19. Legal Effect. The legal effect of written documents offered in evidence is a question for the court, and not for the jury: Carpentier v. Thirston, 24 Cal. 268.

20. Lost Instrument.-A party need not plead loss of an instrument, unless it be a negotiable instrument properly indorsed: McClusky v. Gerhouser, 2 Nev. 47. A motion to make a pleading more definite and certain, by setting forth the contents of a written instrument relied on by the pleader, should not prevail where it appears that the instrument is lost, and the pleading apprises the adverse party of the nature and effect of the instrument: Kellogg v. Baker, 15 Abb. Pr. 286.

21. Missouri.-In actions on written instrument, plaintiff must set out its legal effect: Moore v. Platte County, 8 Mo. 467. Under the Practice Act of 1849, in Missouri, the instrument does not become part of the complaint, nor is it necessary that it should be included in the copy of the complaint: Hadwen v. Home Mut. Ins. Co., 13 Mo. 473.

22. New Promise, when to be Alleged.-In actions upon written instruments for the payment of money, as promissory notes, the date being shown, shows the period when the right of action accrues. In such cases,

any new promise which has been made, renewing or continuing the contract, should be alleged: Smith v. Richmond, 19 Cal. 481.

23. Ohio.-In Ohio, this provision under the statute extends to accounts and other instruments "for the unconditional payment of money only." But a judgment cannot be so pleaded: Memphis Med. College v. Newton, 2 Handy, 163.

24. Promissory Notes.-When a copy of the promissory note is annexed, and the answer is not verified, the due execution and genuineness of . the note is admitted: Burnett v. Stearns, 33 Cal. 468; Horn v. Volcano Wat. Co., 13 Cal. 62; Kinney v. Osborne, 14 Cal. 112. So of a bond. And if the complaint contains a copy of the written instrument sued on, and is not verified, and the answer denies its execution, but is not sworn to, the note is admissible in evidence without proof of the genuineness of the signature: Corcoran v. Doll, 32 Cal. 83; Horn v. Volcano Wat. Co., 13 Id. 62; Sacramento County v. Bird, 13 Id. 66; Burnett v. Stearns, 33 Cal. 468.

25. Proof of Execution. -An instrument in writing, executed and attested by a subscribing witness in a foreign country, or beyond the jurisdiction of the court, can be proved by evidence of the handwriting of the party who executed it: Me Minn v. Whelan, 27 Cal. 300.

26. Proof of Written Instrument. -The intent of the statute is fully carried out by excluding parol testimony to contradict a deed; but where parties admit the real facts of the transaction in their pleadings, these admissions are to be taken as modifications of the instrument: Lee v. Evans, 8 Cal. 424; as no proof is required of facts admitted or not denied: Patterson v. Ely, 19 Cal. 28; Landers v. Bolton, 26 Id. 416.

27. Reference to Counts. Where a written instrument is made part of the complaint with both the first and second counts, and in the second count is referred to as already on file with the former, the latter will be sufficient: Peck v. Hensley, 21 Ind. 344.

28. Sealed Contract.-Where the sealing of an instrument is sufficient according to the laws of a State in which it was made, the remedy upon it in a State in which such mode of sealing is not sufficient, must be according to

the law of the latter State, instead of the former. Thus, in New York, an action on a deed sealed with a scroll, must be an action appropriate to unsealed instruments: 5 Johns. 239; 12 Id. 198; 1 Den. 376; 4 Cow. 508; 4 Kent. 451; 8 Pet. 362; Story's Confl. of L. 47; 3 Gill. & J. 234; 6 N. H. 150. An impression of the seal of a corporation stamped upon the paper on which a mortgage of the corporation is written, is a good seal, although no adhesive substance is used: Ilendee v. Pinkerton, 14 Allen (Mass.) 381.

29. Specialty.---In declaring on a specialty, it must be averred that it was sealed by the defendant. Setting it forth, with its conclusion that it was signed and sealed with the name of the defendant and with an L. S., is not sufficient: 1 Saund. 291; 1 Chitt. Pl. 109; Van Santvoord v. Sandford, 12 Johns. 197; Macomb v. Thompson, 14 Id. 207. To much the same effect: Stanton v. Camp, 4 Barb. 274. Although "indenture," "deed," "writing obligatory," were held to import a seal: Cabell v. Vaughan, 1 Saund. 291; Phillips v. Clift, 4 Hurlst. & N. 168.

30. Specialty, Delivery of.-The delivery of a specialty, though essential to its validity, need not be stated in a pleading. It is enough to allege that it was made by the defendant, as that implies delivery: 1 Chitt Pl. 318; 1 Saund. 291; 12 How. Pr. 452; Lafayette Insurance Co. v. Rogers, 30 Barb. 491.

31. Subscription.-The word "agent," appended to the signature of the agent, is not mere descriptio personæ. It is the designation of the capacity in which he acted: Sayre v. Nichols, 7 Cal. 535; see Tolmie v. Dean, Wash. Terr. 60. That "executed" implies "subscribed:" See Cheney v. Cook, 7 Wis. 413. Where a contract purported upon its face to have been made by an agent, and it is set forth in full in the complaint, it must be alleged that the agency was duly constituted: Regents v. Detroit Society, 12 Mich. 138.

32. Terms, how Construed. -All the terms of the promise, including the kind of money in which the payment is to be made, are to be ascertained by an inspection and construction of the instrument: Burnett v. Stearns, 33 Cal. 468.

33. Under Seal.-Where the law requires an instrument to be under seal to authorize a particular remedy thereon, it is necessary to state that it is under seal. But where it is wholly immaterial whether the instrument was or was not under seal, an averment that it was in writing is supported by the production of a written instrument, either with or without a seal attached: Jenkins v. Pell, 20 Wend. 450. In California all distinctions be tween sealed and unsealed instruments are abolished: Civil Code, sec. 1629. 34. Varying Terms.-Parol evidence is admissible to vary the terms of a written contract: Lennard v. Vischer, 2 Cal. 37.

35. Writing Implied.-An award set forth, "as in the form following," and with a date, may be presumed to have been in writing: Munro v. Alaire, 2 Cai. 320. When the terms and conditions of an agreement are set out in a complaint, and the violation of that agreement is charged against the defendant, if it is such an instrument as the law requires to be in writing, and the complaint is silent whether it was oral or in writing, courts will pre sume it was a lawful written instrument, until the contrary appears: Fun Dorn v. Tjader, 1 Nev. 350.

No. 189.

ii. On a Bond for the Payment of Money only.

[TITLE.]

The plaintiff complains, and alleges:

the

I. That on the... ... day of... ..., 187., at.. defendant covenanted with the plaintiff, under his hand and seal, to pay to the plaintiff the sum of........ dollars.

II. That he has not paid the same.

[Demand of Judgment.]

36. Breach, how Alleged.—It is not alone sufficient to show a technical breach of the literal terms of a covenant in a bond; but upon a reasonable interpretation of the intent and meaning of the covenant, to be ascertained from all its terms, it must likewise appear that some substantial right guarantied thereby has been infringed, or some of its purposes defeated: Levitsky v. Johnson, 35 Cal. 41. It is suggested that specific breaches should be assigned, even on a mere money bond: Western Bank v. Sherwood, 29 Barb. 383.

37. Gold Coin.-In California, where the contract or bond was for payment in gold coin, it must be averred, and judgment demanded accordingly. 38. Guarantor.-What averments on a bond are sufficient to charge a guarantor, see Tappan v. Cleveland R. R. Co., 4 West. Law Month. 67.

39. Mutilated Bond.-If the obligee tear off the seal or cancel a bond, in consequence of fraud and imposition practiced by the obligor, he may declare on such mutilated bond as the deed of the party, making a proper averment of the special facts: 3 Durnf. & E. 153; United States v. Spalding, 2 Mason Cir. Ct. 478.

40. What Written Obligation Imports.-The term "written obligation" imports a sealed instrument: Clark v. Phillips, Hempst. 294. Under the statutes of California, bonds are on the same footing as undertakings: Canfield v. Bates, 13 Cal. 606.

No. 190.

iii. On a Bond-Pleading it according to its Legal Effect. [TITLE.]

The plaintiff complains, and alleges:

I. That on the ...... day of ....

187., at

.....

the defendant covenanted with the plaintiff, under his hand and seal, to pay to the plaintiff the sum of [state the actual debt], in gold coin, on the ...... day of ... with interest from, etc. [or otherwise, according to the condition]. II. That he has not paid the same.

[Demand of Judgment.]

No. 191.

[TITLE.]

iv. By a Surviving Obligee, on a Joint Bond.

The plaintiff complains, and alleges:
I. That on the ...... day of

187., at.......

the defendant made and sealed his certain bond, of which the following is a copy [copy the bond], and thereby covenanted with the plaintiff and one R. N. to pay them the sum of ...... dollars [on, etc., stating when it became payable].

II. That on the....day of.. R. N. died.

187., at....

said

III. That no part thereof has been paid.

[Demand of Judgment.]

41. Averment of Death of Joint Obligee.-One of two joint obligees cannot sue, unless he avers that the other is dead. Wherever, by reason of a several interest, one may sue, he must set forth the bond truly, and then by proper averments show a cause of action in himself alone: Ehle v. Purdy, 6 Wend. 629.

42. Joint and Several Bonds.-No recovery can be had on a bond purporting to be the joint bond of the principal and sureties, but signed by the latter only: Sacramento v. Dunlap, 14 Cal. 421. It is otherwise as to a joint and several bond, where each signer is considered bound without the signature of the others named as obligors: Id. Where a complaint is against two or three obligors, it must aver that all three have failed to pay the debt: Robins v. Pope, Hempst. 219. Under the statute of Indiana, the representatives of a deceased joint obligor may be sued on a joint and several obligation: Curtis v. Bowrie, 2 McLean, 374. A declaration in an action of debt against the obligor, setting forth a joint and several bond, cannot be annulled by adding a new count, setting forth a bond by the defendant and another person: Postmaster-General v. Ridgeway, Gilp. 135.

CHAPTER II.

BILLS OF EXCHANGE.

No. 192.

i. Foreign Bills—Payee against Drawer for Non-Acceptance.
[TITLE.]

The plaintiff complains, and alleges:

I. That on the....day of........, 187., at.

the

defendant made and delivered to the plaintiff his certain bill of exchange of that date, of which the following is a copy [copy the bill]:

II. That on the....day of

duly presented to the said...

187., the same was

.., for acceptance, but was

not accepted, and was thereupon duly protested for nonacceptance.

III. That due notice thereof was given to the defendant. IV. That he has not paid the same.

V. That the value of a similar bill of exchange at the time of said protest, in...... ...., that being the place where said bill was negotiated, and where such bills are currently sold, was . . . . . . . . dollars.

Wherefore the plaintiff demands judgment against the defendant for the sum of..........dollars [the amount named in the bill], and.... . dollars damages, and interest on said sums from the....day of .... [date of protest], and costs of suit.

,

187.

NOTE. The fifth paragraph above is drawn under section 3238 of the Civil

Code.

1. Definition. A bill of exchange drawn in one State upon a person in another, is a foreign bill: Dickens v. Beal, 10 Pet. 572; Buckner v. Finley, 2 Id. 586; Bank of United States v. Daniel, 12 Id. 32. And such bills are, by the custom of merchants, protested if dishonored: Townsley v. Sumrall, 2 Pet. 170.

2. Alteration.-If a person who has no authority to do so, and who is not the agent of the payee for that purpose, writes across the face of a draft, payable generally in money, the words "payable in United States gold coin," it is not such an alteration of the draft as vitiates it: Langenberger v. Kroeger, 48 Cal. 147; see, also, Flint v. Craig, 59 Barb. 319. An alteration is material and vitiating, which, in any event, may alter the promisor's liability, if made without his consent at the time, unless subsequently approved by him: Id. Erasing the words "to order of," and inserting "or bearer" instead, is material, and avoids the note: Booth v. Powers, 56 N. Y. 22. In such case it matters not whether the alteration was with fraudulent intent or not, except as such intention affects the right to resort to the original indebtedness: Id.; see, also, Meyer v. Huncke, 55 N. Y. 412; reversing S. C., 65 Barb. 301; Seibel v. Vaughan, 69 Ill. 257; Beale v. Roberts, 113 Mass. 525; Evans v. Foreman, 60 Mo. 419; Goodspeed v. Cutter, 75 Ill. 531.

3. Damages on Foreign Bills, Protested.-In California, damages are allowed, as a full compensation for interest accrued before notice of dishonor, re-exchange, expenses, and all other damages, in favor of holders for value only, upon bills of exchange drawn or negotiated in that State, and protested for non-acceptance or non-payment, as follows: 1. If drawn upon any person in this State, two dollars upon each one hundred of the principal sum specified in the bill; 2. If drawn upon any person out of this State, but in any of the other states west of the Rocky Mountains, five dollars upon each one hundred; 3. If drawn upon any person in any of the United States east of the Rocky Mountains, ten dollars upon each one hundred; 4. If drawn upon any person in any foreign country, fifteen dollars upon each