Blacklege v. Benedick

Pbekins, J. Suit against the indorser of notes payable at a bank. The complaint did not allege a presentment of the notes at the bank for payment, protest, and notice, &c., nor an excuse for the failure to do so. It alleged that the notes, at the date of the commencement of the suit, were lost. Judgment by default. The contract of an indorser of a note payable at bank, is,-that he will pay it on failure of the maker to do so on proper presentment and demand, if he, the indorser, is duly notified of such failure of the maker. Such demand, failure, and notice, where no legal excuse for failure to demand, &c., exists, are a condition precedent to the liability of the indorser, and a complaint which fails to aver these facts, in a suit against the indorser, does not state facts sufficient to constitute a cause of action. This objection to a complaint is good on appeal. See Havens v. Talbott, 11 Ind. R. 323; Chit. Pl. 328; How. (N. Y.) Code, 193; Slacum v. Pomery, 2 Cond. (U. S.) Rep. 351; Byles on Bills, top p. 669. Per Gwriam. The judgment is reversed with costs. Cause remanded with instructions to set aside the default, and give the plaintiff leave to amend.