No. 198. vii. The Same-By a Co-partnership Firm against another Firm, on a Draft Accepted and Paid by Plaintiffs. [TITLE.] The plaintiffs complain, and allege: I. That on the ...... day of 187., the defend ants, then composing the firm of C. D. & Co., drew their certain bill of exchange, in said co-partnership name, at .... and directed the same to the plaintiffs at who then were and now are copartners, doing business under the firm name of A. B. & Co., by which bill of exchange the said defendants requested the plaintiffs to pay to the order of said defendants, four months after date, the sum of .. dollars, for value received. II. That said bill of exchange the plaintiffs afterwards accepted, and paid in full. III. That no funds were provided by said defendants, either before or after the same was drawn as aforesaid for the payment thereof, and the plaintiffs have had no funds. of said defendants at any time in their hands to pay the the defendant, by his bill of exchange, required one C. D. to pay to the plaintiff 187., at dollars [...... 187., the same was duly presented to the said C. D. for acceptance, but was not accepted. III. That due notice thereof was given to the defendant. IV. That he has not paid the same. 187., at [Demand of Judgment.] ... ......... 29. Allegation Setting out Copy of Bill. That on the ...... day of the defendants made and delivered to the plaintiff their bill of exchange, of which the following is a copy [copy of bill]. 30. Allegation of Demand and Notice Excused by Waiver.That the defendant at the time said bill was transferred by bim, waived as well the presentation of the same to said .......... for payment, as notice of the non-payment thereof. ...... ............ Bill Counter 31. Allegation of Excuse for Non-Presentment manded. That on or about the day of 187., said bill not then having been presented for acceptance [or for payment], the defendant countermanded the same by instructions to the said [drawee] not to accept or pay [or, if payable at sight, not to pay] the same; wherefore it was not presented. 32. Allegation of Excuse for Non-Presentment - Drawee not Found. That on the, etc.. due search and inquiry was made for said............... at [state the place of address], that the same might be presented for acceptance, but he could not be found, and the same was not accepted. .... ....... 33. Averment of Protest.-That said bill was duly protested at maturity, is sufficient to admit evidence of demand, neglect to pay, and notice of non-payment: Woodbury v. Sackrider, 2 Abb. Pr. 405. The holder of a bill, upon protest for non-acceptance, has an immediate cause of action against the drawer, and averments of demand of payment and protest might be rejected if the declaration counted properly for non-acceptance: Mason v. Franklin, 3 Johns. 202. 34. Necessary Averments.—In a complaint against the drawer of a bank check, or of a bill of exchange properly so called, it is necessary to aver either demand, and notice to the drawer of non-payment, or such facts as excuse demand and notice, e. g., want of funds at bank: Shultz v. Dupuy, 3 Abb. Pr. 252. .1 L No. 200. ix. The Same-Form of Allegation where Bill was Payable at a Specific Date. The plaintiff complains, and alleges: 187., at the defendant made and delivered to the plaintiff his bill of exchange, directed to E. F., and required said E. F. to pay to the plaintiff ...... dollars, on the .... day of........................, 187. [or at sight, or ... ... days after date thereof, or after sight thereof], for value received. II. That the same was presented to E. F. for payment, but was not paid. III. [If a foreign bill.] That the same was duly protested for non-payment. IV. That notice thereof was given to the defendant. [Demand of Judgment.] No. 201. x. By Partners Payees against Partners Acceptors. [TITLE.] A. B. and C. D., the plaintiffs in the above-entitled action, complain of E. F. and G. H., the defendants, and allege: I. That at the times hereinafter mentioned, the said plaintiffs were partners, doing business at .. under under the firm name of "A. B. & Co.," and the said defendants were partners, doing business at the firm name of "E. F. & Co." II. That on the.... day 187., at L. M. and N. O., partners, doing business under the firm name of "L. M. & Co.," under their said firm name, made their certain bill of exchange in writing, payable in gold coin of the United States, directed to the defendants, under their said firm name of "E. F. & Co.," bearing date on that day, in the words and figures following, to wit [copy of bill]. ........ III. That on the .... day of .. 187., at... the said defendants, under their said firm name of "E. F. & Co.," upon sight thereof, accepted said bill of exchange. IV. That they have not paid the same. [Demand of Judgment.] 35. Acceptance.--It is not necessary to copy the acceptance, nor even to aver that it was in writing. It is enough to aver its acceptance: Horner v. Wood, 15 Barb. 371; Bank of Lowville v. Edwards, 11 How. Pr. 216; Fowler v. N. Y. Indem. Ins. Co., 23 Barb. 150; Gibbs v. Nash, 4 Barb. 449; Washburn v. Franklin, 28 Id. 27; 7 Abb. Pr. 8; and see dicta, contra, Thurman v. Stevens, 2 Duer, 609; Le Roy v. Shaw, 2 Duer, 628; Merwin v. Hamilton, 6 Duer, 248; as the acceptance of a bill of exchange must be in writing: Civil Code Cal., secs. 3193, 3194; Wheatley v. Strobe, 12 Cal. 92. Where a draft is accepted conditionally to be paid upon the happening of a contingency, the question whether it has happened is a question of fact: Nagle v. Homer, 8 Cal. 353. 36. Copy of Bill.-The holder must sue on that one of the set which was dishonored: Downes v. Church, 13 Pet. 205; Wells v. Whitehead, 15 Wend. 527. Where a second of exchange was dishonored, and the first was subsequently paid previous to suit brought, the drawer was released from damages for the dishonor: Page v. Warner, 4 Cal. 395. 37. Drafts on Appropriation.-A draft payable in terms out of an "appropriation," for work done by the acceptor, becomes due on payment for the work by government: Nagle v. Ilomer, 8 Cal. 353. 38. Gold Coin. -Under the statute of California, if the written instrument provided for payment in gold coin, the complaint and demand for judgment should be for gold coin, and judgment will thereupon be entered up accordingly. 39. Non-Acceptance, Effect of. The want of acceptance does not affect the right of the payee, only as to his mode of enforcing payment: Wheatley v. Strobe, 12 Cal. 92. 40. Notice.-Notice may be given to the indorser, or others entitled to notice, immediately after presentment to the maker or acceptor, and the refusal of the same to pay: McFarland v. Pico, 8 Cal. 626. Any notice is sufficient, if it informs the party of the fact: Id.; see Minturn v. Fisher, 7 Cal. 573. 41. Part Payment. Where the drawee pays a part of the draft, and receipts on the back of the order the amount paid, and it is signed by the payee, it is not an acceptance: Bassett v. Haines, 9 Cal. 260. It is evidence that the drawee owed that amount and paid it: Id. The acceptance of a note of a third party by the creditor, is accompanied with the condition that the note shall be paid at maturity: Griffith v. Grogan, 12 Cal. 317. 42. Presentment. In an action against the maker of a note, or the acceptor of a bill of exchange, in which the place of payment is fixed, it is not necessary to aver presentment at that place and refusal to pay: Montgomery v. Tutt, 11 Cal. 307. Case in which the evidence shows sufficient diligence in presenting draft for payment: 50 Id. 162. [TITLE.] No. 202. xi. Payee against Acceptor-Short Form. The plaintiff complains, and alleges: I. That on the ...... day of... fendant accepted a bill of exchange made [or purporting to have been made] by one C. D., on the .... 187., at to pay to the plaintiff 187.. the de day of 48. after requiring the defendant dollars, sight thereof. A copy of said bill of exchange is hereto at- [Demand of Judgment.] ...... 43. Allegation, Setting out Copy of Bill.-—That on the ................ day of ..........., 187., at the defendant A. B. accepted and delivered to the plaintiff a bill of exchange, of which the following is a copy [copy bill and acceptance]: Andrews v. Astor Bank, 2 Duer, 629; Levy v. Ley, 6 Abb. Pr. 89. 44. Corporation. -Where defendant is a corporation, and the bill is accepted by the president thereof as such, an averment that he was president, and as such authorized to accept, is not necessary: Partridge v. Bader, 25 Barb. 146; Andrews v. Astor Bank, 2 Duer, 629; Price v. McClare, 6 Id. 544. 45. Costs of Protest.-A claim for statutory damages and costs of protest, need not be set forth in the petition as a separate and distinct cause of action, disconnected from the claim on the bill: Summit Co. Bank v. Smith, 1 Handy, 575. No. 203. xii. The Same-Pleading the Legal Effect. [TITLE.] The plaintiff complains, and alleges: I. That on the .... day of ....... 187., at one A. B., by his bill of exchange, in writing, dated on that day, required the defendants to pay to the order of the plaintiff .. days after said date [or otherwise], for value received. dollars, II. That on the ...... day of .... 187., at ......... the defendant upon sight thereof, accepted said bill, of which, and the acceptance thereof, the following is a copy [copy the bill]. III. That he has not paid the same. [Demand of Judgment.] 46. Consideration on Acceptance.-A written agreement to accept amounts to an acceptance, and no consideration need be shown: Ontario Bk. Worthington, 12 Wend. 593. 47. Party in Interest.-In an action on a draft, brought by the Camden Bank against the drawer, after showing that the draft was made payable "to the order of W. B. Storm, cashier," an averment that the defendant "delivered the said draft to W. B. Storm, cashier of said Camden Bank, for the said bank," and that "the said draft is now held and owned by the said plaintiffs, and still remains due to them from the defendants," sufficiently shows that the bank, and not the cashier, is the real party in interest: Camden Bank v. Rodgers, 4 How. Pr. 63. 48. Presentment.-Against the acceptor, it is not necessary to aver or prove presentment at the place where the bill was made payable: Wolcott v. Van Santvoord, 17 Johns. 248; Caldwell v. Cassidy, 8 Cow. 271; Haxton v. Bishop, 3 Wend. 13. 49. Promise to Accept.-In an action brought upon a promise made by the defendant to accept a draft which another might draw on him, it is not necessary to aver that the promise was in writing: Wakefield v. Greenhood, 29 Cal. 597; Bank of Lowville v. Edwards, 11 How. Pr. 216. No. 204. xiii. The Same-Acceptance Varying as to Time from the Bill. ..., 187., at. ........ I. [Allege making of bill as in preceding form.] II. That on the..... day of.... the defendant [or the defendants under their firm name], upon sight thereof, accepted the same, payable at. . . . . . . . days [or otherwise] after the date of said bill [or after said |