23 Manning v. Haas, 5 Colo. 37.

24 Hill v. Shalter, 73 Ind. 459.

25 Lindsley v. Simonds, 2 Abb. Pr. N. S. 69. And see Chautauqua County Bank v. Risley, 19 N. Y. 369; Mechanics' Bank Assoc. v. Spring Valley etc. Co. 25 Barb. 419.

26 Cowley v. Costello, 15 Hun, 303. And see Smith v. Smith, 5 Jones & S. 203.

27 Carper v. Gaar, 70 Ind. 212. The copy will be presumed to be right until the contrary is shown: Stafford v. Davidson, 47 Ind. 319; Crandall v. First Nat. Bank, 61 Ind. 349.

? 124. Bills and notes - Answer. — In an action upon a promissory note, a general answer of no consideration is held to be good.1 But a general answer of failure of consideration is bad, and such failure must be specifically pleaded.' And under the Colorado practice, in an action on a promissory note, it is proper to plead the want of consideration by specific averment, and in such case an issue is formed without a reply.3 An answer averring that, for a good consideration, an agreement for renewal and extension of the note sued upon had been made, is good, though it does not allege it to have been made in writing. An answer averring that the note sued on was obtained by fraud, misrepresentation, and covin, without specifically setting forth the facts constituting the fraud, presents an issuable fact, and a reply must be made to it. Evidence showing that a note has been altered after execution is admissible under an answer denying that the defendant made the note in the complaint mentioned." And where the defendant alleged as his defense that the note was fraudulently altered in a material point after delivery, without the knowledge or consent of the maker, it was held that the material alteration, though innocently made, was sufficient to avoid the note, and that the allegation of fraud was neither necessary nor material. But where the defence is, that the note had been fraudulently altered after its execution, the better prac

tice would be to set up such defense in the answer in order to avoid surprise at the trial. An admission in the answer of the making, indorsement, and transfer of a promissory note does not preclude the defendant from showing that there was no consideration." An answer alleging that the note was by mistake given for a greater sum than was due, admits proof under the pleadings that it was given on a settlement of accounts, and by mistake was for a larger amount than the sum actually due.10 An answer setting up that the plaintiff had accepted the defendant's note for the amount due, whereby the time for the payment of the debt was extended, and that such note was not yet due, but not alleging that the note so accepted was a negotiable note, was held to be frivolous.11 So an answer by a surety on a promissory note, that the principal had delivered it in violation of an agreement made between them, that the latter would procure an additional surety, but not alleging notice of such agreement by the payee, is insufficient. So an answer by one partner that his copartner, without his consent, executed the note sued on in the firm name, of which the plaintiff at the time had notice, is bad on demurrer; 13 otherwise, if it be averred that the defendant, at the time of the execution of the note, did not consent, and objected thereto, of which the plaintiff then had notice.1 Under Indiana practice, in an action on a promissory note, the answer of a surety, to the effect that he had notified the creditor to sue forthwith on the note, which had not been done, is insufficient on demurrer for the want of facts, if it does not allege that such notice was in writing.15 So to an action on a joint promissory note, an answer by way of set-off, by one of two or more defendants, must allege that he is principal, and his co-defendants are his sureties, in the plaintiff's cause of action, or it will be

BOONE PLEAD.-19.

insufficient on demurrer.16 Where a copy of the note is given with or made part of the petition, an answer merely stating that when the action was brought the note was not in existence cannot be regarded as a denial of the allegations of the petition, nor as containing any defense to the action.17 So an allegation that A "made, executed, and delivered" a promissory note is not put in issue by an answer denying that he delivered the note.18 So want of knowledge or information sufficient to form a belief is not a sufficient denial by the defendant of the alleged presentation, demand, refusal of payment, and protest of the bill sued on, when the protest of the notary showing these facts is filed with the petition.19 An answer alleging that the note sued on was given for interest on other notes, which were drawing interest at the highest rate allowed by law, does not show usury.20 An answer concluding, "and defendant says that he did not execute said note in manner and form as set out in said plaintiff's complaint herein, and that the same is not his note," is sufficient to constitute a good general plea of non est factum, although the facts previously stated in the answer are insufficient to constitute a good special non est factum, or an answer in confession and avoidance.21 Under a statute giving a right of action on a note by an assignee against any assignor, due diligence having been used against the maker, that such diligence has been used must be averred, or a sufficient excuse for the want thereof must be given; 22 the insolvency or coverture of the maker, or a request of the assignor not to sue, constitutes a sufficient excuse." 23

1 Swope v. Fair, 18 Ind. 300; Frybarger v. Cockefair, 17 Ind. 404; Evans v. Stone, 80 Ky. 78; Catlin v. Horne, 34 Ark. 169. And see Evans v. Williams, 60 Barb. 346; Pavey v. Pavey, 30 Ohio St. 600.

2 Swope v. Fair, 18 Ind. 300.

3 Alden v. Carpenter, 7 Colo. 87.

4 New York Trust etc. Co. v. Helmer, 77 N. Y. 64; 12 Hun, 35.

5 Evans v. Stone, 80 Ky. 78. A plea that the note sued on was obtained by false representations, without stating what the representations were, was held bad: Catlin v. Horne, 34 Ark. 169. And see Gushee v. Leavitt, 5 Cal. 160.

6 Boomer v. Koon, 6 Hun, 645. See Andrews v. Bond, 16 Barb. 633; Beaty v. Swarthout, 32 Barb. 293.

7 Eckert v. Pickel, 59 Iowa, 545. And see Morrison v. Huggins, 53 Iowa, 76; Murray v. Graham, 29 Iowa, 520; Whitesides v. Northern Bank, 10 Bush, 501; Woolfolk v. Bank of America, 10 Bush, 504. 8 Boomer v. Koon, 6 Hun, 645. See Rogers v. Vosburgh, 87 N. Y. 228.

9 Powers v. French, 1 Hun, 582.

10 Seeley v. Engell, 13 N. Y. 542.

11 Webster v. Bainbridge, 13 Hun, 180.

12 Whitcomb v. Miller, 90 Ind. 384.

13 Moffitt v. Roche, 92 Ind. 96.

14 Moffitt v. Roche, 92 Ind. 96.

15 Mendel v. Cairnes, 84 Ind. 141. 16 Lynn v. Crim, 96 Ind. 89. 345; Welborn v. Coon, 57 Ind. 270.

And see Gregory v. Gregory, 89 Ind.

17 Sargent v. Railroad Co. 32 Ohio St. 449. See Castro v. Wetmore, 16 Cal. 379.

18 Cogswell v. Hayden, 5 Oreg. 22.

19 Gridler v. Farmers' etc. Bank, 12 Bush, 333.

20 Moffitt v. Roche, 92 Ind. 96.

21 Hine v. Shiveley, 84 Ind. 136.

22 Huston v. Centreville Bank, 85 Ind. 21. And see Binford v. Willson, 65 Ind. 70; Roberts v. Masters, 40 Ind. 461.

23 Huston v. Centreville Bank, 85 Ind. 21. An answer which denies that the note sued on remains unpaid, and that anything remains due thereon, raises an issue which devolves upon the plaintiff the burden of proving non-payment, by production of the note or otherwise: Farmers' etc. Bank v. Christensen, 51 Cal. 571.

125. Bill of particulars. -By a provision in the Codes of the different States, the court may direct a bill of the particulars of the claim of either party to be delivered to the adverse party. This provision is declaratory of the practice which formerly existed, and the power conferred should be prudently employed, with the view to enable parties to prepare their pleadings and evidence for the trial of the real issues involved, but not to impose unnecessary labor on any party. The entire scope and nature of a bill of partic

ulars is to furnish information to an opponent and to the court of the specific proposition for which the party contends.3 It is appropriate to all descriptions of actions, where the circumstances are such that justice demands, that a party should be apprised of the matters for which he is to be put on trial, with greater particularity than is required by the rules of pleading.* Its office is to amplify a pleading, and indicate specifically the claim set up; but it is neither given nor required for the purpose of disclosing to an adverse party the case relied upon, nor the proof to substantiate it.5 The court may exercise the power to order a bill of particulars as well in behalf of the plaintiff as of the defendant. Thus, either party to an action of ejectment may be required to furnish a bill of particulars of his claim in respect to the land. But in almost every kind of case in which the defendant can satisfy the court that it is necessary to a fair trial that he should be apprised in advance of the particulars of the charge which he is expected to meet, the court has authority to compel the plaintiff to specify these particulars so far as in his power. But where the defendant is as well acquainted with the nature and particulars of the claim, and has all the knowledge necessary to enable him to plead, a bill of particulars will not be ordered. If a party fully knows what his adversary means to rely on for his cause of action or defense, he is not entitled to a bill of particulars.10

1 See N. Y. Code Civ. Proc. 531; Cal. Code Civ. Proc. 454.

2 Tilton v. Beecher, 59 N. Y. 176; Butler v. Mann, 9 Abb. N C. 49; Stiebelung v. Lockhaus, 21 Hun, 457; Wigand v. Dejonge, 18 Hun, 405; Crane v. Crane, 82 Ind. 459.

3 Stevens . Webb, 4 Civ. Proc. R. 64; 17 N. Y. Week. Dig. 213; Walker v. Fuller, 29 Ark. 448.

4 Gross v. Clark, 1 Civ. Proc. R. 464; 87 N. Y. 272; Dwight Germania Life Ins. Co. 22 Hun, 167; 84 N. Y. 293.

5 Higenbotham v. Green, 25 Hun. 214; Butler ". Mann, 9 Abb. N. C. 49; Gee v. Chase Manuf. Co. 12 Hun, 630; Drake v. Thayer, 5 Robt.