Page:Federal Reporter, 1st Series, Volume 2.djvu/52

 BANK OP BBITI8H N. AliBBIOA V. BLLI8, 45 �Ellïs G. Hughes, for plaintiff. �George H. Durham and W. M. Gregory, for defendant. �Deady, D. J. This action is brought to recover the sum of $2,025, on 43 promissory notes made on May 1, 1878, by as many different persons, to the order of the Dayton, Sheridan & Grande Eonde Eailway Company, and by it indorsed to J. Gaston. Afterwards, and before the maturity of said notes, they were indorsed in blank by said Gaston and defendants, and acquired by the plaintiff in the due course of business. �The case was before the court November 12, 1879, on a demurrer to the original answer. The demurrer being sus- tained, the defendants had leave to file an amended answer, containing further defences to the action, to which the plain- tiff also demurs. �The complaint alleges that each of said notes contained a stipulation that, in case suit should be instituted for the col- lection of the same, there should be paid such sum aa the court might deem reasonable as an attorney fee in said suit, and that $220 is such fee. �The amended answer denies that the plaintiff is entitled to recover any attorney fee in- this action; and, for a further defence, alleges that, after said notes had been indorsed in blank by said Gaston and the defendants, the said Gaston negotiated the same to the plaintiff, and it became the owner thereof; that afterwards, and before the commencement of this action, the plaintiff wrote oVer said Gaston's name �thereon a special indorsement to itself^'Tay to the of �the Bani 6î British North America or order" — and "thereby released the defendants, and each of them, from any and ail liability on said indorsements." �The answer also shows the order in which the indorsements were made on said notes, from which it appears that Gaston's name was written first, and those of the live defendants im- mediately "thereunder, so that it was convenient, if not nec- essary, for the plaintiff, in writing the special directions thereon making the note payable to itself or order, to write the same as it did immediately above the name of Gaston. �This (lefence assumes that the holder of a negotiable instru- ����