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obliged to receive the same, and concerning the price he ought to pay the plaintiff therefor; and the plaintiff and the said E, at &c., on the said &c. day of &c. last past, in order to make an end and final determination of the said disputes, submitted themselves to the arbitrament and award of A and B, both of said &c., merchants, mutually chosen by the plaintiff and the said E, to arbitrate, order and award concerning the premises, and the said E thereafterwards, on the same day, in consideration of the premises, and in consideration that the plaintiff did then and there promise the said E, that he, the plaintiff, would faithfully abide by and perform, whatever the said arbitrators should finally order and award in the premises, on the plaintiff's part to be performed and abided by, undertook and promised the plaintiff, that he, the said E, would well and faithfully abide by and perform, all and singular those things which the said arbitrators should order and award, on his, the said E's, part to be abided by and performed concerning the premises. And the plaintiff, in fact saith, that the said arbitrators did undertake the trouble of arbitrating and awarding, between him and the said E concerning the premises, and having fully heard the plaintiff and the said E respecting the premises, thereafterwards on the said &c. day of &c., did, by their arbitration under their hands arbitrate, order and award, that the said E ought to receive the plaintiff's flour as charged in said account, with the addition, as agreed on between themselves, which the plaintiff avers to have been the addition of thirty cents upon each barrel, advance upon the costs and charges thereof, as mentioned in said account, amounting in the whole, to wit, for the costs and charges and addition in advance, as the plaintiff avers, to the sum of $1588,19; of all which the said E thereafterwards, on the same day had notice. And the plaintiff avers that he thereafterwards on the same day, delivered, and the said E did accordingly receive the said flour last mentioned; yet the said E hath not paid the plaintiff the said sum of $1588,19, according to the same intent and effect of said award, but only part thereof, viz. $1000, although he was thereafterwards, at &c., on &c., thereto requested; the residue whereof, viz. &c. the said E, though then and there, and although often afterwards requested, hath not paid, and he still neglects to pay the same according to the form, intent, and effect of said award. Pierce v. Treadwell, Essex S. J. C. Nov. Term, 1802. S. PUTNAM.

NOTE. The declaration should set forth an award, good in all respects; if it appears to be on one part only, it will be bad; and it seems that if it awards any collateral thing, as a release, it will not be good without writing. See 1 Lev. 113; I Sid. 160.

5. Promissory Notes.

On note payable on demand.

For that the said D, at &c., on &c., by his promissory note of that date, by him subscribed, for value received, promised the plaintiff to pay him, or his order on demand, the sum of &c. dollars, with lawful interest therefor until paid; yet, though requested, the said D hath never paid the said sum, but refuses so to do.

NOTE. The words in italics will be inserted or omitted, according to circumstances. Any mistake or misdescription here, will be a fatal vari

ance.

Where the note is given by a firm, say, "for that the said D and E, on &c., at &c., by their promissory note of that date subscribed by the name and style of - &c.

Under Mass. Stat. 1839, Sect. 1, the maker of a note, payable on demand, in an action against him by an indorsee, may avail himself of any legal defence, that would be sufficient in an action on the same note by the payee.

On a note payable after date.

For that the said D, at &c., on &c., by his promissory note of that date, by him subscribed, for value received, promised the plaintiff to pay him or his order, the sum of &c. dollars, in six months after date, with lawful interest therefor after said six months, until paid; and the plaintiff avers that the said six months have elapsed; yet though requested, &c.

NOTE. The words in italics must correspond with the note.

In declaring on a note, it should be set out as it really is; an omission of any of the conditions or contingencies, upon which a note is payable, will be a variance. See Imp. Plead. 429.

On a note payable to bearer; by the holder.

For that the said D, at &c., on &c., by his promissory note of that date, by him subscribed, for value received, promised one E. F. to pay him, or bearer, the sum of &c. dollars on demand; and the said E. F. thereafterwards on the same day, transferred and delivered the said note, then and still unpaid, to the plaintiff who thereby became the lawful bearer thereof; by reason whereof the said D became liable, and in consideration thereof, then and there

promised the plaintiff, to pay him the contents of the said note according to the tenor thereof; yet, &c.

NOTE. In a similar case it was decided, that it was sufficient to aver, that the plaintiff was the holder of the bill for a valuable consideration. 5 Mass. R. 97. But it seems the value of the consideration could never be inquired into, if the original promisee gave a valuable consideration for it; for such promisee might make a present of it to the holder.

On an indorsed note, by indorsee against maker.

For that the said E, at &c., on &c., by his promissory note of that date, by him subscribed, for value received, promised one E. F. to pay him or his order the sum of &c. dollars, six months after date, with lawful interest therefor, until paid; and the said E. F. thereafterwards on the same day, indorsed and delivered the said note to the plaintiff, by reason and in consideration whereof the said E became liable, and promised the plaintiff to pay him the contents of the said note according to the tenor thereof. And the plaintiff avers, that the said six months have long since elapsed; yet, &c.

NOTE. If there are several indorsements, say, and the said E. F. thereafterwards, on the same day, indorsed and delivered the said note to one G. H. who thereafterwards, on the same day, indorsed and delivered the same to the plaintiff, &c.

If the first indorsement be special to any one by name, in an action by an indorsee after him, his indorsement must be stated.

An indorsement on a blank note or check, in the form of a bill of exchange or promissory note, will bind the indorser, for any sum, which the person to whom he entrusts it so indorsed, shall insert in it. Doug. 514. The holder may declare as indorsee. See 3 Mass. R. 275; 12 Johns. R. 159; 4 Mass. R. 45; 5 Cranch, 142; 16 East, 21.

On an indorsed note; Indorsee v. Indorser.

one

For that one G, on &c., at &c., by his promissory note of that date by him subscribed, for value received, promised the said E to pay him or his order, the sum of $ year after date, and the said E thereafterwards, on the same day, indorsed and delivered the said note to the plaintiff; and the plaintiff avers, that afterwards, when the said note became payable, viz. on &c., at &c., the said note was duly presented to the said G, and payment of the said sum according to the tenor of the said note, was then and there duly required of the said G, who then and there refused to pay the same, of all which the said E thereafterwards, viz. on the same day, had notice, by reason whereof the said E became liable, and in consideration thereof, then and there promised the plaintiff to pay him the contents of the said

note, when thereunto requested; yet, though often requested, &c.

NOTE. If the note &c. is payable in foreign currency, the value of it should be averred in the declaration.

If it is made payable at a particular place, it must be so stated in the declaration. The omission will be a fatal variance. 3 Camp. 247. So of a bill of exchange. 3 Camp. 463.

If a note be payable May 1, and the indorsement appoints it to be April 1, as to the indorser this is a promissory note, payable April 1, but not as against the drawer. See 1 Str. 479.

A count for money had and received, may be maintained by the indorsee against the indorser of a promissory note, even in the cases where no money has been actually received for indorsing the note, and against the maker by the indorsee for the same reasons.

See Cole v. Cushing, 8 Pick. 48; Ellsworth v. Brewer, 11 Pick, 320; Payson v. Whitcomb, 15 Pick. 216.

The following averments may be used according to cir

cumstances.

Averment of want of effects, to excuse notice of non-payment in an action against an indorser.

-And the plaintiff avers, that, at the time of making the said promissory note as aforesaid, and from thence until and at the time, when the said note was so presented for payment as aforesaid, the said F (the maker) had not in his hands any effects of the said E, nor had the said F received any consideration from the said E, for the making or paying the said note: but the said F made the said note for the accommodation, and at the request of the said E, and the said E hath not sustained any damage by reason of his not having had any notice of the non-payment by the said F, of the sum of money specified in the said note; &c.

Averment that maker could not be found when the note became due; in an action against an indorser.

- And the plaintiff avers, that when the said note became due, viz. on &c., diligent search and inquiry was made after the said F, at &c. where the note was payable, in order that the said note might be presented to the said F for payment, but that the said F on strict search and inquiry, could not be found, nor did the said F then, or at any time before or since, pay the said note, but hath wholly neglected so to do; of all which premises the said D thereafterwards, viz. on &c. had notice, and thereby became liable, &c.

Second Indorsee v. Maker.

For that the said E, on &c., at &c., by his promissory

note of that date, by him subscribed, for value received, promised one F, to pay him or his order, the sum of &c. within three months after the date of said note, with lawful interest therefor until paid; and the said F thereafterwards, on the same day, by his indorsement of the said note, in writing under his hand, appointed the contents of the said note, then unpaid, to be paid to one G, or to his order, according to the tenor of said note; and the said G, thereaf terwards on the same day, by his indorsement of the said note in writing under his hand, appointed the contents of the said note, then unpaid, to be paid to the plaintiff; of all which the said E, then and there had notice, and thereby became liable, and, in consideration thereof, then and there promised the plaintiff to pay him the contents of the said note, according to the tenor thereof; and the plaintiff avers that the said three months have long since elapsed; yet &c. Indorsee against indorser; on note drawn by two persons whose christian names are not known.

For that certain persons, using the name and firm of A and B, on &c., at &c., by their promissory note, in writing under their hands, of that date, for value received, promised the said D to pay him or his order, the sum of &c., two months after the date thereof; and the said D thereafterwards, on the same day, by his indorsement on the said note, in writing under his hand, appointed the contents of the said note, then unpaid, to be paid to the plaintiff, according to the tenor thereof; and the plaintiff thereafterwards, at the expiration of the said two months, viz., on &c., at &c., presented the said note, with the indorsement thereon, to the said persons, so using the rame and firm of A and B, and then and there requested them to pay the said sum of money, therein specified, to the plaintiff, according to the tenor and effect of the said note and of the said indorsement, who then and there refused so to do; of all which the said D, then and there had notice, and thereby became liable, and in consideration thereof, then and there promised the plaintiff to pay him the said note, according to the tenor and effect thereof, and of the said indorsement so made thereon as aforesaid; yet, though the said two months have long since elapsed, and though often requested, &c.

NOTE. Under Mass. Stat. of 1839, § 2, where a note is payable on demand, a demand within or at the expiration of sixty days from date (excluding grace,) if the indorser has due notice, will be made within a reasonable time to charge him.

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