IV. That due notice of the dishonor was served upon the defendant, John B. Astor, accompanied by the bond of indemnity required by statute. V. That plaintiff is now the lawful owner and holder of said note, and that there is due to him thereon, from the said defendant, the sum of five hundred dollars, with interest from the 11th day of July, 1865. (Demand.) (Verification.) 7. The indorser of commercial paper guaranties that he has a good title, and that all the antecedent signatures are genuine. The indorser guaranties that the maker will pay the same at maturity, on due presentment: that if, when duly presented, it is not paid by the maker, he, the indorser, will, upon due notice given him of the dishonor, pay the same to the indorsee or holder. The obligation of the indorser to the indorsce and subsequent holder is conditional. The holder undertakes to present the note to the maker at maturity, and demand immediate payment; and if the same is not paid, he undertakes to give notice of the dishonor, without delay, to all persons whose names are upon the note or bill, between himself and the maker, whom he wishes to bind absolutely to the payment thereof, and who would have an action against the primary debtor on paying the same. If the holder neglects to make the demand at maturity, and to give immediate notice to the indorsers, the indorsers will be discharged, unless there is some reasonable excuse for delaying to make the demand and give the notice. 8. The drawer of a bill of exchange guaranties that the drawee will accept the bill in writing, on presentment, and that he will pay the same at maturity, on presentment that if the drawee does not accept and pay the 7. What does the indorser guaranty in reference to his title? In reference to antecedent signatures? What does he guaranty as to the maker? If the maker does not pay the same on presentment at maturity? Is the obligation of the indorser conditional or absolute? What does the holder undertake to do? To whom must he give notice of dishonor? If he neglects to make the demand at maturity, and to give immediate notice to the indorsers, what is the effect? 8. What does the drawer of a bill of exchange guaranty that the bill, he, upon notice of dishonor, will pay the same, together with such damages as the law allows as an indemnity. A bill is said to be honored, when it is accepted. When it becomes payable, it has arrived at maturity. When acceptance or payment is refused, it is dishonored. 9. An indorsement is presumed to have been made before the maturity of the note or bill. The indorsement is also presumed to have been made for a valuable consideration. The allegation of indorsement and delivery by the payee is necessary, when the note is made payable to his order. The plaintiff must show that he became the owner of the note before the action was commenced. The production of the note on the trial, indorsed to him or indorsed in blank, raises the presumption that he became the owner thereof for value, and before maturity. Evidence on the part of the defendant that the note was lost or stolen rebuts the presumption that it was received by the plaintiff before maturity, and for value. The plaintiff must then produce direct evidence that he took the note in good faith before maturity, and for value. If the holder is not one of the original parties, it is necessary to aver distinctly that he is now the owner and holder thereof. drawee will do? If the drawee does not accept and pay the bill? When is a bill said to be honored? When does it become payable? When is it dishonored? 9. When is an indorsement presumed to have been made? What is the presumption as to consideration? When is the allegation of indorsement and delivery by the payee necessary? At what time must the plaintiff show that he became the owner and holder of the note? What raises the presumption that he became the owner thereof for value, and before maturity? What is the effect of evidence on the part of the defendant that the note was lost or stolen ? What evidence must the plaintiff then produce? If the holder is not one of the original parties, what is necessary to aver? CHAPTER XCVI. ACTIONS AGAINST INDORSERS. 1. WHEN an action is commenced against the maker and indorsers, the facts which constitute the cause of action are set forth as follows: (Title.) (Commencement.) I. That the defendant, William Blake, at the city of New York, on the 8th day of June, 1865, made his promissory note, in writing, and delivered the same to defendant, John B. Astor, of which the following is a copy: JOHN B. ASTOR. JOHN FOSTER. $500. NEW YORK, June 8, 1865. "One month after date, I promise to pay John B. Astor, or order, five hundred dollars, value received. "WILLIAM BLAKE." II. That the defendant, John B. Astor, indorsed the same for value, and delivered the same so indorsed. III. That thereafter the defendant, John Foster, indorsed the same for value, and delivered the same so indorsed; and thereafter, and before maturity, it lawfully came to the possession of plaintiff for value. IV. Plaintiff further states, upon information and belief, that at maturity said note was duly presented for payment, but was not paid, of which the defendants, John B. Astor and John Foster, had due notice. V. That plaintiff is now the lawful owner and holder of said note, and that there is due to him thereon, from the defendants, the sum of five hundred dollars, and interest from the 11th day of July, 1865. (Demand.) (Verification.) 2. When an action is brought by the holder of a bill of exchange against the drawer, acceptor, and indorser, 1. When the action is commenced against the maker and indorsers, how are the facts which constitute the cause of action set forth? 2. When an action is commenced against the drawee, acceptor, and in the facts constituting the cause of action are stated in the complaint as follows: (Title.) I. That at the city of New York, on the 8th day of June, 1865, defendant, William Blake, made his certain bill of exchange, in writing, and delivered the same to defendant, John B. Astor, of which the fol lowing is a copy: Accepted, JOHN FOSTER. JOHN B. ASTOR. 66 $500. NEW YORK, June 8, 1865. "One month after date, pay to the order of John B. Astor five hundred dollars, value received, and put the same to my ac count. "To JOHN FOSTER, New York city." "WILLIAM BLAKE. II. That the defendant, John Foster, then and there accepted the said bill according to the terms thereof, and delivered the same to John B. Astor. III. That thereafter the defendant, John B. Astor, indorsed the same for value, and delivered the same so indorsed; and thereafter, and before maturity thereof, it lawfully came to the possession of the plaintiff for value. IV. Plaintiff further states, on information and belief, that at maturity said bill of exchange was duly presented for payment, but was not paid, of which the defendants, William Blake and John B. Astor, had due notice. V. That plaintiff is now the lawful owner and holder of said bill of exchange, and that there is due to him thereon from the defendants the sum of five hundred dollars, with interest from the 11th day of July, 1865. (Demand.) 3. If the note or bill is made payable at a particular place, it must be presented there for payment, in order to bind the indorsers. It is not necessary, however, to allege in the complaint that the note or bill was there presented for payment. It will be sufficient to allege that it was dorser of a bill of exchange, how are the facts which constitute the cause of action set forth in the complaint? 3. If a note or bill is made payable at a particular place, where must it be presented for payment? Is it necessary to allege in the complaint that it was presented at that place? What allegation will be sufficient? duly presented for payment. Formerly, evidence of facts excusing non-presentment and want of notice was admissible under an allegation of due demand and notice. Under the Code, the plaintiff must plead the facts constituting his excuse, if he wishes to prove such excuse on the trial. Under an allegation of performance, evidence of facts excusing non-performance is not admissible. An allegation in a complaint against an indorser, that the note. was duly presented to the maker and payment demanded, is proper when it was presented at the last place of residence and business from which the maker had recently removed, and after diligent inquiry could not be found, so that it could be presented to him personally. 4. When non-presentment is excused, because the maker of the note or acceptor of the bill could not be found, the facts constituting the cause of action are set forth in the complaint in the following form: (Title.) (Commencement.) I. That the defendant, William Blake, at the city of New York, on the 8th day of June, 1865, made his promissory note in writing, and delivered the same to John B. Astor, of which the following is a copy : JOHN B. ASTOR. JOHN FOSTER. "$500. NEW YORK, June 8, 1865. "One month after date, I promise to pay John B. Astor, or order, five hundred dollars, value received. "WILLIAM BLAKE," II. That the defendant, John B. Astor, indorsed the same for value, and delivered the same so indorsed. III. That the defendant, John Foster, indorsed the same for value, and delivered the same so indorsed; and thereafter, and before its maturity, it lawfully came into the hands of plaintiff for value. IV. Plaintiff further states, on information and belief, that at the ma What was the former rule as to the admissibility of the evidence of facts excusing non-presentment and want of notice? What is the rule under the Code? What is not admissible under an allegation of performance? If presentment were made at his last place of business or residence from which the maker had recently removed? 4. When non-presentment is excused, because the maker of the note could not be found, how are the facts constituting the cause of action stated in the complaint? |