a note is not pleadable as a payment;70 nor can the indorser set up that the holder of a note past due has taken a fresh obligation from the maker merely as collateral security." A bill of sale made by the payee of a promissory note "of all debts, notes, and accounts of whatever nature due me," is not evidence of the payment of the note.72 A plea to a suit brought by an assignee, that the defendant paid amount of note to assignor before he had notice of an assignment, can not be sustained against assignee. It should aver that the payment was made before the note was assigned, or before it was due.78

3511. Practice. If judgment is rendered against A. upon several promissory notes signed by him, and one of the notes is also signed by B. and C., who are made parties defendant, but who are not served with process and do not appear, B. and C. may be brought into court to show cause why they should not be bound by the judgment to the extent of the note which they signed, and they may be declared bound by it, A. having been served, and having permitted judgment to go against him by default.74

§ 3512. Several defenses - sham answers. Where the makers and several indorsers of a note are sued in one action, an answer by the makers will not inure as an answer by the indorser, nor will the answer of one of several indorsers inure as an answer of the others.75 Defendant may deny that he made the note, and may also aver that at the time of the alleged making of the note he was an infant; although it was true that if he never made the note it is quite immaterial whether be was an infant or not.76 He may also set up as a defense that no consideration was ever given for it, and as a second defense set forth the circumstances under which it was executed and came into the plaintiff's hands. It was held that the first

70 East Riv. Bank v. Butterworth, 45 Barb. 476; but see Jones v. Snow, 1 West Coast Rep. 465.

71 Taylor v. Allen, 36 Barb. 294; see Wright v. Storrs, 32 N. Y. 691.

72 Morrill v. Morrill, 26 Cal. 288.

73 Patterson v. Atherton, 3 McLean, 147.

74 Sneath v. Griffin, 48 Cal. 438.

75 Alfred v. Watkins, 1 Edm. 369.

76 Mott v. Burnett, 2 E. D. Smith, 50.

branch of the answer must be interpreted by the second, and that so interpreted it was no defense." Where a complaint, in an action on a promissory note, executed by two defendants, averred that the defendants were partners, and that the note was executed by them, and the answer simply denied that the defendants were partners, and did not deny that they executed the note, it is the denial of an immaterial averment.78 Plaintiff sued on a note made by defendants to his order, the complaint not being verified, but setting out the note. Defendants pleaded payment. Plaintiff, on affidavits that the plea was false and pleaded in bad faith, moved to strike out the answer, and for judgment. This was granted. It was held that the ruling of the court was right; that under the fiftieth section of the Practice Act," 79 "sham" answers and defenses are such as are good in form but false in fact, and pleaded in bad faith; and that such answers, when consisting of affirmative defenses, should be stricken out.80 In a suit on a note, the complaint containing the note or a copy, a denial of indebtedness is no denial at all.81 So an answer which simply denies a legal conclusion will be struck out as a sham.82

§ 3513. Special indorsee. In an action on a promissory note, by a special indorsee against the maker, the plaintiff must prove at the trial the genuineness of the indorsements, although the defendant has not denied their genuineness under oath.83 A general indorsement is one by which no indorsee is named.84 A special indorsement specifies the indorsee.85

§ 3514. Substitution of parties. On death of the defendant, in action on promissory note, the substitution of administrator and continuance of the suit subjects the proceedings to such

77 Ryle v. Harrington, 4 Abb. Pr. 421.

78 Whitwell v. Thomas, 9 Cal. 499.

79 Cal. Code Civ. Pro., § 453.

80 Gostorfs v. Taaffe, 18 Cal. 385.

81 Kinney v. Osborne, 14 Cal. 112.

82 Wedderspoon v. Rogers, 32 Cal. 569.

83 Grogan v. Ruckle, 1 Cal. 158; reconsidered and affirmed in Hastings v. Dollarhide, 18 Cal. 390.

84 Cal Civil Code, § 3112.

85 Id., 3113. As to liability of an indorser "without recourse," see Id., § 3118.

rules as are applicable for the collection of claims against the estate of a deceased person.86

§ 3515. Surety. Where a promissory note is signed by two persons in the same manner, with nothing on the face of the note to show that one was merely a surety, he can not set up in defense that he was such, and that the plaintiff had not sued in due time, and had given no notice of demand and protest.87

3516. Tender. That the maker of a note, payable at a particular place, was ready at the time and place to pay is matter of affirmative defense.88 So, also, a bill of exchange, as against the acceptor thereof.89 It would seem that in New York it is essential to an answer setting up a tender to aver that the money had been actually brought into court.90

3517. Verification. A copy of the note sued on being attached to and made a part of the complaint, the answer, not verified, admits the genuineness and due execution of the note, and entitles the plaintiff to judgment.91

The defendant answers to the complaint:

That he did not indorse the note mentioned therein.

§ 3519. Denial of indorsement. In New York, a denial of indorsement and delivery of note by the payee to the plaintiff

86 Myers v. Mott, 29 Cal. 359; 89 Am. Dec. 49; see Cal. Code Civ. Pro., § 1502.

87 Kritzer v. Mills, 9 Cal. 21.

88 Kendall v. Badger, 1 McAll. 523; Wolcott, Adm'r, v. Van Santvoord, 17 Johns. 248; 8 Am. Dec. 396; Caldwell v. Cassidy, 8 Cow. 271; Troy City Bank v. Grant, Hill & D. Supp. 119; Haxton v. Bishop, 3 Wend. 13.

89 Foden v. Sharp. 4 Johns. 183; Green v. Goings, 7 Barb. 652; 17 Mass. 389; Gay v. Paine, 5 How. Pr. 107; Wallace v. McConnell, 13 Pet. 136; see § 242, ante.

90 Hill v. Place, 5 Abb. Pr. (N. S.) 18.

91 Horn v. Volcano Water Co., 13 Cal. 62; 73 Am. Dec. 569; Cal. Code Civ. Pro., § 447.

forms a material issue.92 In an action on a promissory note, an answer denying the indorsement of the note does not put in issue the partnership.93 The action being to charge the defendants as indorsers, the allegation of their partnership is material. A plea that the defendant who is sued as principal indorsed the note as guarantor, and not as principal, is good on demurrer.95 A defendant is not required to deny under oath a matter of which he is not presumed to have any knowledge, and though the genuineness and due execution of a note is admitted if not specifically denied, yet it is otherwise with the indorsement where the defendant was not privy thereto, as the indorsement is alleged merely to show the deraignment of title to the instrument sued on.96

§ 3520. Indorser, liability of. The contract of one who indorses a promissory note after it falls due, and as additional security to prevent legal proceedings being taken against the payee and indorser, is that of a guarantor, and even if based on a valid consideration, is fatally defective, unless the writing express the consideration.97 A guarantor is entitled to notice. of nonpayment.98

§ 3521. Partnership — insufficient denial. A complaint, stating a promissory note, whereby the maker promised to pay the defendant named, "doing business under the partnership name or firm of C. J. & Co.," and that said note was duly indorsed by said defendant by their said partnership name,' sufficiently avers the partnership; and an answer thereto denying "the indorsement in the complaint alleged" does not put the partnership in issue. Hence, under such pleadings, evidence offered by one of the defendants that he was never a member of the firm of C. J. & Co. is inadmissible.99

92 Sherman v. Bushnell, 7 How. Pr. 171; Caswell v. Bushnell, 14 Barb. 393.

93 Anable v. Steam Engine Co., 16 Abb. Pr. 286.

94 Id.

95 Dibble v. Duncan, 2 McLean, 553; compare Janney v. Geiger, 1 Cranch C. O. 547.

96 Mahe v. Reynolds, 38 Cal. 560; Youngs v. Bell, 4 id. 201.

97 Crooks v. Tully, 50 Cal. 254.

98 Id. But see, as to changes made in this rule, Cal. Civil Code, § 2807.

99 Anable v. Conklin, 25 N. Y. 470; affirming S. C., sub nom. Anable v. Steam Engine Co., 16 Abb. Pr. 286.

§ 3522. That defendant indorsed as agent.

[TITLE.]

Form No. 814.

The defendant answers to the complaint:

I. That he did not indorse the note mentioned therein, and that the said note was not protested for nonpayment.

II. The defendant alleges that the following is a true copy of the promissory note made by the said firm of B. & Co., and on which this action is brought [copy of note and indorsement, with addition of "treasurer" to defendant's signature].

III. That at the time of the making and indorsement of said note, this defendant was the treasurer of the Company, at

;

a foreign corporation, duly incorporated by and under the laws of the state of .. and that he was authorized by them to receive the said note, and to indorse the same to the plaintiffs, as such treasurer; of all which facts the plaintiffs had notice.

IV. That said corporation was, at the time of said indorsement, indebted to the plaintiffs to the amount of

dollars, for [state what]; and said note was received by him as such treasurer, and not in his individual capacity, and was received by the plaintiffs as an obligation of the said corporation, on account of said precedent debt due to them from the said corporation, and for and on account of no other consideration whatever, and that the defendant received no consideration therefor.100

The defendant answers to the complaint:

That the bill mentioned therein was never presented to A. B., etc.

§ 3524. Controverting presentment, waiver of. That the maker of the note payable at a particular place was ready at the time and place to pay is matter of affirmative defense.101

100 This form is from Abbott's Forms, No. 833, and is in substance the answer in Babcock v. Beman, 11 N. Y. 200. The de fendant should aver and prove the authority under which he acted, and show that the plaintiffs have a right of action against some other person. White v. Skinner, 13 Johns. 307; 7 Am. Dec. 381. 101 Kendall v. Badger, 1 McAll. 523.