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said order to the plaintiff, and, in consideration thereof, he, on the .... day of , de-



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540 FORMS.

live red to said E. F. merchandise of the value of one hundred dollars, the particulars of
which are stated in the copy of the plaintiff's account thereof, which is dated the last day
mentioned and filed herewith ; and that the defendant has not paid any part of said money

\or — and that, though, on the .... day of , the plaintiff {or — the plaintiff's agent,

L. M.) requested the defendant to pay said money (£), he has not paid any part thereof
nor any interest thereon.]

Wherefore the plaintiff asks for judgment against the defendant for one hundred dol-
lars and interest thereon [from the date of the request to pay, if there was such request]
and costs [and any other relief the plaintiff may appear entitled to].

(Verification as in Form I.) G. H., Attorney.

(a) Under the old practice, the plaintiff could have maintained an action of assumpsit
against C. D. for the $100.00, alleging that the goods had been sold and delivered to him
at that price, without stating their value or referring to the order (sec Snodgrass v. Broad-
welly 2 Litt., 353) ; but it seems clear that, under the Code, the petition should state the
facts as to both of those matters.

(6) Averment of notice to C. D. of the delivery of the goods to E. F. seems unneces-
sary (see note V, ante, page 72) ; and averment of a request to pay is unnecessary, except
to entitle the plaintiff to interest before the commencement of his action. See note (a) to
Form 21.

28. Petition of indorsee against the payor, payee, and second indorser
of a negotiable, discounted note (a).

The Bank of Kentucky, Plaintiff, \ Shelby Circuit Court.

against v Petition.

A. B., C. D., andE. F., Defendants, j

The plaintiff, the Bank of Kentucky, states that it and the First National Bank of
Louisville, Kentucky, are corporations (6), with authority to carry on the business of
banking [and having their places of business in Louisville, Kentucky], the former having
been organized under an act of the General Assembly of the Commonwealth of Ken-
tucky (c) t and the latter under a general act of the Congress of the United States (d\ ; that

the defendant, A. B., by a writing dated the .... day of , which he signed and

delivered to the defendant, C. D., promised to pay to said C. D. (e), ...... days after

said date, dollars, negotiable and payable at said National Bank [or — promised to

pay to the order of said C. D. (/), days after said date dollars at said

National Bank] ; that said C. D. indorsed and delivered said note to the defendant, E. F.,
who, afterward, and before its maturity, indorsed and delivered it to the plaintiff, which,
before its maturity, discounted (g) it at the request of the said E. F. [or — of the said

] ; that, on the .... day of , I. J., a notary public in and for Jefferson

county, at the plaintiff's request, took said note to said National Bank, during its usual
banking hours, and, neither of the defendants being there, presented it to the teller of said
bank, and requested payment thereof, which was refused; that, on the last named day,
the said notary, at the cost of dollars to the plaintiff, protested said note for non-
payment, and on that day [or — &c, state the giving of notices of dishonor to C. D. and E. /*.,
as in Form 23] [as is shown by a certified copy of said protest, under said I. J.'s notarial
seal, which is filed herewith {A)]; and the plaintiff further says that no payment has been
made on said note by either of the defendants.

Wherefore the plaintiff asks for judgment against the defendants for dollars and

interest thereon from [the date of maturity], and for dollars, the notarial costs

aforesaid, and for its costs of suit [and any other relief it may appear entitled to].

(No verification necessary.) L. M., Attorney.

(a) G. S., ch. 22, §21, places negotiable, discounted notes on the same footing as for-
eign bills of exchange, as to petitions on which see, ante, Form 23 and notes thereto.
(6) See Campbelfs ex'r v. Farmer's Bank of Ky., 10 Bush, 152.



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PETITIONS ON IMPLIED CONTRACTS. 541

(c) Private acts of our legislature are judicially noticed by our courts without being
specially pleaded. G. S., ch. 37, g I ; ch. 67, §5 ; 17 B. Af. t 47; and see note (2), ante,
page 151.

(d) Judicial notice is taken of general acts of Congress (83 Ay., 611) ; and the parties
«an not put in issue the existence of the bank by averring want of knowledge or informa-
tion, &c. 12 Bush t 291.

(*) The discounting by a bank of a negotiable note payable at a bank does not place it
■on the footing of a bill of exchange as to the payor (1 Dana, 335-36) ; and to support an
action against him, the plaintiff must allege a promiie to pay. Huffaker, 6V., v. National
Bank of MonHcello, 12 Bush, 287.

(/) Making a note "payable to order" makes it negotiable as effectually as if the
word "negotiable" had been used. 7 Bush, 519.

(g) The assignment to a bank of a negotiable note is prima facie evidence that it had
been discounted. I Dana, 334.

[A) As to this see note {d), ante, page 537.

29. Petition of assignees against assignors of bonds and notes not dis-
counted (a).

a. Petition of assignee against assignor for money-consideration, averring payors non-Ha'
bility{b).

{Caption as in Form 1.)

The plaintiff, A. B., says that, on the .... day of , in consideration of

dollars paid by him to the defendant, C. D. y he indorsed and delivered to the plaintiff a

writing, dated the .... day of , and signed by one E. F., and by which said E. F.

promised [or — a writing purporting to have been signed by one E. F., and that he thereby

promised] to pay to said C. D. [or — to the order of said C. D.] dollars

months after the last named date; that, on the .... day of , the said E. F. having

refused to pay said money to the plaintiff, he brought an action thereon against said E. F.

in the circuit court, alleging that said E. F. had signed and delivered "it to said

C D., and his assignment and delivery of it to the plaintiff, and asking for a judgment
for the amount of it against said E. F.; that, in said action, said E. F. [on the .... day

of ], pleaded, as a defence, that he [or — she] never signed said writing, or delivered

it to said C. D.; [or — was of unsound mind, or — under twenty-one years of age, or — a
married woman when he {or — she) signed said writing and delivered it to said C. D.,
or — that the said E. F. paid said note to the said C. D. before he assigned it to the plain-
tiff, or — that said C. D., when he assigned said note to the plaintiff, was indebted to said
E. F. in the sum of dollars on his promissory note to said E. F., {or — for merchan-
dise sold and delivered to said C. D. by said E. F., or — according to the facts showing the
indebtedness), which debt had matured when said assignment was made (c) and remained
wholly unpaid, and praying that said demand of said E. F. might be set off against said

demand of the plaintiff;] [that, on the day of , the plaintiff notified said

C. D. of the pleading of said defence in said action, and requested him to attend to the
prosecution thereof (d)] ; that the plaintiff employed G. H., an attorney at law, to bring

and prosecute said action and paid [or — agreed to pay] him dollars therefor, which

was a reasonable fee {e) [or — that the plaintiff employed G. H., an attorney at law, to

bring said action and paid (or — agreed to pay) him dollars therefor, which was a

reasonable fee, and that, the said C. D. having refused to attend to the prosecution of
said action after he was notified of the filing of said defence, the plaintiff employed said

G. H. to prosecute it and paid {or — agreed to pay) him an additional fee of dollars

therefor, which was a reasonable fee] ; that, on the .... day of by a judgment duly

rendered (/) by said court, as appears of record therein, said defence was sustained and

said action dismissed at the plaintiff's costs, which amounted to dollars ; [that said

action against E. F. was prosecuted in good faith and diligently, and that said E. F.'s
•said defence therein was true(^) ;] tfcat said writing, with said C. D.'s indorsement thereon



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54 2 FORMS,

is filed herewith [or — is on file in the said action of the plaintiff against £. F.] ; and

that the defendant, C. D., has not paid any part of the aforesaid dollars nor any

interest thereon, nor any part of said attorney's fee [or — fees] nor of said costs.

Wherefore the plaintiff asks for judgment against the defendant for dollars and

interest thereon from [the date of the assignment of the note], and for dollars, the

aggregate amount of said attorney's fees and said costs, and interest thereon, and for the
costs of this action [and any other relief the plaintiff may appear entitled to].

L. M., Attorney.

(Verification as in Form I, unless the assigned note be filed with the petition.)

(a) Excepting bonds that have the effect of judgments (5 J.J. Af., 75), the assignment
of an undiscounted note or bond, with the assignor's indorsement (Hardin, 27 ; Markly v.
Withers, 4 Afon., 14), unless the assignment be made without recourse (Tripletts. Holley, 4
Lilt., 130; Coffmans. Allen, Litt. S. C, 200), as may be proved by parol evidence (Butler
v. Suddelh, 6 Afon., 541), creates, between the assignor and his immediate, but not a remote,
assignee (Hardin, 218; 3 Afar., 163; 3 /. /. Af., 547-48; 4 Met., 300), an implied war-
ranty that the instrument is genuine, and that the payor or obligor had capacity to make
the contract, and that he owes the money for payment of which it stipulates, and that, if
not, the assignee will refund the money paid For the assignment (G. S., ch. 22, {7; $Bibb,
2I 5? lJ.J*Af.,b\\\ $ Bush, 55, 660; 12 Id., 158); and, also, an implied contract that,
though the note or bond be obligatory and the money owing, the assignor will refund the
money paid for the assignment, if the assignee can not obtain satisfaction from the payor
or obligor by the use of reasonable diligence (G. S., ch. 22, §7; and see note 2, ante, page
81): the assignment of a bond to convey land does not, however, create a warranty of
title to the land ; but only makes the assignor liable for the money paid for the assign-
ment, if the assignee can not, by using reasonable diligence, recover the land or the pur-
chase-money paid to the obligor by the obligee. 3 Mon., 75, 291 ; 3/. J. Af., 636; 7 Id.,

343.

It was held, however, and as it seems to me correctly, that the assignment, 'though
without fraud, of a bond to which the assignor had no title gave to the assignee an im-
mediate right of action against the assignor, without a previous suit against the obligor.
Emmerson v. Claywell, 14 B. Af., 18 : but see Winstell v. Hehl, 6 Bush, 62, 63.

And the holder of a note or bond with a blank indorsement on it, though made when
it was assigned to another, has a right, even during the progress of a trial, to fill up the
indorsement so as to make the instrument payable to himself. 5 Lift., 333; 9 Dana, 415;
5 B.M., 400; 16 Id., 575.

But the date of the indorsement is not conclusive as to the time when the assignment
was made. 3 Dana, 597.

And, though an assignee can not maintain an action at law against a remote assignor,
he can do so in equity, if his immediate assignor has become a non-resident of the State
(3 B. Af., 121) or been discharged in bankruptcy or become insolvent. 8 Id., 407: as to
the necessary parties and the criterion of recovery in such action, see 3 B. Af., 121, and 8
Id., 410.

As to actions by intermediate assignors, see 4 /. /. Af., 310; Latham v. Western, 8
B. Af., 297.

(b) The assignee can maintain an action against his assignor for a breach of the war-
ranty, without having sued the payor or the alleged paydr, if the assignment be fraudu-
lent (Litt. S. C, 201-02; 12 Bush, 158) ; or if an action against the payor be prevented
or made useless by an uncontemplated event, such as the payor's discharge in bankruptcy
(8 B. Af., 210) or his removal from the State after the assignment (4 J.J. Af., 307) ; and,
according to a dictum in Maupin v. Compton, 3 Bibb, 215, the assignee, in an action against
his assignor, can prove payment of the debt to him without having sued the payor ; but,
in Hunt v. Armstrongs adm'r, 5 B. Af., 399, the court questioned the correctness of that
dictum and held that, at any rate, an assignee can not maintain an action against his assignor,
on the ground that the payor has a set-off against the assignor, unless a plea of set-off his
been sustained by a judgment in an action against the payor, for the reason, said the court,
that the payor " might or might not" plead the setoff; and in Wynn v. Poynttr, 3 Bush,
54, it was held likewise as to non est factum; but in Hughes' adnCr v. Brown, &*c, 3 Bush,
660, it was held that an assignor can maintain an action against his assignor and the payor
and prove that the payor was a married woman, without a previous action against her ;
and an assignee having sued the payors, who were husband and wife, on a note which
showed on its face that it was not given for necessaries, and having obtained a judgment
against the husband, it was held that he could maintain an action against the assignor,
though the court had failed to give judgment against the wife (Green, &V., r.Page, &*c,



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PETITIONS ON IMPLIED CONTRACTS. 543

80 Ky., 368) ; and it seems clear that the assignee could have done so, even if the court
had erred in failing to give judgment against the wife. See 3 Mon., 63.
(e) See 2 Met., 295.

(d) As to the giving of this notice and its effect, see note (b) to Form 6.

(e) As to the plaintiff's right to recover costs, including a reasonable attorney's fee, see
12 Bush, 158, and note, ante, pages 77, 78.

(/) See Code, \ 122.

(g) If the petition show that C. D. had reasonable notice of E. F.'s defence, it is not
necessary for the plaintiff to allege that he prosecuted the action in good faith and dili-
gently, as the burden of doing so would be on C. D. (see cases cited in note (b) to Form
6); and if, as seems probable (see last mentioned note), the giving of such notice would
make the record of the action against E. F. conclusive evidence against C. D. of the validity
of this defence, it is not necessary for the plaintiff to allege that said defence was true.
See 3d paragraph of note 6, ante, page 151.

b. Petition of assignee against assignor for money-consideration, averring payor's insolvency (a).

(Caption as in Form I.)

The plaintiff, A. B., says that, on the day of , the defendant, C. D., in

consideration of dollars paid to him by the plaintiff, indorsed and delivered to the

plaintiff a note dated the .... day of , which one E. F. had signed and delivered

to the said C. D., and by which said E. F. promised to pay to said C. D. [or — to the order

of said C. D.] dollars, months after the last named date, which note, with

said indorsement thereon, is filed herewith [or — is on file in the action hereinafter men-
tioned] ; that, on the .... day of , the said E. F. having failed to pay said note,

the plaintiff brought an action thereon against him in the circuit court for county,

in which county he resided ; [that, on the .... day of ....... an order was duly made (b)

in sai* action by the clerk of said court for the arrest of said E. F., under which he was
arrested and held to bail ;] that, on the .... day of , a judgment was duly ren-
dered (e) by said court against said E. F. for dollars, being the amount of said

note and interest thereon, and for costs which amounted to .' dollars ; that on the

.... day of , there was placed in the hands of the sheriff of said county a writ of

fieri facias, that had been issued on said judgment, which was returnable on the .... day

of , and which commanded him to make the amount of said judgment of the estate

of said E. F. [and also a writ of capias ad satisfaciendum that had been issued on said

judgment, which was returnable on the .... day of , and which commanded said

sheriff to take the body of said E. F. to satisfy said judgment;] that, on the .... day of

said fieri facias was returned by said sheriff with an indorsement of "no property

found ; " [and, on the .... day of , the said sheriff, under said capias, arrested said

E. F., who had been surrendered by his bail, and, by an order duly made (c) by the pre-
siding judge of the county court (or — two justices of the peace) of said county, the said
E. F. was discharged after having delivered a schedule of his property, which was sold

by said sheriff for a sum amounting to dollars after deducting his commissions,

and which sum he paid to the plaintiff;] that nothing has been paid to the plaintiff, either
by the defendant or the said E. F., and that said E. F. is insolvent (d).

Wherefore the plaintiff asks for judgment against the defendant for dollars and

interest thereon from [the date of the assignment] and for dollars the costs afore-
said^), [subject to a credit for dollars received from the sheriff as aforesaid] and

the costs of this action, [and any other relief the plaintiff may appear entitled to].

G. H., Attorney.

(Verification as in Form 1, unless the note be filed with the petition).

(a) The assignee can maintain an action against his assignor without having sued the
payor, if, after the assignment and before the expiration of a reasonable time for commencing
an action against him, he become a non-resident of this State, leaving no available property
here (6 Afon., 651-52; 4/ J. M., 307; 7 Bush, 74), or die insolvent (2 Mar., 256; 6
M° n -t 653), or be discharged in bankruptcy (8 B. M., 210) ; or if the fact that he is a non-
35



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544 FORMS.

resident be unknown to the assignee at the time of the assignment (I Bibb, 545) ; or, per-
haps, according to Tucker, <5rV., v. Fogle, 7 Busk, 290, if his estate be subjected under the
statute forbidding preferences of creditors: but, as to this, see Francis v. Gant, <5rV., 80
Ky., 190. But —

1. In general, the assignee, in order to hold his assignor liable, must, with reasonable
diligence, bring an action and obtain a judgment against the payor, in the county of his
residence, though he may have removed thereto after the assignment (8 B. Af., 132), and
deliver to the sheriff of that county a writ of fieri facias (2 Bibb, 35; 1 B, Af., 251; 6
Id., 418), and, also, a writ of capias ad satisfaciendum if the plaintiff be entitled thereto
(see Code, \ 168; G. S., ch. 38, art. 3; I Bibb, 546-47; 2 Id., 290; 2 Mar., 523); but he
need not appeal from an erroneous judgment in favor of the payor. 3 Afon., 63.

What constitutes reasonable diligence is for the court, and not a jury, to decide (1
Bibb, 546; l Dana, 183; 80 Ky., 196) ; and an averment that the plaintiff used due dili-
gence is insufficient and unnecessary ; he must state facts showing that he used due dili-
gence (see note 2, ante, page 147, and 80 Ky., 192) ; nor is there any general rule as to
what constitutes due diligence, except that the assignee must use such diligence as a man
of ordinary prudence would be expected to use if the note were payable to himself (3
Bibb, 227; 6 Mon,, 652; 9 Dana, 46; 3 B. Af., 122, 587; 7 Id., 1 15; 8 Id., 229; 9 Id.,
55) ; — greater diligence being necessary when the payor is known to be " in laboring cir-
cumstances " than when he is known to be insolvent or reputed to be solvent. 3 B. Af.,
587; 9 Id., 55.

A prima facie cause of action is stated by a petition which shows that the assignee
' obtained judgment against the payor, though by confession (9 Datta, 58), in the county of
his residence, at the first term of court after the note matured, or after it was assigned if
it was then due ; and that a writ of fieri facias was issued from, the circuit court, though
not from a quarterly court or justice's court (1 Met., 642), as soon as due, and immediately
delivered to the sheriff of that county, and by him returned, on or before the return-day
(7 B. M., 192), "no property found ;" and that a writ of capias ad satisfaciendum, if the
plaintiff was entitled thereto, was, with equal diligence, delivered to said sheriff, and that
the defendant, having been arrested thereon, was discharged on taking the oath of insol-
vency ; —unless, as will be presently shown, it appear that the plaintiff had some* other
remedy which he had failed to exhaust; — the return of "no property found " being, at
least, prima facie evidence of the defendant's insolvency, and being, it seems, conclusive
evidence thereof, unless it be proved that the plaintiff had knowledge, actual or presump-
tive, of other property of the defendant which might have been subjected (2 Bibb, 35 ; 4
J.J. M., 304; 3 B. M., 122; 6 Id., 418; 7 Id., 116) ; and the oath of insolvency being
entitled to the same effect as, and, indeed, dispensing with the necessity of, the return of
no property found. 5 Mon., 275-6.

But such extreme diligence is not usually, if ever, necessary.

(1) As to diligence in commencing suit against the payor.

Assignees failing to get judgment at the first term after they had a right to sue have,
in the absence of explanatory circumstances, been held to be inexcusably negligent in
failing to sue during the following periods preceding such term, viz., four months (1 Afar.,
230), three months (4 Mon. 15 ; 3 Dana, 596), thirty-three days (8 B. M., 229), sixteen
days (2/ J. Af., 217); and delay of twenty-four days in suing before a justice of the
peace was held to be inexcusable (3 Dana, 448) ; and the payor having been summoned in
time for judgment at the first term, a continuance of the case "by agreement" was held
to have released the assignor from liability (7 B. M., 191-92) : whilst, in the absence of
explanatory circumstances, failure to sue for twenty-two days, in one case (9 Dana, 45),
and for "more than forty days," in another (8 B. Af., 299), was held to be excusable;
and, the payor being temporarily absent from the State, failure to sue for seventy-five days,
in one case (2 Lift., 132), and for eighty days, in another (6 B. M., 418), was held to be
excusable ; and delay at the request of the assignor is excusable. 3 Dana, 448.

(2) As to diligence in executing judgment against the payor.

According to AfcAfurray v. Woods, 9 Dana, 47, greater diligence is necessary in en-
forcing judgment against the payor than in obtaining it. Though it is not necessary for
the plaintiff to apply for the issuing of an execution before it is regularly due (2 Litt.,
136), failure to place it in the sheriff's hands during the following periods after it became
due were held to be inexcusable negligence, viz.: for three months (1 Afon., 101-02); for
two months (1 Afet., 294) ; for thirty-six days (4 B. Af., 393) ; for fifteen days (9 Dana, 57) ;
and for seven days (6 B. Af., 419; 7 Id., 192) : but a delay for "three or four days" was
held to be excusable (5 Mon., 277) ; and, under explanatory circumstances, delays during
the following periods were held to be excusable, vis. : for ten days (9 B. M., 53) ; for
twenty-one days (8 B. Af., 297) ; for twenty-five days (2 f. J. Af., 218-19) ; and for thirty-
five days. 3 B. Af., 584.

And, when the plaintiff is entitled to a writ of capias ad satisfaciendum, he must cause



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PETITIONS ON IMPLIED CONTRACTS. 545



it to be issued, as well as a fieri facias, with the same diligence as to the former as the lat-
ter, a Mar., 523 ; Bryan v. Perry, 5 Man., 275.

2. If an action against the payor be necessary before suing the assignor, the assignee
must not only show that he has obtained a judgment against the payor and a return of no
pro pevty found on a fieri facias (Francis v. Gant, &c, 80 Ay., 190), or that the payor has
taken the oath of insolvency upon arrest under a capias ad satisfaciendum (5 Mon., 276);
but he must show that he has exhausted any other remedy legal or equitable, direct or
collateral, which he may appear to have had for obtaining satisfaction of the demand
against the payor : as, by compelling him to give bail for his appearance, if that can be
done (see Code, title VIII, , ch. I), and, if bail be given, by suing the sureties if the payor
fail to appear and be not surrendered (1 Bibb, 546-47; 6 Man., 119) ; and, by showing the
result of the payor's arrest, if he has been arrested on a capias (5 Litt., 333), and the dis-



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 73 of 142)