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makers or guarantors, it can only be done by showing the original agreement out of which their liability arises. The plaintiff as naked holder of the note, without proving the agreement of transfer, cannot recover. No presumptions arise, as in case of a promissory note, from the possession of the paper. The indorsement here has no greater efficiency than if it appeared upon a contract to build a ship. (16 Barb. 643.) (3.) But the doctrine under consideration has application to no other instruments than promissory notes; and has never been otherwise advanced. There is no danger of failure of justice. Equity has full power to relieve. It is her peculiar jurisdiction. But the plaintiff must allege and prove more than if he held a valid note and indorsement, which by their own vitality created an obligation against the defendant. (4.) The question is one of remedy, not of obligation. And hence the Massachusetts decisions cited are of no significance. Parties appealing to the laws must conform to their requirement, no matter where their rights accrued.

III. It follows that no liability is shown against these defendants. The only evidence on the point is the undenied allegation in the pleadings, that the defendants indorsed the note to the plaintiffs, and its production, with their firm name on the back. That, per se, creates no obligation.

IV. Regarding the paper in suit as a promissory note, stricti juris, the defendants have not been regularly charged as indorsers. The notice of non-payment sent to them was imperfect. It appears that, at the time of the protest, there were four notes precisely alike in terms, and distinguishable only by different numbers upon each. And all of them were transferred by the defendants shortly after their date, in the same manner as the one in suit. The notice of protest makes no identification referring to either. (1.) The notice of dishonor must contain "a description of the note, so as to ascertain its identity." "There should be a sufficiently definite description of the note to enable the party to know to what one in particular the notice applies." (Story on Promissory Notes, ii 348, 349.) (2.) Whenever the notice is insufficient, either upon its face, or

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through evidence aliunde, it cannot be sustained without proof that the indorser was not misled. It must appear that the notice, with accessory facts, fully apprised him of the particular note to which the former applied. It is only by auxiliary evidence of this character that a notice has ever been upheld, when various notes are shown to which it might indiscriminately apply. (Cayuga Co. Bank v. Warden, 1 Comst. 413. S. C. 2 Seld. 19. Beals v. Peck, 12 Barb. 245. Youngs v. Lee, 2 Kern. 551.) (3.) The objections to this notice of dishonor, apparent upon the proof are, 1st. There were four notes, to either of which it might apply, without any designation of the one to which it was referable. 2d. It does not describe the note as that of the Rutland and Burlington Rail Road Company. 3d. It falsely describes it as made by " S. Henshaw, Treasurer." It was also executed by "T. Follet, President." The whole notice was calculated to mislead, as to the identity of the note intended. These objections are answered by no proof of circumstances, (as in the case of Cayuga Co. Bank v. Warden, (supra,) showing that, nevertheless, the defendants were not misled. The evidence that Henshaw never executed any but the four notes mentioned, in which the defendants were named as payees, is unsatisfactory, and affects only the last two objections. These notes were those of the company, not of the treasurer. They were so in law, and so treated. And were undoubtedly so remembered and described by the defendants. The fact that Henshaw signed no others, did not, therefore, relieve the uncertainty of this notice. Had it appeared that the company executed no others to which the defendants were parties, it might have obviated the two last specified defects in the notice. The precise point raised by the first objection, has been decided in the court of appeals, subsequent to the case of Cayuga Co. Bank v. Warden. (Cook v. Litchfield, Selden's Notes, Dec. 1853, p. 23.)

John B. Gale, for the respondent. I. The note has all the requisites of a negotiable promissory note. It is a promise for the unconditional payment of a certain sum of money at a specified time, to the order of the payee. (Henschel v. Mah

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ler, 3 Denio, 428.) (1.) There is, it is true, a contemplated possibility that performance of that promise may not be required that the note may be surrendered before maturity, and exchanged for stock. The promise itself is, however, absolute and unconditional. Every promissory note, equally with this, is upon condition that it shall remain outstanding at maturity, and not have been previously taken up or satisfied by payment, renewal, or other means. (2.) It is not for the payment of money and the performance of any other act. In no event could the holder require money and stock. Stock could be required only upon a surrender of the note, and payment of money could not be required until six months after the holder's right to exchange it for stock had ceased. At its maturity payment of money was all that could be required; and such payment may be enforced without that hindrance which attends inquiries concerning specific performances and unliquidated damages, and by reason of which, contracts for the payment of money and the performance of some other act are denied the character and advantages of commercial paper. (3.) It is not in the alternative. A promise is an alternative one only when the promisor may fulfill it in either of two specified ways. Otherwise every promise is an alternative one, for the same may be satisfied (legally fulfilled) in whatever way the promisee may consent to.

II. The insertion in the note of the agreement to issue certain stock upon its surrender, has no effect upon the character of the note, as such, or upon the rights and liabilities of the indorsers and indorsee. (1.) The note retains, notwithstanding such insertion, every requisite and feature of a negotiable promissory note, and hence, it follows necessarily, that said agreement is without effect upon the liability of the defendants. as indorsers. (Pool v. McCrary, 1 Kelly's Rep. 319.) Action on note at foot of which was a memorandum that the same might be discharged by releasing the plaintiff from his indorsement on another note therein described. Held: "By an examination of the instrument sued on, we hold that it wants none of the essential qualities of a negotiable note, and that it was right to declare on it as such. It is for the absolute and

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unconditional payment of $1000 on a day fixed. There is a note or memorandum subjoined to the foot of it, specifying one of the modes in which it may be discharged." (2.) The converse of this point is not supported by any adjudged case or elementary writer. (3.) The principle upon which money promises that are conditional or alternative, or uncertain as to amount or time of payment and the like, are denied the character of negotiable paper, is, that that character and the consequence of a free circulation should not be afforded to paper that is uncertain in its terms, or involves inquiry about extrinsic facts. This note is certain and definite in its terms, and no extrinsic fact has to be determined, in order to enforce it, except the fact common to all negotiable paper, that it is held by the party seeking to enforce its payment. (4.) The note was evidently regarded by the parties as a promissory note, and indorsed accordingly.

III. The contract of indorsement is governed by the law of Massachusetts; and by that law the defendants are liable as indorsers. (Jones v. Fales, 4 Mass. R. 245.)

IV. If the note is not a negotiable promissory note, then the defendants are and should be liable as guarantors. (1.) Such is the law in Massachusetts, by which this question is determinable. (Joselyn v. Ames, 3 Mass. Rep. 274. Sweetzer v. French, 13 Metc. 262. S. C. 2 Cush. 310.) Held, that an indorser on an unnegotiable note is liable to indorsee, and that the latter may write a guaranty over the indorsement. (2.) Such is also the law in this state. (Griswold v. Slocum, 10 Barb. 402, and cases there cited.)

V. Complaint states the fact of indorsement. The nature and extent of the liability thereby incurred is a question of law, and not a fact to be alleged. Hence the complaint is sufficient, whether the defendants are indorsers or guarantors. But if not, it may now be amended; and there may yet be written over the indorsers' names whatever agreement that indorsement imports.

VI. The notice of protest was sufficient. (1.) It was only necessary to give a general description of the note. It was not ne

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cessary to state the number of the note, and thereby to distinguish it from notes otherwise like it. That there were such other notes did not then appear. The color of the ink or paper, or any other minute distinctive feature might as well be required to have been specified. It did not concern the defendants which one of the five notes was protested; but if it did it was their fault and not the plaintiff's, that a general description of the note did not give them all the desired information. (2.) The defendants were contractors on the road of the rail road company, and received the five notes in payment for work, and must have known the officers of the company-certainly the treasurer. The defendants knew by whom the notes were executed; indorsed the note in question; knew that the indorsement was outstanding; knew amount and date of note, and when it matured. The descriptive addition to the name of "Sam. Henshaw" plainly indicated that the note referred to was made by him as treasurer of some company, and the defendants had never indorsed any paper made by said Henshaw, except said five notes. Under such circumstances it is scarcely possible, and by no means probable, that the notice failed to inform the defendants that it referred to one of said five notes. (Cayuga Co. Bank v. Warden, 1 Comst. 413. S. C. 2 Seld. 19. Smith V. Whiting, 12 Mass. Rep. 5.)

VII. Whether the notice of protest under the attending circumstances gave the defendants the required information, is a mixed question of law and fact; and having been found for the plaintiff, the finding should not be reversed unless either the conclusion of fact is without evidence, or such finding necessarily involves an error of law. (2 Seld. 19.) What the contract of indorsement imports, and what information of non-payment had to be given to the indorsers as a condition precedent to their liability, are questions of law; but whether or not that legally required information was given in this instance, is a question of fact. The position that questions dependent upon ascertained facts are questions of law, is applicable only to ultimate facts, and not to those facts (which, in strict legal phraseology, are evidence as distinguished from facts,) from which another and