out any averment of notice of this demand and non-payment to the plaintiff, or of any fact excusing notice, it was on demurrer held insufficient (Shultz v. Depuy, 3 Abb. 252). Where the plaintiff in an action on a check relies on facts which excuse notice of presentment and non-payment, he must state such facts in his complaint. An averment of due notice will not be sustained by evidence of facts excusing notice (Garrey v. Foctor, 4 Sand. 665, and see Oakley v. Morton, 1 Kernan, 26; Holmes v. Holmes, 5 Selden, 325).

a. Promissory notes. (See Bill of Exchange, and section 162, post.)—By receiver.-Where a plaintiff claims title to a note, by virtue of his appointment as receiver of an insurance company styled A., and the note is payable to a company styled B., the complaint should contain averments to show that the note in suit does in fact form part of the assets of the A. company. Thus, if after the making of the note the style of the company had been changed, the complaint should allege, that the company was originally incorporated in the name A., and transacted business in that name, and so transacted business at the time the note was made, and that afterwards, by virtue of the act of &c., it was reorganized in the name of B.,-and then set out the proceedings by which he was appointed receiver, &c. (Hyatt v. McMahon, 25 Barb. 457).

b. Note signed in a firm name.-In an action against J. M., H. M. & J. C., the complaint set out a note signed “J. M. & Co., and indorsed H. M. & J. C." The plaintiff claimed as indorsee. Defendant demurred for not stating facts sufficient, &c., and the objection was that a note made by J. M. & Co. was not the note of J. M. The objection was held good, and that it was an objection which might be taken under that ground of demurrer. To have made the complaint sufficient, it should have been alleged that J. M. made the note in the name of J. M. & Co. (Price v. McClave, 6 Duer, 544; see Ball v. Gordon, 9 M. & W. 345; Tigar v. Gordon, id. 347).

c. Against maker.-A complaint that defendant, on, &c, for value received, made and delivered to plaintiff his promissory note in writing, payable to the order of the plaintiff, and endorsed by him, of which the following is a copy: New York, July 1, 1853. Sixty days after date, I promise to pay to the order of E. K. $204 for value received.-J. M. That there is due and owing the said plaintiff, the said sum of $204, with interest thereon, from, &c., wherefore the plaintiff demands judgment for, &c., was on demurrer that it did not state facts sufficient, &c.; held sufficient Keteltas v. Myers, 19 N. Y. 231; reversing S. C. 3 E. D. Smith, 83). Where the complaint stated that on, &c., defendant made his promissory note, dated on the day last named, whereby, on demand, he promised to pay to the plaintiff, or his order $2,500, for value received, and then and there delivered 'said note to the plaintiff. And defendant, though often requested, has not paid said note or any part thereof, and the whole amount thereof is now remaining due and unpaid. The defendant demurred for not stating sufficient facts to constitute a cause of action. The complaint held sufficient (Niblo v. Harrison, 7 Abb. 447, and note).

d. In Genet v. Sayre, 12 Abb. 347, a complaint as follows was on demurrer held to be sufficient: that defendant at, &c., made his promissory note in writing, dated, &c., whereby he promised to pay, two months after the date thereof, to the order of the Hanover Bank $400 for value received, and although said note became due before the commencement of this action, yet defendant has not paid same, and plaintiff says he is the lawful holder and owner of said note, and defendant is justly indebted to him thereon in $400 principal with interest from, &c.

Where the complaint alleged that on, &c., " the defendant by his promisory note in writing, for value received, promised to pay to P. [the plaintiff, or bearer, the sum of $839 with interest, and he has not paid the same, but is justly indebted to the plaintiff therefor, wherefore the plaintiff demands judg ment, &c., on demurrer it was held sufficient (Peets v.

by the

court,

"This complaint is very loose."

Bratt, 6 Barb. 662). But

f. A complaint alleged the making of the note by the defendant John Totten, payable to the order of the defendant William Totten; that John Totten delivered the note to William Totten, "who thereupon indorsed the same and

64

duly delivered it; and said note, before it became due, was duly delivered to, and came into the possession of the plaintiffs." The defendant demurred on the ground that the complaint did not state facts sufficient, &c. The plaintiff moved for judgment on the demurrer as frivolous. The motion was denied, and the complaint held insufficient in not alleging how the note was indorsed, whether in blank or otherwise, nor by whom it was delivered to the plaintiff (Parker v. Totten, 10 How. 234). And where a complaint alleged that the defendant on, &c., made his promissory note in writing, dated on that day, whereby, for value received, he promised to pay to W. Rork or order $132, six months after date, for value received, with use, and then and there delivered the said note to the said W. Rork; this was followed by a copy of the note, purporting to be signed by the defendant; and then followed an allegation that the plaintiff was the bona fide holder and owner of the said note, that the defendant had not paid the same or any part thereof, but was justly indebted to the plaintiff therefor. On demurrer that the complaint did not state facts sufficient, &c., it was held that the complaint was insufficient, as it did not show that W. Rork had ever indorsed the note or otherwise passed his interest therein (White v. Brown, 14 How. 282; and see Thomas v. Desmond, 12 id. 321). But where the complaint, after alleging (it is presumed; the report does not say so) the making of the note, also alleged that the note was duly endorsed by the payee, and transferred to the plaintiff for a good and valuable consideration, and that the defendant had not paid the same, but was justly indebted to the plaintiff therefor,"-the defendant demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action, and it was contended that it was not shown that the plaintiff was the holder and owner of the note. The demurrer was adjudged frivolous (Taylor v. Corbiere, 8 How. 388). And where a complaint on a promissory note alleged that he defendant made the note payable to his own order, and indorsed it to J. M., and "the plaintiff is now the bona fide holder and owner of the note," the defendant demurred on the ground "that no facts were stated showing how the plaintiff became the holder and owner of the note." On motion for udgment, Harris, J., held the demurrer frivolous; that the complaint stated enough to entitle the plaintiff to recover (Holstein v. Rice, 15 How. 1). And where the complaint averred that the defendant made his note to the Atlas Mutual Ins. Co. or order, and that the company indorsed it and transferred ..nd delivered it to the plaintiffs, but did not expressly aver that the transfer was made pursuant to à resolution of the board of directors-Held, on demurer, that if such resolution was necessary, it was implied and provable under the allegation that the company transferred the note (Nelson v. Eaton, 15 How. 305; 7 Abb. 305; see Mechanics' B'k'g Asso. v. Spring Valley Shot Co., 25 Barb. 419; rev's'g, 13 How. 227; N. Y. Floating Derrick Co. v. N. J. Ore Co., 3 Duer, 648). a. The complaint set forth that the defendant made his promissory note in these words: (date) On, &c., I promise to pay to V. C. (the plaintiff), agent o the company, B. G. & Co., $5,000, for which I am to receive stock of said company to the amount of $5,000, value received; A. Brisbane (the defendant). It then alleged the delivery of said note to plaintiff, its non-payment, and that defendant was indebted thereon $5,000. The defendant demurred that the complaint did not state facts, &c. The demurrer was sustained, principally on the grounds that the instrument set out was not a promissory note, and that there was no allegation that the plaintiff had ever tendered the stock to the defendant (Considerant v. Brisbane, 14 How. 487; 2 Bosw. 471).

b. Query.-Where a note is made by A, payable to B or his order, and indorsed in blank by C, can B sue C as maker or guarantor of the note (See Waterbury v. Sinclair, 16 How. 329; 7 Abb. 399; 6 id. 20; Murphy v. Merchant, 14 How. 189; Hahn v. Hull, 4 E. D. Smith, 664; Hauck v. Hund, 1 Bosw. 431)? He can (Moore v. Cross, 19 N. Y. 227; 17 How. 385; Spies v. Gilmore, 1 Coms. 321; Cottrell v. Conklin, 4 Duer, 45).

c. Against indorser or indorser and maker.-As against an indorser, the complaint must allege presentment at the place where made payable, and nonpayment, and notice to the indorser of such presentment and non-payment

(Spellman v. Weider, 5 How. 7; Price v. McClave, 6 Duer, 544; Spencer v. Rogers Locom. Works, 17 Abb. 110). An allegation that the note was protested is not an averment, nor equivalent to an averment, that the note had been duly prosented for payment to the maker, and that payment had been refused (Price v. McClave, 3 Abb. 254; and 6 Duer, 547).

a. In an action against two, one as maker and the other as endorser of a promissory note, payable to the order of the plaintiff and endorsed by him, the complaint averred that the note was made by the defendant, G. F. M., and "for a further inducement to the plaintiff to accept the same, was endorsed by the defendant M. I. M., and was then delivered and endorsed by the plaintiff," and then set out the note and alleged demand and refusal of payment and notice thereof. The defendant, the alleged maker of the note, demurred that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was allowed, and 3 Sand. 647; 2 Duer, 40, were referred to (Murphy v. Merchants, 14 How. 190).

b. In Pahquinque Bank v. Martin, 11 Abb. 291, it was held that a complaint against an endorser which alleged that the note was duly presented and payment demanded, but it was not paid, and it was thereupon duly protested for non-payment," and due notice of such non-payment was given to defendants" was held insufficient on the ground that notice of non-payment was not notice of dishonor (see, however, Ferner v. Williams, 14 Abb. 215).

e. To charge the endorser on a note payable at a particular place, the note must be presented at that place, and in a complaint against such endorser, presentment at that place must be alleged, but an allegation that the note at maturity was duly presented to the maker for payment, was held, by force of section 162, a sufficient averment of presentment at the place named (Ferner v. Williams, 14 Abb. 215; see, however, Pahquioque Bank v. Martin, 11 Abb. 291).

d. Where the complaint alleges the making of the note, its endorsement by the payee W. D., to plaintiff, and that payment of the note was duly demanded at maturity, and it was thereupon duly protested for non-payment, and notice thereof duly given to the endorser-held sufficient by virtue of section 162 (Adams v. Sherrill, 14 How. 297).

e. A complaint on several promissory notes, only one of which is due, but payment of all of which is claimed under an agreement in writing made contemporaneously with the notes, that in case of any default in payment of the notes the whole amount should forthwith become due and payable, is sufficiently definite and certain, if it alleges the making of the notes in consideration of an indebtedness in their amount, and the making of the agreement, without stating when, where, or how the indebtedness arose (Brown v. So. Mich. R. R. Co., 6 Abb. 237).

f. A complaint which alleged that S. W. W., and W. W. as his surety, on, &c., at, &c., made their promissory note in writing, whereby they promised to pay to F. W. or order, ninety days after date, $100 for value received; that said F. W. endorsed said note to plaintiff, and that when said note became due, it was duly presented for payment to defendant S. W. W. and payment duly demanded, but was not paid, and due notice given to defendants W. W. and F. W. that plaintiff is the lawful owner and holder of said note, that same is not paid, and that defendants are indebted to plaintiff thereon in $100,-was held sufficient (Osgood v. Whittlesey, 10 Abb. 134).

g. Premium note.-In an action on a premium note to recover an assessment, a demand of payment before action brought should be alleged, semble (Hurlbut v. Root, 12 How. 511).

h. Lost note-Destroyed note.-A plaintiff cannot recover on a lost note without giving the bond required by 2 R. S. 406 (Desmond v. Rice, 1 Hilton, 530; and see Smith v. Young, 2 Barb. 545); but where the note has been destroyed, the owner may maintain an action for the amount without giving a bond (Des Artes v. Leggett, 16 N. Y. 382).

a. Dishonoring note.-Complaint against banker for dishonoring note (Marzetti v. Williams, 1 B. & A. 415).

b. Carriers-for non-delivery or loss of goods.-[The material allegations are, (1) defendants were common carriers; (2) received plaintiff's goods; (3) for reward paid [or to be paid] them; (4) undertook to carry and deliver; (5) the non-delivery.]

c. Unless the plaintiff alleges in the complaint that the defendants were common carriers, they cannot be held responsible in that character; and unless it is alleged that the defendants received or were to receive compensation, their promise to carry will be regarded as made without consideration (Bristol v. Rensselaer R. R. Co., 9 Barb. 158). It is not necessary to allege what was the reward paid or to be paid (2 New Rep. 458; 13 East, 114, note a; 2 Ld. Raym. 115); and perhaps stating that the defendants received implies that they were to be paid therefor (Nolton v. West. R. R. Corp., 15 N. Y. 446). It seems no previous demand of the goods is necessary (Schroeder v. Hudson R. R. Co., 5 Duer, 55). It is not necessary to allege that the loss was without any fault on the part of the plaintiff (Richards v. Wesicott, 2 Bosw. 590).

d. What must be alleged in a complaint to recover for goods received by one railroad to be transported over its line, and over a line connected therewith, and lost on the road (Hempstead v. N. Y. Cent. R. R. Co., 28 Barb. 502).

e. In an action against a carrier by water for the loss of goods, it is unnecessary to allege that the defendant was the owner of the vessel in which the goods were shipped; and if an allegation of ownership is made it is immaterial (Bennion v. Davidson, 1 Horn & H. 46).

f. For injury to passengers.-Where a railroad company undertakes gratuitously to convey a passenger, and he receives an injury by the negli gence of the company's agent, the company is liable; in such case a complaint which stated that defendants received plaintiff as a passenger, and while he was a passenger, he, by the negligence of the defendants was injured, was held to state a cause of action (Nolton v. West. R. R. Corp. 15 N. Y. 444).

g. For refusing to carry goods.—In an action against a common carrier for refusing to carry goods, it is only necessary to aver that the plaintiff was ⚫ ready and willing to pay what the defendant was legally entitled to receive for the receipt and carriage of the goods; it is not necessary to aver an actual tender of the amount (Pickford v. Grand Junc. Railway Co., 8 M. & W. 372; 9 D. P. C. 766).

h. Against a constable for not returning an execution.-In order to maintain an action against a constable and his sureties, for not collecting an execution issued by a justice of the peace, the plaintiff must show a valid judgment in an action in which the justice had jurisdiction both of the subject-matter of the action and of the person of the defendant (Westbrook v. Douglass, 21 Barb. 602). See as to liability of constable for not returning executions from district courts in the city of New York, Laws 1857, vol. 1, p. 722, § 57.

i. For surplus money.-In an action against a constable for surplus money collected by him on an execution, the complaint must show that the return day of the execution is past, a demand of such surplus money, and a refusal or neglect to pay the same (Bortel v. Astrander, 15 How. 572). And the same was held of a sheriff (Ainslie v. Rapelje, 3 Up. Can. Q. R. Rep. 275; see, however, 9 Iredell's R. 307, 496).

j. For refusing to receive a bond and deliver goods taken under an attachment.-See Kamena v. Warner, (6 Abb. 193; 4 Duer, 698; overruling S. C. 15 How. 5); see Bond, Money Received.

k. By or against corporations.-The code contains no new enactments in respect to pleadings in suits by corporations; and the provisions of art. 1, tit. 10, ch. 8, pt. 3 of the revised statutes are expressly retained (Code, § 471); so that the rules of pleading in these actions are the same as they were at common law, with only the modifications introduced by the revised statutes

At common law it was well settled that when an action was brought by corporation they need not show how they were incorporated.

By the revised statutes two changes were introduced; the first, that it should no longer be necessary for a corporation plaintiff to prove itself a corporation, unless its corporate existence was denied by a plea averring that it was not a corporation. * The other was, that in stating or averring an act

of incorporation, or the corporate character of a party plaintiff or defendant, it should not be necessary to recite the character or the proceedings creating the corporation, or to set forth the substance of such act of incorporation, but it should be enough to state the act under which the corporation was created, by its title and the date of its passage (B'k. of Waterville v. Beltser, 13 How. 272); and where the act of incorporation has been amended it is sufficient, after designating the act of incorporation, to say, "together with the several acts amendatory thereof" (Sun Mut. Ins. Co. v. Dwight, 1 Hilton, 50; and see Oswego & Syracuse Plank Road Co. v. Rust, 5 How. 390). Since the code, as before, a domestic corporation plaintiff needs not in the complaint in any manner show how it was created (id.; La Fayette Ins. Co. v. Rogers, 30 Barb. 491; Elizabethport Manuf. Co. v. Campbell, 13 Abb. 86); nor recite the title or the date of the act of incorporation (Shoe & Leather B'k. v. Brown, 9 Abb. 218; 18 How. 308; Kennedy v. Cotton, 28 Barb. 59); and where plaintiffs sue in a name which is appropriate to a corporate body, for example, as The Union Mutual Insurance Company, the plaintiff will be intended for all the purposes of the suit to be a corporation, unless the contrary be averred in the answer (Laws of 1845, ch. 345); and the plaintiffs need not aver it in their complaint, because it is a general rule that it is unnecessary to aver anything in the complaint that is not required to be proved; and a corporation plaintiff created by the laws of this State, need not prove its existence on the trial of the cause unless the defendant shall have pleaded that the plaintiffs are not a corporation (Mut. Ins. Co. v. Osgood, 1 Duer, 708; Holyoke B'k. v. Haskins, 4 Sand 675; Metrop. B'k. v. Lord, 1 Abb. 185; La Fayette Ins. Co. v. Rogers, 30 Barb. 491; Light v. Everett Fire Ins. Co., 5 Bosw. 716); and a mere general denial will not call for this proof (B'k. of Genesee v. Patchin B'k., 3 Kernan, 314; contra, Johnson, Pres't., &c., v. Kemp, 11 How. 186; Bk. of Havana v. Wickham, 16 How. 97; 7 Abb. 134; and see B'k. of Lowville v. Edwards, 11 How. 216).

a. In an action by a foreign corporation, the complaint must state that the plaintiffs are a corporation, except in the cases where the defendant is estopped from denying the incorporation, as by having contracted with the plaintiffs by their corporate name (Connecticut Bank v. Smith, 9 Abb. 168; 17 How. 487). Thus, where the plaintiffs sued as The President, Directors and Company of the Connecticut Bank, claiming to recover as the endorsees of notes made by the defendants, but did not aver that they were a corporation, held on demurrer that the complaint was insufficient (i.); and subscribers to a stock subscription cannot question the right of the corporation to sue (Owego Plank Road Co. v. Rust, 5 How. 390).

6. In an action brought by a religious society, the plaintiffs must prove their corporate existence, if that fact is denied by the answer (Methodist Epis. Union Thurch v. Picket, 23 Barb. 436; aff'd 19 N. Y. 484).

e. In an action by the officer of a joint-stock company, the allegation in the complaint that that the company is a joint-stock company or association, consisting of more than seven shareholders or associates, is, under the act of 1849 relating to such suits, a material and issuable allegation (Tiffany v. Williams, 10 Abb. 204).

d. A plaintiff by suing a defendant by a corporate name, admits the corporate existence of the defendant, and must be held to have admitted the performance by it of all such acts as by its charter were conditions precedent to its entering upon a state of legal existence (The People v. Ravenswood Turnpike Co., 20 Barb. 524).

e. In suing a corporation by its corporate name, the plaintiff need not set out the act of incorporation (Stoddard v. Onondaga Ann. Conf., 12 Barb. 578), nor allege that defendants are a corporation (Lighte v. Everett Ins Co, 5 Bosw.