allegation that the note is due is unnecessary); S. P. Postel v. Ord, 1 Ind. App., 252; s. c. 27 N. E. Rep., 584. South Carolina.-Stoddard v. Hill, 38 S. C., 385; s. c. 17 S. E. Rep., 138. (Maturity of note sufficiently alleged by an averment that the balance due thereon is "past due and unpaid.") Texas.—Grabam v. Miller, Tex. Civ. App., 1894, 24 S. W. Rep., 1107. (Where the only thing necessary to make the note due is the holder's election that it should mature, an averment, that plaintiff has demanded payment, is a sufficient averment, in absence of special exception, of notice of plaintiff's election, and that the debt is due.)

(5) Plaintiff's ownership.

California.-Bank of Shasta v. Boyd, 99 Cal., 604; s. c. 34 Pac. Rep., 337. (In an action by the payee of a note, an allegation that plaintiff is the owner thereof is unnecessary and a denial of such allegation raises no issue.) Eames v. Crosier, 101 Cal., 260; s. c. 35 Pac. Rep., 873. (Allegation that plaintiff is the owner and holder of note, and that the payee thereof, for value, and before maturity, assigned it by an endorsement in blank, sufficiently shows plaintiff's title.) Pryce v. Jorden, 69 Cal., 569; s. c. 11 Pac. Rep., 185. (In an action by an indorsee, plaintiff's ownership of the note at the commencement of the action is sufficiently pleaded by an allegation that payee "indorsed, assigned and delivered the note to plaintiff," and that no part of the same has been paid.) Illinois.—Rozet v. Harvey, 26 Ill. App., 558. (Declaration in an action by payee against the maker of a note need not set out a blank indorsement by plaintiff.) Indiana.-Brotherton . Street, 124 Ind., 599; s. c. 24 N. E. Rep., 1068. (Demurrer to complaint sustained, where the copy of the note set forth shows an indorsement from which it appears that the title of the note is in a person other than the plaintiff.) Bascom v. Toner, 5 Ind. App., 229; s. c. 31 N. E. Rep., 856. (In an action by an indorsee against the maker of a note, a copy of the indorsement need not be set out with the copy of the note; since in such a case the note, and not the indorsement, is the contract sued on, the indorsement being merely the manner of acquisition.) Michigan.-Bitzer v. Wagar, 83 Mich., 223; s. c. 47 N. W. Rep., 210. (In an action on a note payable to bearer it is unnecessary to allege a transfer by payee to plaintiff.) New York.-Pearl v. Raduziner, 10 Misc., 45; s. c. 62 State Rep., 771; 30 N. Y. Supp., 810. (In an action by payee of note, a transfer thereof by him and a retransfer to him need not be alleged.) Oishei v. Craven, 11 Misc., 139; s. c. 31 N. Y. Supp., 1021. (It is sufficient, in an action against maker, to generally allege that the note was assigned, delivered, transferred and indorsed to plaintiff, without specifically alleging that it was indorsed by payee.) Washington.—Davis v. Erickson, 3 Wash., 654; s. c. 29 Pac. Rep., 86. (Complaint alleging that plaintiff assigned the note sued on as security for a debt, and that the assignee refused to bring an action thereon, states no cause of action ) Wisconsin.-Geilfuss v. Gates, 87 Wis., 395; s. c. 58 N. W. Rep., 742. (Complaint sufficiently shows plaintiff's ownership of the note, which alleges the assignment of all the property of a bank to plaintiff as assignee for the benefit of its creditors, and that he is the lawful owner and holder of the note.)

(6) Acceptance, presentment, protest, notice, etc.

Arkansas.-Wards v. Sparks, 53 Ark., 519; s. c. 14 S. W. Rep., 898. (Allegation that bill was protested for non-payment, without more, imports all necessary steps to fix the liability of drawer or indorser.) Illinois.— Hart v. Otis, 41 Ill. App., 431. (In an action upon a foreign bill, protest, or some excuse for the omission thereof, should be alleged, but the objection to a declaration omitting such allegation cannot be reached by a general demurrer.) Indiana.-Brown v. Jones, 125 Ind., 375; s. c. 25 N. E. Rep., 452. (In an action against the drawer and indorser of a bill, the acceptance thereof not being the foundation of the action, a copy of it need not be filed with the complaint, and if filed cannot control the averments.) Offutt v. Rucker, Ind. App., 1891; 27 N. E. Rep., 589. (In an action against drawer, it is sufficient to allege that the check was duly presented and payment refused; it is unnecessary to allege the reason given for the bank's refusal to pay, or that drawer had no funds.) Michigan.-Gooding v. Underwood, 89 Mich., 187; s. c. 50 N. W. Rep., 818. (Under a declaration merely charging defendant with having accepted a bill on condition that the amount thereof should be found due from him to drawer, plaintiff cannot prove that defendant is estopped from denying the indebtedness to drawer.) New York.-Jaffray v, Krauss, 79 Hun, 449; s. c. 61 State Rep., 254; 29 N. Y. Supp., 987. (In action against indorser of a note, complaint dismissed for failure to allege presentment, demand and non-payment of note by maker, and notice thereof to defendant.) Rawley v. National Bank of Deposit, 63 Hun, 550; s. c. 45 State Rep., 331; 18 N. Y. Supp., 545. (In an action by a payee of a check against the bank on which it was drawn, complaint held demurrable for not alleging that plaintiff indorsed the check, or that defendant was bound to pay it.) Hirschfelder v. Locey Mining, etc., Co., 42 State Rep., 108; s. c. 17 N. Y. Supp., 726. (In an action against the acceptor and drawer of a bill, notice to drawer of acceptor's non-payment held sufficiently pleaded, where complaint alleged presentment to both defendants and their refusal to pay.) Alleman v. Bowen, 39 State Rep., 822; 15 N. Y. Supp., 318. (Though the note was indorsed after its maturity, to charge the indorser thereon, notice to him of demand upon maker, and his refusal to pay must be alleged.) Pennsylvania.-Penn. Natl. Bank v. Kopitzsch Soap Co., 161 Pa. St., 134; s. c. 28 Atl. Rep., 1077. (In an action by transferee against the drawer of a check, declaration held insufficient to require an affidavit of defense, which contained a copy of the check, and a common count for money paid, but did not allege plaintiff's title, presentment to drawer, his refusal to pay, nor the amount due from him to plaintiff.) Utah.-Smith v. McEvoy, 8 Utah, 58; s. c. 29 Pac. Rep., 1030. (In an action against an indorser of a note, an allegation that "he had due legal notice" of non-payment and dishonor thereof, held sufficient.)

(7) Non-payment.

California.-Notman v. Green, 90 Cal., 172; s. c. 27 Pac. Rep., 157. (Non-payment of the note sued on must be alleged); S. P. Barney v. Vigoreaux, 92 Cal., 331; s. c. 28 Pac. Rep., 678. Wise . Hogan, 77 Cal., 184;

s. c. 19 Pac. Rep., 278. (In an action against the administrator of a deceased maker, an allegation of non-payment by deceased is enough.) New York.-Wright v. Deering, 2 Misc., 296; 50 State Rep., 328; 21 N. Y. Supp., 929. (Defect in complaint on a note in not alleging the makers non-payment or his indebtedness upon it, held, cured by evidence thereof received without objection.) See also Note to Lent v. N. Y. & Mass. Ry. Co., p. 475, this vol.

COMPLAINTS IN ACTIONS ON INSURANCE

POLICIES.

[Principal Case, p. 94, this Vol.]

(1) Insurable interest.

(2) The policy; its execution, contents, etc.

(3) Performance of conditions.

(4) Loss; its cause, amount, etc.

(5) Non-payment.

(1) Insurable interest.

Alabama.-Commercial Fire Ins. Co. v. Capital City Ins. Co., 81 Ala., 320; s. c. 8 So. Rep., 222. (Statutory form of complaint is sufficient without expressly alleging insurable interest.) Indiana.-Phoenix Ins. Co. v. Wilson, 132 Ind., 449; s. c. 25 N. E. Rep., 592. (After verdict, an allegation that plaintiff was owner of the property when destroyed, sufficiently alleges ownership in fee.) Indiana, etc., Ins. Co. v. Bogeman, 4 Ind. App., 237. (Complaint held to be insufficient on demurrer, in an action for livestock insurance, where plaintiff's ownership or interest in the insured animal at the time of its death was not alleged.) Kansas.— St. Paul, etc. Ins. Co. v. Kelly, 43 Kan., 741; s. c. 23 Pac. Rep., 1046.) (Where it was alleged that plaintiff was the owner of the goods insured and destroyed by fire, and had an insurable interest therein. Held, that the words insurable interest were to be regarded on demurrer as surplusage, and not as claiming an interest less than ownership, not covered by the policy.) Michigan.—Ermentrout v. American Ins. Co., Mich., 1895, 62 N. W. Rep., 543. (Where policy provides that loss shall be payable to assignee of mortgagee as interest may appear, complaint of a subsequent assignee is sufficient, which alleges an assignment to him of the former assignee's interest without specially alleging a mortgage, or the extent of such former assignee's interest.) Oregon.-Hardwick v. State Ins. Co., 20 Ore., 547; s. c. 26 Pac. Rep., 840. (Complaint is insufficient on demurrer, if plaintiff's insurable interest, both at the time of making the contract and at the time of loss, is not alleged.) Texas.-Commercial Union Assur. Co. v. Dunbar, Tex. Civ. App., 1894, 26 S. W. Rep. 628. (Demurrer sustained for a failure to allege that plaintiff had an insurable interest at the time of insurance and the time of loss.) United States.Earnmoor v. California Ins. Co., 40 Fed. Rep., 847. (Libel on a policy of marine insurance should show an insurable interest in vessel at the time

when the policy purports to take effect.) Kentucky Life & Acci. Ins. Co. v. Hamilton, 63 Fed. Rep., 93. (An allegation that the policy in suit was not speculative, without expressly alleging that plaintiff had an insurable interest, is sufficient after verdict.) Vermont.-Dickerman v. Vermont Mut. Fire Ins. Co., Vt., 1895, 30 Atl. Rep., 808. (Plaintiff's insurable interest at the time of making policy and time of loss, must be alleged.)

(2) The policy; its execution, contents, etc.

California.-Rebut v. Legion of the West, 96 Cal., 661; s. c. 31 Pac. Rep., 1118. (In an action to recover an instalment of an endowment, it is insufficient to set forth the coupon therefor without the certificate to which it is attached and to which it refers.) Himmelien v. Supm. Council Am. Legion of Honor, Cal., 1893, 33 Pac. Rep., 1130. (Complaint on a benefit certificate will not be dismissed for failing to set out the application for membership referred to in the certificate as being on file in the company's office.) Stockton, etc., Works v. Glen Falls Ins. Co., 98 Cal., 557; s. c. 33 Pac. Rep., 633. (Complaint alleging the issuing of a fire policy, submission to arbitration and a promise by defendant to pay the award, will be regarded as setting forth a cause of action upon the award, and plaintiff cannot recover without proof that defendant agreed to the arbitration.) Illinois.-Illinois, etc., Ins. Co. v. Baker, 49 Ill. App., 92. (Declaration need not allege a waiver of the special limitation provided by the policy, but plaintiff may leave it to defendant to set up the limitation by special plea and plead the waiver by his reply.) Phoenix Ins. Co. v. Stocks, Ill., 1893, 36 N. E. Rep., 408. (The application for insurance is not a part of the contract that must be filed in an action on the policy.) Indiana.—Indiana, etc., Ins. Co. v. Byrkett, 9 Ind. App., 443; s. c. 36 N. E. Rep., 779. (Copy of application need not be set out with the policy.) S. P. Phoenix Ins. Co. v. Stark, 120 Ind., 444; s. c. 22 N. E. Rep., 413; Continental Ins. Co. v. Dorman, 125 Ind., 189; s. c. 25 N. E. Rep., 2139. (Complaint alleging that a premium note was accepted as absolute payment, where it appears that the policy provides that it shall only be accepted as payment at maturity-is bad.) Michigan. -Knop v. National Fire Ins. Co. 101 Mich., 359; s. c. 59 N. W. Rep., 653. (Evidence of household articles destroyed by fire, inadmissible, where bill of particulars furnished did not attempt to give any further information, but merely described them as "contents of house.") Dove v. Royal Ins. Co., 98 Mich., 122; s. c. 57 N. W. Rep., 30. (Where declaration counts on policy for $2,100, covering $100 on a barn, a policy of $1,800, covering inter alia, $400 on a barn, is inadmissible in evidence.) Connecticut Fire Ins. Co. v. Kinne, 77 Mich., 231; s. c. 43 N. W. Rep., 871. (Declaration on an insurance policy cannot be amended to show an oral contract of insurance, and an agreement to deliver a policy in accordance therewith, and a delivery of a different policy by defendant's mistake or fraud.) Missouri.-Heffernan v. Supm. Council, etc., 40 Mo. App., 605. (Where petition alleges an unconditional contract, it is not error to admit in evidence a contract containing conditions, if defendant has not been misled.) New York.-Black v. Homeo

pathic Mut. Life Ins. Co., 47 Hun, 210. (Where the policy is set forth, its legal effect will be gathered from its terms, and not from the allegations of the complaint.) Knarr v. N. Y. State, etc., Ass'n., 79 Hun, 83; s. c. 61 State Rep., 365; 29 N. Y. Supp., 508. (Complaint of administrator showed a policy payable to insured's wife, or in case she did not survive, to his administrator, held, that the complaint was insufficient in not alleging that the wife did not survive.) North Carolina. -Britt v. Mutual Benefit Life Ins. Co., 105 N. C., 175; s. c. 10 S. E. Rep., 896. (Application for policy need not be set out in the complaint.) South Dakota.-First Nat. Bk. v. Dakota, etc., Ins. Co., So. D., 1895, 61 N. W. Rep., 439. (Complaint stating that proofs of loss were made immediately after the fire, but neither stating nor showing on its face that 60 days thereafter have elapsed before suit-is insufficient.) Texas.-Commercial Union Assur. Co. v. Dunbar, Tex. Civ. App., 1894, 26 S. W. Rep., 628. (Complaint referring to policy, but not setting it forth or stating its terms, is bad on demurrer.) United States.-Manhattan Life Ins. Co. v. Willis, 8 C. C. A., 594; s. c. 60 Fed. Rep., 236. (For the purpose of admitting the policy in evidence, it is sufficient to describe it generally as a policy of insurance covenanting to pay assured, etc., a specified sum upon satisfactory proof of death during its continuance, without stating its other terms and conditions.) Wisconsin.-Butternut Manuf. Co. v. Manufacturer's Mut. Ins. Co., 78 Wis., 202; s. c. 47 N. W. Rep., 363. (Where legal effect of the policy was sufficiently alleged, but the copy of the policy set forth inadvertantly omitted the name of the insurance company, held, that the complaint was, nevertheless, sufficient.) Shove v. Shove, 79 Wis., 497; s. c. 48 N. W. Rep., 647. (Under an allegation that plaintiff is holder and owner of the life policy sued on, evidence may be given to show that he holds it as collateral security for a debt which has not been paid.) Wyoming.—Hartford Fire Ins. Co. v. Kahn, Wyo., 1893, 34 Pac. Rep., 895. (Complaint held good on demurrer, although it did not expressly allege the time during which the policy was to continue, or that it was in force at the time of loss.)

(3) Performance of conditions.

California.-Richards v. Travelers' Ins. Co., 89 Cal., 170; s. c. 26 Pac. Rep., 762. (Notice and proof of loss sufficiently alleged by averments that more than 90 days (the time provided by policy) had elapsed prior to the commencement of the action after proof of loss, and that plaintiffs have duly complied with all of the conditions of the policy to be performed by them.) S. P.; Emery v. Svea Fire Ins. Co., 88 Cal., 300; s. c. 26 Pac. Rep., 88. Colorado.-California Ins. Co., 15 Colo., 70; s. c. 24 Pac. Rep., 577. (Amendment of complaint at trial so as to allege waiver of the condition that the policy should not be payable until 60 days after proof of loss, does not change the cause of action.) Indiana.-Phoenix Ins. Co. v. Golden, 121 Ind., 524; s. c. 23 N. E. Rep., 503. (Performance of a condition against the insured building becoming vacant or unoccupied, if it can be regarded as a condition precedent, is sufficiently alleged by averment of performance of every act which by the terms