Hawley Bros. Hardware Co. v. Brownstone, 123 Cal. 643, 56 P 468.

12. Storey v. Nichols, 22 Tex. 87.