one hundred: Civil Code, secs. 3234, 3235; see, also, Pratalongo v. Larco, 47 Cal. 378, as to who is the holder in the sense of the statute. 4. Demand. If a draft does not specify the kind of money in which it is made payable, a demand of payment in gold coin, whether by a notary or the holder, is not sufficient to charge the drawer. The demand must be in accordance with the tenor of the draft: Langenberger v. Kroeger, 48 Cal. 147. In the absence of evidence to the contrary, the presumption is that the notary demands payment in the kind of money on which it appears on its face to be made payable. Id. 5. Dishonor.-"A bill of exchange, payable a certain time after sight, which is not accepted within ten days after its date, in addition to the time which would suffice, with ordinary diligence, to forward it for acceptance, is presumed to have been dishonored:" Civil Code (Cal.), sec. 3133. “A negotiable instrument is dishonored when it is either not paid, or not accepted, according to its tenor, on presentment for that purpose, or without presentment, where that is excused:" Civil Code, sec. 3141. Although a check may be actually dishonored by a refusal to pay upon proper demand before presumptive dishonor, yet to charge the check with the infirmity of dishonor in the hands of a third party to whom it has been transferred for a valuable consideration before the expiration of the reasonable time which must elapse before presumptive dishonor, notice of the previous actual dishonor must be brought home to him, or he holds it free from the taint of dishonor: Himmelmann v. Hotaling, 40 Cal. 111. 6. Difference of Exchange.-On a bill of exchange, payable at a particular place, it seems that the difference of exchange may be recovered, if the declaration contains the proper averment; but this is not the rule where the action is on a note, and there is no count or allegation in the declaration to cover the rate of exchange: Weed v. Miller, 1 McLean, 423. 7 Non-Payment. In a declaration on a foreign bill of exchange, for non-payment, no averment of a presentment for acceptance, or of a refusal and protest for non-acceptance of the bill is necessary: Brown v. Barry, 3 Dall. 365. 8. Notice of Dishonor.-Notice of dishonor may be given by a holder, or by any party to the instrument who might be compelled to pay it to the holder, and who would, upon taking it up, have a right to reimbursement from the party to whom the notice is given: Civil Code, sec. 3142. For service of notice see Id., secs. 3144-3151. As to what will excuse presentment and notice, see Id., secs. 3155-3160; see, also, Himmelmann v. Hotaling, 40 Cal. 111. 9. Omission of Demand and Notice.-The omission of demand and notice, when it cannot possibly operate to the injury of the indorser of a note, or drawer of a bill, does not discharge him; but the mere insolvency of the maker does not excuse neglect in presenting it: Smith v. Miller, 52 N. Y. 545. 10. Protest, when Necessary. Protest of a domestic note is unneressary: Brennan v. Lowry, 4 Daly, 253. A bill of exchange drawn in one State upon a citizen in another state, is a foreign bill, and protest is necessary to charge the indorser: Commercial Bank of Kentucky v. Varnum, 49 N. Y. 269. 11. Waiver of Demand.-A promise by an indorser after notice of non-payment of a note, and with full knowledge of all the circumstances attending presentment and demand, to pay the note or give a new one, will constitute a waiver of any irregularities in presenting or demanding the same, and even of presentment and demand itself: Meyer v. Hibsher, 47 N. Y. 265; Richard v. Boller, 51 How. Pr. 371. 12. Parties. An agent to whom a bill of exchange has been indorsed in blank for collection, may fill up the assignment to himself, and bring suit in his own name: Orr v. Lacy, 4 McLean, 243. 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 ... the defendant accepted the said bill. III. That he has not paid the same. [Demand of Judgment.] 187., at , NOTE. To recover statutory damages, see Form No. 192. 13. Acceptance.-In an action against B., as sole acceptor of a bill of exchange, the plaintiffs were entitled to recover under a count in the declaration, stating the bill to have been drawn on “B. & Co.," and to have been accepted by B., by the name and style of "B. & Co.," by writing the name of "B. &. Co." thereon: City Bank of Columbus v. Beach, 1 Blatchf. 438; compare Lapeyre v. Gales, 2 Cranch C. Ct. 291. 14. Letter of Credit.-A letter of credit, promising unconditionally to accept bills drawn upon its faith, is an actual acceptance in favor of a person, who, upon its faith, receives a bill so drawn for a valuable consideration: Naglee v. Lyman, 14 Cal. 450. 15. Promise to Indorse.-A promise to indorse under a letter of credit representing a person to be good, and saying that the writer will indorse for him on a purchase to a certain amount, the writer is not liable directly for the amount of a sale without any request to indorse, and unless an indorsement is required no action can be maintained: 16 Johns. 67; Stockbridge v. Schoonmaker, 45 Barb. 100. No. 194. iii. On Inland Bills-Drawer against Acceptor for Non-Payment. 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 of the bill]. II. That the defendant thereafter accepted the said bill. III. That he has not paid the same. [Demand of Judgment.] 16. Acceptance.-A promise that a drawer will pay a draft which may be drawn on him, is an acceptance, and he may be sued as acceptor: Wakefield v. Greenhood, 29 Cal. 597. An unconditional promise, in writing, to accept a bill of exchange, is a sufficient acceptance thereof, in favor of every person who upon the faith thereof has taken the bill for value or other good consideration: Civil Code, sec. 3197. As to how acceptance is made, who entitled to, what sufficient, acceptance by separate instrument, what acceptance admits, and cancellation of acceptance, see Civil Code (Cal.), sec. 3193, and following. 17. Acceptance, Date of.-If the bill is payable at a certain time after "sight," the date of acceptance should be stated; otherwise it is not necessary. 18. Acceptor.--A person, not personally a party to a bill of exchange, who for a consideration accepts the same, is an acceptor, equally as if he were drawee: Kelly v. Lynch, 22 Cal. 661. The loss of the acceptance by the drawee is a sufficient consideration for the acceptance by the third person: Id. 19. "After Sight."-A bill drawn payable so many days after sight, means after presentment for acceptance: Mitchell v. Degrand, 1 Mason, 175. 20. Corporations.--Where a draft is drawn by the president and secretary of a corporation upon its treasurer, no notice of presentation and nonpayment is necessary to hold the corporation: Dennis v. Table Mountain Water Co., 10 Cal. 369. The burden of proof is on the corporation to show that the drawee was provided with funds and ready to pay at maturity, in order to exempt them from damages and costs: 17 Johns. 218; Fairchild v. Ogdensburgh, Clayton and Rome R. R. Co., 15 N. Y. 337. 21. Equities between Parties.-Where a creditor takes a bill before maturity, as collateral security for an antecedent debt, if there be any change in the legal rights of the parties, the creditor becomes the holder for value, and the bill is not subject to the equities between the parties: Naglee v. Lyman, 14 Cal. 450; Robinson v. Smith, Id. 95. 22. Form of Bill.-The following written order possesses all the requisites of an inland bill of exchange: "Mr. ........: Please pay the bearer of these lines........ dollars, and charge the same to my account:" Wheatley v. Strobe, 12 Cal. 92. The following document is a negotiable bill of exchange: "July 15, 1865. On first of August next, please pay to A., or order, £600, on account of moneys advanced by me to the S. Company. To Mr. W., Official Liquidator of the Company:" Griffin v. Weatherby, Law Rep., 3 Q. B. 735. 23. "Or Order," "Or Bearer."-The words "or order," "or bearer," in notes, bills, and checks, are words of negotiability, and the use of either of them makes the paper negotiable, although impersonal words are used in place of naming a payee: Mechanics' Bank v. Steaiton, 5 Abb. Pr. (N. S.) 11. 24. "Please."-The insertion of the word "please" does not alter the character of the instrument: Wheatley v. Strobe, 12 Cal. 92. "Value re ceived" is not necessary to show a consideration: Benjamin v. Tillman, 2 McLean, 213. 25. Satisfaction of Demand.-A bill of exchange operates only as a conditional payment, but if the creditor fails to present it for payment to the drawee, it becomes pro tanto a satisfaction of the demand: Brown v. Cronise, 21 Cal. 386. 26. Who may Recover.-A bill indorsed to the treasurer of the United States may be sued and declared on in the name of the United States, and an averment that it was indorsed immediately to them is good: United States v. Barker, 1 Paine U. S. 156. Where the complaint stated the bill drawn on "B. & Co.," and to have been accepted by B. by the name and style of B. & Co., by writing the name of B. & Co., the plaintiff may recover: City Bank of Columbus v. Beach, 1 Blatchf. 438; compare Lapeyre v. Gales, 2 Cranch C. Ct. 291. No. 195. iv. The Same-On a Bill Payable to Drawer's own Order, and not Negotiated. [TITLE.] The plaintiff complains, and alleges: I. That on the. . . . . . . . day of........, 187., at the plaintiffs [under their firm name of A. B. C. & Co.], by their bill of exchange, required the defendant to pay to the order of the plaintiffs.. .. dollars, .days after date thereof [or otherwise]. A copy of which said bill of exchange is hereto attached and made part of this complaint. II. That on the......day of... ..., 187., the defendant accepted the bill. III. That he has not paid the same. [TITLE.] V. [Demand of Judgment.] No. 196. The Same-Bill Returned and Taken up. The plaintiff complains, and alleges: .. I. That on the. . . . . . . day of......., 187., at......, .., the plaintiff, by his bill of exchange, required the defendant to pay to one A. B........... .dollars, . . . . . .days after the date thereof. A copy of which bill of exchange and the acceptance thereon indorsed, is hereto attached and made part of this complaint. II. That on the......day of........, 187, 187., at..... the defendants, upon sight thereof, accepted the same for value received. III. That at maturity the same was presented for payment, but was not paid. IV. That on the........day of........, 187., the same was returned to the plaintiff for non-payment, and the plaintiff, as drawer thereof, was then and there compelled to take up the same and to pay to the holder thereof the sum of........dollars, being the amount of said bill, with damages and interest. V. That no part of the same has been repaid. [Demand of Judgment.] 27. Payable to Third Persons.-When the drawer sues on a bill pay. able to a third person, it is necessary to state that it was dishonored, taken up, and paid by the plaintiff: 2 Chitt. Pl. 148. 28. Sufficient Averment.-A complaint against the drawees of a bill, alleging that they had refused to accept, and that they had a settlement of accounts with the drawers, and that on such settlement the drawers had in their hands sufficient money to pay the bill, which they had agreed to pay, is sufficient: Mittenbeyer v. Atwood, 18 How. Pr. 330. the defendant became indebted to him for money advanced by him, and paid by him, upon a certain draft drawn by the defendant, bearing date on the ........ day 187., whereby the defendant requested the days after date, to pay to one A. B. the sum of .... plaintiff of ... ... dollars. II. That on the day of 187., at the plaintiff accepted said draft, and paid it. [Or II. That the plaintiff accepted said draft, and paid the same at maturity.] III. That at the time of the acceptance and payment of said draft, the plaintiff was without funds of the defendant in his hands to meet the same. IV. That defendant has not paid the same. [Demand of Judgment.] |