Timmons v. Wiggins. said notes were payable. This objection is well taken. It will not be presumed that they were payable to order or bearer in a bank in this State, and as it is not averred that they were payable to the plaintiff, he does not show any title in himself. There is nothing averred in the complaint to indicate that said notes were not payable to and obtained by the defendant from some person other than the plaintiff. It is true that the complaint contains this averment, "and also to pay plaintiff's attorney fee;" but this can not be construed to mean that the plaintiff is the payee, as such averment is as applicable to him as assignee as payee. If the notes contained stipulations to pay attorney fees, these were promises to pay such fees to any person instituting suit upon them; and, if any person other than the payee should institute such suit, the averment in question would apply to him as well as to the payee. This averment, therefore, does not indicate to whom the notes were payable, and without such averment the complaint was insufficient. In White v. Joy, 13 N. Y. 83, the complaint averred that the defendants, "by a promissory note in writing, for value received, promised to pay the sum of one thousand dollars one year after the said date. And the same was thereupon transferred to the said plaintiff, who is now the holder and owner thereof. The payment of said note was duly demanded at maturity. The said defendants have never paid the said note, or any part thereof, but are jointly indebted to the plaintiff therefor. Wherefore," etc. The court said: "The complaint is defective in not stating to whom the promissory note mentioned in it was 'made payable. It is not merely the want of a sufficiently definite statement, the remedy for which is by motion under section 160 of the code, but it is an attempt to set out the substance of a promissory note, omitting all notice of the payee, and not mentioning whether it had that essential feature or not. If the complaint had been demurred to, we should have been obliged to give judgment for the defendant." Timmons v. Wiggins. These remarks apply to this complaint, and for the reasons given we think the demurrer should have been sustained. The motion for a new trial was made upon the ground, among others, that the verdict was not sustained by sufficient evidence. It appears from the testimony of the plaintiff, that he and Benjamin A. Timmons, defendant's father, were in partnership in the grocery business from May, 1874, until August of the same year; that at that time he sold his interest in the stock on hand to the defendant, for which the notes in suit were executed; that in December, 1875, the plaintiff and the defendant had a settlement of the partnership affairs of the plaintiff and Benjamin A. Timmons, in which the notes were surrendered to the defendant, and the defendant and Benjamin A., as the firm of Timmons & Timmons, were to pay the firm debts of the plaintiff and Benjamin A. Timmons. He further testified that they did not and would not pay said debts, and that for such reason he was not willing to stand by the settlement. He offered no proof of a demand of the notes before bringing the suit, and the defendant testified that none was made. He also testified that the plaintiff, on the 11th of August, 1877, " told him to bring the notes over, but did not ask for them nor say he wanted them." There was no proof of fraud, mistake or error of any kind, but simply a failure and refusal to carry out the terms of such settlement. The testimony of the other witnesses did not substantially change the case made by the plaintiff's testimony. The averment in the complaint, that the "defendant, by trick, connivance and fraudulent pretences obtained possession of said notes," furnished an excuse for not filing the notes, or copies of them, with the complaint, but did not authorize the plaintiff to prove that a settlement made by him and the defendant, in pursuance of which the notes had been surrendered, was brought about by fraud, mistake or error of any kind, for the purpose of setting aside such settlement. The averment, fairly construed, meant that the defendant had pos Davis v. Fogg et al. session without right, and not that he had possession by virtue of an agreement fraudulently procured. Proof of the latter would not support an averment of the former. A settlement procured by fraud is binding until set aside. This will not be done without averment and proof. If the settlement is binding, the notes are extinguished. If it may be set aside for fraud, the facts which authorize it must be averred in order to maintain a suit upon the notes. Without expressing an opinion upon the ultimate rights of the parties, we will merely say that the evidence did not support the complaint, and for that reason a new trial should have been granted. For these reasons the judgment should be reversed. PER CURIAM.-It is therefore ordered, upon the foregoing opinion, that the judgment be and it is in all things reversed, at appellee's costs, with instructions to grant a new trial, to sustain the demurrer to the first paragraph of the complaint, and for further proceedings. No. 8460. DAVIS v. FOGG ET AL. CLARK'S GRANT.-Clarksville.-Action Against Trustees by Inhabitants.--Parties.-A citizen and taxpayer of the town of Clarksville, suing for himself and the other inhabitants thereof, can not maintain an action in his own name, for the management and application of the fund belonging to the town, derived from the sale of lots, under the direction of the court, neither the corporation nor its trustees or officers being made parties, and the complaint containing no allegation of any official default or dereliction of duty on their part, or that they have refused to sue. From the Clark Circuit Court. J. H. Stotsenburg, for appellant. Davis v. Fogg et al. MORRIS, C.-The appellant, on behalf of himself and the inhabitants of the town of Clarksville, brought this suit against the appellees, as the pretended trustees of said town, charging them with having in their hands a fund belonging to the town, derived from the sale of lots by certain commissioners appointed for that purpose by the Legislature of Virginia, in 1783. The complaint is, in substance, the same as that in the case of Carr v. McCampbell, 61 Ind. 97, except that, in this case, nothing is said about the town of Ohio Falls, and the appellant prays that the appellees be required to give bond for the security of the fund, and that, under the direction of the court, they be compelled to apply it for the benefit of the inhabitants of said town as contemplated by the statute of Virginia, passed in 1783. The appellees demurred to the complaint. The demurrer was sustained, and judgment rendered for the appellees. The sustaining of the demurrer is assigned as error. We think the court did not err in sustaining the demurrer. If the appellees have, as alleged in the complaint, the possession of funds derived from the sale of the lots in the town of Clarksville, such fund, under the act of June 17th, 1852, belongs to said town. The facts stated may show that the town, through its trustees, is entitled to sue for and recover this fund, but they do not show that the appellant is entitled to maintain this action. There is no allegation in the complaint of any official default or dereliction of duty on the part of the town or its officers in relation to this fund, nor that it or they have refused, upon proper application, to sue for and recover it. Neither the corporation nor its trustees or officers are made parties to the suit. Under such circumstances, a citizen and taxpayer of the town can not, we think, maintain an action in his own name, for the management and application of the fund. Were it shown that the appellees were the trustees of the town, an action against them to account should be brought in the name of the corporation, unless it appeared in the complaint, that, for sufficient reason, this could not be Anderson v. Donnell. done. Brown v. Vandyke, 8 N. J. Eq. 795. But it is alleged that the appellees were not, though they claimed to be, the trustees of the town of Clarksville. We think, upon the facts stated, no cause of action exists in favor of the appellant. Carr v. McCampbell, supra. PER CURIAM.-It is ordered, upon the foregoing opinion, that the judgment below be affirmed, at the costs of the appellant. No. 7702. ANDERSON v. DONNELL. INSTRUCTION.-Reference to Complaint in General Terms.-Practice.-In an instruction submitting an issue arising upon the sale and payment for eleven mules, a reference to the mules as a "lot of mules," without indicating the number designated in the complaint, was not too general. The complaint containing the precise number was already before the jury, to aid the reference to it with exactness. EVIDENCE.-Lost Receipt.-Practice.-If a trial court erred in striking out a party's testimony in his own behalf as to the execution and contents of a lost receipt, the subsequent admission of the party and the person who gave it, to testify to its execution, cured the error. From the Rush Circuit Court. L. Sexton and C. Cambern, for appellant. J. D. Miller, F. E. Gavin, G. B. Sleeth and J. W. Study, for appellee. NIBLACK, J.-This action was brought by William A. Donnell against James W. Anderson and John A. Maddux, upon a complaint averring facts which may be briefly stated as follows: That in the year 1870 the said Donnell and Maddux were partners in the business of buying and selling real estate and other property for the purposes of trade and speculation; that, during the existence of the partnership, they purchased two |