Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

No. 214.

xxiii. Subsequent Indorsee against First Indorser-Indorsement Special.

[TITLE.]

The plaintiff complains, and alleges:

I. That the defendant indorsed to one C. D. a bill of ex

change, made by one A. B., on the .... day of

187., at

the defendant

requiring E. F. to pay to the order of .... dollars,

day after sight thereof [or otherwise], and accepted by the said E. F. on

[blocks in formation]

187., at

[ocr errors]

II. That the same was by the indorsement of the said C. D., transferred to the plaintiff.

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

the same was presented to the said E. F. for payment, but it was not paid.

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

[Demand of Judgment.]

No. 215.

xxiv. Subsequent Indorsee against Intermediate Indorser.

[TITLE.]

The plaintiff complains, and alleges:

I. That a bill of exchange made by one A. B. on the ....

day of

[ocr errors]

'187., at ..

[ocr errors]

requiring one C. D.

to pay to the order of one E. F., ........ dollars, days after sight thereof [or otherwise], [accepted by said C. D. ], and indorsed by the said E. F. to the defendant, was, by the indorsement of the defendant [and others], transferred to the plaintiff.

[Allege presentment, notice, and non-payment as in Form 210.]

[Demand of Judgment.]

No. 216.

XXV. Subsequent Indorsee against Last Indorser.

[TITLE.]

The plaintiff complains, and alleges:

I. That the defendant indorsed to him a bill of exchange, made [or purporting to have been made] by one A. B., on

the ... day of

187., at

requiring

dol

one C. D. to pay to the order of one E. F.,. .
lars,
days after sight thereof [or otherwise], [ac-
cepted by the said C. D.], and indorsed by the said E. F.
to the defendant.

II. That on the......day of......, 187
187., at....
at....., the
same was presented to the said C. D. for payment, but it
was not paid.

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

[Demand of Judgment.]

No. 217.

xxvi. Subsequent Indorsee against all Prior Parties—Short Form,
[TITLE.]

The plaintiff complains, and alleges:

......

I. That on the . . . . . . day of ........, 187., at ... the defendant A. B., by his bill of exchange, required the defendant C. D. to pay to the order of the defendant E. F., .dollars, .... .days after sight thereof.

......

II. That on the.......day of........

C. D. accepted the same.

187., the said

III. That the said E. F. indorsed the same to the

plaintiff.

......"

IV. That on the......day of 187., the same was presented to the said C. D. for payment, but was not paid. V. That due notice thereof was given to the 'other defendants, and each of them.

VI. That they have not, nor has either of them, paid the

same.

[Demand of Judgment.]

No. 218.

xxvii. The Same by a Bank in its Corporate Name.

[STATE AND COUNTY.]

THE BANK OF.

against

[COURT.]

A. B., C. D., and E. F.

The plaintiff, a corporation, duly organized and incorporated under the laws of the State of......, complains, and alleges [allegations same as in last form].

[Demand of Judgment.]

[ocr errors][merged small][merged small]

No. 219.

[TITLE.]

xxviii. Checks-Payee against Drawer.

The plaintiff complains, and alleges:

I. That at the times hereinafter mentioned, the said defendants were partners, doing business as merchants at under the firm name of C. D. & Co.

II. That on the. . . . . . day of........, 187., at........... the defendants, under their said firm name of C. D. & Co., made their check in writing, dated on that day, payable to the order of the plaintiff, which said check is in the words and figures following, to wit [copy of check].

III. That the said check was presented on the......day of......., 187., to the said....... for payment, but was

not paid.

IV. That due notice thereof was given to the defendants. V. That they have not paid the same.

[Demand of Judgment.]

55. After Dishonor.-A party taking a check after presentment and dishonor, takes it subject to all the equities to which it was subject in the hands of the original holder: Fuller v. Hutchings, 10 Cal. 523; but see 40 Cal. 511. When the holder of a note accepts a draft or check in payment, he is not bound to give up the note before payment of the draft or check: Smith v. Harper, 5 Cal. 330. The surrender of the note is prima facie evidence of its payment: Id.

56. Checks.-Checks are on the same footing as bills of exchange, excepting the difference which may arise from the custom of merchants: Minturn v. Fisher, 4 Cal. 35. The legal presumption is that a check is drawn for money due from the drawer: Headley v. Reed, 2 Cal. 322.

57. Consideration.—The presumption is that the check was given on a valid consideration, but this presumption being rebutted, plaintiff must prove that he received it in good faith, and without notice of the illegality of the consideration: Fuller v. Hutchings, 10 Cal. 523.

58. Consideration Void.-A check given for a gaming debt is void in the hands of all persons, except a bona fide holder without notice: Fuller v. Hutchings, 10 Cal. 523.

59. Grace. In California days of grace are not allowed: Civil Code, sec. 3181.

60. Lost Paper.-Where a check had been lost and paid by the banker upon a forged indorsement, in a suit for the same where the banker refused to deliver the check to the owner, in the absence of rebutting testimony, the measure of damages is the full amount for which it was drawn: Survey v. Wells, Fargo Co., 5 Cal. 124.

61. Non-Negotiable Draft.-A non-negotiable draft, rendered so by the absence of any fixed amount, may be rendered negotiable by an indorse

ment, "balance due......dollars," and signed by indorser, who is estopped thereby from setting up against it any antecedent matter, and is liable for the full amount: Garwood v. Simpson, 8 Cal. 101. No right of action can accrue upon a draft till payment: Wakeman v. Vanderbilt, 3 Cal. 380.

62. Notice. In general, presentment and notice of non-payment are necessary to charge the drawer of a check: Harker v. Anderson, 21 Wend. 372; Shultz v. Dupuy, 3 Abb. Pr. 252; but compare Cruger v. Armstrong, 3 Johns. Cas. 5; Conroy v. Warren, Id. 259.

63. Presentment.-As against the drawer, presentment at any time before suit brought is sufficient, unless it appear that he has been prejudiced by unreasonable delay: Little v. Phœnix Bank, 2 Hill, 425; Harbeck v. Craft, 4 Duer, 122. By the law merchant, it is sufficient if a check drawn upon one day be presented for payment in the usual banking hours on the next succeeding day: Ritchie v. Bradshaw, 5 Cal. 228. The payee, to hold the drawer, is bound to use reasonable diligence: Id.

64. Payment Stopped.—The complaint alleged demand, refusal, and notice to defendants of non-payment, and also that before the demand the defendant had stopped its payment by notice to the officers of the bank not to pay it. The answer denied that the defendants had notice of the nonpayment, and alleged that they stopped its payment because it was obtained from them by fraud, of which, as well as of its payment having been stopped, the plaintiffs had notice before they took the check: Held, that the allegation in the complaint, of notice to the defendants of non-payment, might be disregarded as surplusage; and the plaintiffs should be allowed to prove, under the pleadings, the fact that payment had been stopped. That excused the want of notice: Purchase v. Mattison, 6 Duer, 587.

65. To Bearer.-A check payable to the order of a fictitious person, e. g., of a firm long since dissolved (Stevens v. Strang, 2 Sandf. 138), or "to the order of bills payable" (Willets v. Phoenix Bank, 2 Duer, 121), is to be deemed payable to bearer, if negotiated by the maker.

66. When Due.-When no time of payment is mentioned, the check or note is payable immediately, and complaint should not state a time of payment: Herrick v. Bennett, 8 Johns. 374; Pearsol v. Frazer, 14 Barb. 564; Thompson v. Ketchum, 8 Johns. 189.

No. 220.

xxix. Indorsee or Bearer of Check, against Drawer.

[TITLE.]

The plaintiff complains, and alleges:

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

187., at.

the defendant made his check in writing, dated on that day, and directed the same to the bank of A. B., requiring said bank to pay to one C. D., or order [or bearer],

dollars for value received.

II. That the defendant then and there indorsed the same

to this plaintiff.

III. That on the

.... day of.

........

187., at

the same was presented to said bank of A. B. for payment, but was not paid.

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

[Demand of Judgment.]

67. Allegation of Excuse for Failure to Give Notice. That on the day of...... 187., the same was presented to said [drawee] for payment, but the defendant had no funds with said drawee.

......

..........

68. Allegation of Excuse-Want of Funds.-Want of funds in the drawee's hands excuses the omission to give notice of non-payment. As to whether it excuses non-presentment, see Cruger v. Armstrong, 3 Johns. Cas. 5; Id. 259; Fitch v. Redding, 4 Sandf. 130; Franklin v. Vanderpool, 1 Hall, 78. But where it is intended to rely upon want of funds as excusing demand or notice, that fact must be averred: Shultz v. Dupuy, 3 Abb. Pr. 252; Garvey v. Fowler, 4 Sandf. 665; Franklin v. Vanderpool, 1 Hall, 78.

69. Allegation of Excuse from Insolvency of Drawee.-That on the ...day of........, 187., at....... said [drawee] was insolvent [or had stopped payment].

70. Time. The time should be stated, that it may appear whether it was such as to excuse the holder from a demand: 1 Chitt. Pl. 289. One who takes a check, which by its date appears to have been outstanding for two years and a half, and which has "Mem." written on its face, must bear the loss arising from his taking it without inquiry: Skillman v. Titus, 3 Vroom, 96.

71. Was Insolvent.-As against drawer, these facts dispense with presentment and notice: Lovett v. Cornwell, 6 Wend. 369.

No. 221.

XXX. Indorsee or Bearer, against Drawer and Indorser. [TITLE.]

The plaintiff complains, and alleges:

......

187., at....

the

I. That on the....day of.... defendant, A. B., made his check, and directed the same to the bank of C. D., and thereby required said C. D. to pay to the defendant, E. F., or order [or bearer], .....dol

lars, for value received, and delivered it to the defendant, E. F.

II. That thereupon said defendant, E. F., indorsed the same to this plainiff for value.

III. That said check was duly presented for payment, but was not paid.

IV. That due notice thereof was given to the defendants. V. That they have not paid the same.

[Demand of Judgment.]

« ΠροηγούμενηΣυνέχεια »