ART. 187, Sec. 11. Every person upon whom a bill of exchange is drawn, and to whom the same is delivered for acceptance, who shall destroy such bill, or refuse, within twenty-four hours after such delivery, or within such other period as the holder may allow, to return the bill, accepted or non-accepted to the holder, shall be deemed to have accepted the same.

ART. 188, Sec. 12. The rate of damages to be allowed and paid upon the usual protest for non-payment of bills of exchange, drawn or negotiated within this state, shall be as follows: 1. If such bill shall have been drawn upon any person or persons in any of the United States east of the Rocky Mountains, fifteen dollars upon the hundred upon the principal sum specified in such bill. 2. If such bill shall have been drawn upon any person or persons in any port or place in Europe or in any foreign country, twenty dollars upon the hundred upon the principal sum specified in such bill.

ART. 189, Sec. 13. Such damages shall be in lieu of interest, charges of protest, and all other charges incurred previous to and at the time of giving notice of nonpayment; but the holder of such bill shall be entitled to demand and recover lawful interest upon the aggregate amount of the principal sum specified in such bill, and of the damages thereon, from the time at which notice of protest for nonpayment shall have been given, and payment of such principal sum shall have been demanded.

ART. 190, Sec. 14. If the contents of such bill be expressed in money of account of the United States, the amount due thereon, and of the damages herein allowed for the non-payment thereof, shall be ascertained and determined without any reference to the rate of exchange existing between this state and the place on which such bill shall have been drawn at the time of the demand of payment, or of notice of non-payment.

ART. 191, Sec. 15. If the contents of such bill be expressed in the money of account, or currency of any foreign country, then the amount due, exclusive of the damages payable thereon, shall be ascertained and determined by the rate of exchange, or the value of such foreign currency at the time of the demand of payment.

ART. 192, Sec. 16. Where a bill of exchange shall be protested for non-acceptance, the same rate of damages shall be allowed on the protest for non-acceptance as provided in the last four sections, and shall be in lieu of interest, charges of protest, and all other charges incurred previous to and at the time of giving notice of non-acceptance; but the holder shall be entitled to recover interest upon the aggregate amount of the principal sum specified in the bill, and of the damages thereon, from the time at which notice of protest for non-acceptance shall have been given.

ART. 193, Sec. 17. The damages allowed by this act shall be recovered only by the holder of the bill, who shall have purchased the same, or some interest therein, for a valuable consideration.

ART. 194, Sec. 18. In all cases where a notice of non-acceptance of a bill of exchange, or non-payment of a bill of exchange, promissory note, or other negotiable instrument may be given, by sending the same by mail, it shall be sufficient if such notice be directed to the city or town where the person sought to be charged by such notice resided at the time of drawing, making or indorsing such bill of exchange, promissory note, or other negotiable instrument, unless such person, at the time of affixing his signature to such bill, note or other negotiable instrument shall, in addition thereto, specify thereon the post-office to which he may require the notice to be addressed.

ART. 195, Sec. 19. Nothing in this act shall apply to bills of exchange, promissory notes or other negotiable instrument made or drawn before this act takes effect. Act of April 2, 1851, designating the Holidays to be observed in the Acceptance and Payment of Bills of Exchange and Promissory Notes.

ART. 196, Sec. 1. The following days, namely: the first day of January, the

fourth day of July, the twenty-fifth day of December, commonly called Christmas day, shall, for all purposes whatsoever as regards the presenting for payment or acceptance, and of the protesting and giving notice of the dishonor of bills of exchange, checks and promissory notes, made after the passage of this act, be treated and considered as is the first day of the week, usually called Sunday. Three days, commonly called days of grace, shall be allowed, except on sight bills or drafts; and any one of the holidays specified in this act coming within the three days of grace, shall be counted as one of such days.

See Revenue.

JUDICIAL DECISIONS.

1. It is no defense to a suit on a negotiable bill of exchange, that the suit is brought in the name of a mere agent or stranger. Lineker v. Ayeshford, 1 Cal. 75.

2. Nor is it, of itself, any defense to a suit on a negotiable bill of exchange, that the suit is brought in the name of a fictitious person. Id.

3. Notes given for a gaming consideration are valid in the hands of a bona fide indorsee. Haight v. Joyce, 2 Cal. 64.

4. Want of, or illegality of consideration, between the original parties, does not render a bill or note void in the hands of a bona fide indorsee, unless such bill or note be declared void by express statute. Id.

5. It is error, to allow a claim, the only evidence of which is a check drawn in favor of plaintiff by defendant. Headley v. Reed, 2 Cal. 322.

6. The legal presumption is that a check is drawn for money due from the drawer to the payee. Id.

7. One who puts his name upon a promissory note out of the usual course of regular negotiability, is not an indorser. He is a guarantor. Riggs v. Waldo, 2 Cal. 485.

8. The contract-the promissory note-imports a consideration; each one who writes his name upon it is a party to it, and each party an original undertaker. Id.

9. The liability of an indorser is a guaranty that he will pay, if the maker does not, upon presentment, if he receive due notice. The liability of the guarantor is the same as of the indorser, and he is entitled to all his rights stricti juris. Id.

10. A promissory note, made before the act of 1851, (which makes the fourth of July a non-juridical day,) fell due July first, and was payable on the fourth. Held that notice of non-payment on the third was premature, and ineffectual to charge the indorser. Toothaker v. Cornwall, 3 Cal. 144.

11. A payee has all of the last day on which his note falls due, to pay it, and a suit commenced for its recovery on that day is premature. Witcombe v. Dodge, 3 Cal. 260.

12. Modern decisions have placed ordinary checks, i, e. payable at sight, and bills of exchange, on the same footing, excepting the difference which may arise from the custom of merchants. Minturn e. Fisher, 4 Cal. 35. 13. The second of a foreign bill of exchange, drawn here, payable at sight, was presented to the drawee, and payment being refused, was duly protested. Afterwards, and before suit was brought, the first of exchange was paid to the holder, with interest and cost of protest. Held, the drawer was released from payment of damages for the dishonor of the second of exchange. Page, Bacon & Co. v. Warner, 4 Cal. 395.

14. Sight checks are sight bills, and by our statute are not entitled to grace. But an order in the nature of a check payable at a future day is an inland bill of exchange, and the drawer is entitled to three days' grace, and notice of non-payment. In such a case presentation before the last day of grace, and the immediate commencement of suit on the day of demand and non-payment, are premature. Id.

15. Where notes are indorsed after maturity, they are subject to the same defenses as if in the hands of the indorser. Folsom v. Bartlett, 2 Cal. 163; Vinton v. Crowe, 4 Cal. 309.

16. A note indorsed before delivery to the payee is prima facie an accommodation indorsement. Clark v. Smith, 2 Cal. 605.

17. No right of action can accrue in favor of the drawee against the drawer of a draft, until it is paid. Wakeman v. Vanderbilt, 3 Cal. 380.

18. Notes payable in bank. Toothaker v. Cornwall, 4 Cal. 28.

19. It is not material on what part of a note a secondary promissor places his name, if the character of his liability is made to appear his rights are the same as those of indorser. Bryan v. Berry, Oct. T. 1856.

20. It is not so much the position of the party's name upon the paper which denotes his liability, (although it frequently does so,) but it is the intention with which he executes it, if such intention is made to appear by the note itself, which determines whether his liability is primary or secondary. Id.

21. Notice of demand and non-payment should be served personally upon the defendant, residing in the same city where the note was held, and service through the post-office was not effectual to charge him. Vance v. Collins, Oct. T. 1856.

22. The maker of a note, after judgment by default, is a competent witness for the indorser. Id.

23. If the defendant indorsed his name under the words "holden on the within note," he was an indorser entitled to notice of demand and non-payment. Id.

24. A note drawn with the rate of interest left blank cannot be filled up by the payee at his option, without showing the consent of the maker. If, however, it has passed into the hands of an innocent holder, it would bind the maker for the principal and interest, as expressed on its face. Fisher v. Dennis, Oct. T. 1856. 25. The assignment of a promissory note carries with it the mortgage given to secure it. Phelan v. Olney, Oct. T. 1856.

26. At common law promissory notes were not protestable securities; they are made so by our act, and, as a consequence, the protest of them must be attended with all the incidents belonging to foreign bills of exchange. Tevis v. Randall, Oct. T. 1856.

27. Pledge to secure the payment of notes. St. Losky r. Davidson & Co. Oct. T. 1856.

28. Where a place of payment is named in a bill of exchange or promissory note, it is necessary to allege and prove a demand at the place specified. Wild v. Van Valkenburgh, Jan. T. 1857.

29. Certificates of deposit have all the important incidents of promissory notes, and are alike negotiable. Welton v. Adams, 4 Cal. 37.

30. Where a bill shows upon its face that the party making it is acting for another, and is signed by him as agent, the agent is not personally liable. Sayre v. Nicholls, April T. 1857.

31. Where the drawer of a bill is teller in the house on which it is drawn, and informs the holder before maturity that it will not be paid, this fact excuses presentment and notice at maturity. Minturn v. Fisher, April T. 1857.

Special indorsement-Grogan v. Ruckle, 1 Cal. 158. Dependent promises-Osborne v. Elliott, 1 Cal. 337. Consideration-Fisher v. Salmon, 1 Cal. 413; Thorne e. Yontz, 4 Cal. 321. Payment, etc.-Lambert v. Slade, 3 Cal. 330; Van Norden v. Buckley, 5 Cal. 283. Partnership-Rich v. Davis, 4 Cal. 22. Declaration-Lightstone v.

Lawrence, 4 Cal. 277. Notice, etc.-Stoughton v. Swan, 4 Cal. 213; Orlendorff v. Swartz, 5 Cal. 480; Tevis v. Wood, 5 Cal. 393. Guarantor-Pierce v. Kenedy, 5 Cal. 138. Alteration, etc.-Humphreys v. Crane, 5 Cal. 173. Cancellation, etc.-Cole v. Wilson, April T. 1855. Protestability and seal-Connolly v. Goodwin, 5 Cal. 220. Presentation-Ritchie v. Bradshaw, 5 Cal. 228. Holder-Palmer v. Goodwin, 5 Cal. 458. Loss of note-Price v. Dunlap, 5 Cal. 483. Evidence-Gatliff v. Cram & Co. Oct. T. 1856. Coverture-Simpers v. Sloan, 5 Cal. 457.

208. Penalty for entering on duties of office without 223. Additional bond not to discharge the original. filing bond.

209. Officers with whom bonds are filed to record the

same, and give certified copies.

210. Form of bond.

211. Obligatory force of bond.

212. Same.

213. Same.

214. Suit on bond not void on first recovery. 215. Substantial defects not to invalidate. 216. Certified copy to be evidence.

217. Act to apply to bonds of office hereafter created. 218. When county officer to be required to execute additional bond.

219. Same.

220. Proceedings to require state officer to file additional bond.

224. Action may be brought on either or both of such bonds.

225. Judgments on both bonds.

226. Contribution of sureties.

227. Discharge of sureties, how effected.

228. Number of sureties required.

229. Bond of appointee to fill vacancy.

230. Proceedings when bond is insufficient.
231. How sureties may be relieved.
232. Liability of sureties.

233. Act applicable to executors, administrators, etc.
234. Duty of officers approving bonds.

235. Apportionment of liability among sureties.
236. Bonds of trustees, etc., how given and prose-
cuted.

237. Bonds of justices of peace in first district.

I. BONDS, DUE BILLS, ETC.

Act of April 20, 1850, relative to Bonds, Due Bills and other Instruments in writing. ARTICLE 197, Sec. 1. That all bonds, due bills, and other instruments of writing, not negotiable, hereafter made by any person, body politic or corporate, whereby such person promises or agrees to pay any sum or sums of money, or articles of personal property, or any sum of money in personal property, or acknowledges any sum of money, or articles of personal property, to be due to any other person, shall be taken to be due and payable, and the sum of money or articles of personal property therein mentioned, shall, by virtue thereof, be due and payable to the person to whom the said bond, bill, or other instrument in writing is made. ART. 198, Sec. 2. Any such bond, due bill, note, or other instrument in writing, not negotiable, made payable to any person, shall be assignable by indorsement thereon under the hand of such person and of his assignee, in the same manner as bills of exchange are, so as absolutely to transfer and vest the property thereof in each and every assignee successively.

ART. 199, Sec. 3. Any assignee to whom such sum of money, or personal property, is by such indorsement made payable, or in case of the death of such assignee, his heirs, executors, or administrators, may in his own name institute and maintain the same kind of action for the recovery thereof, against the person who made and executed any such note, bond, bill, or other instrument in writing, or against his heirs, executors, or administrators, as might have been maintained

against him, by the obligee or payee, in case the same had not been assigned; and in every such action, in which judgment shall be given for the plaintiff, he shall recover his damages and costs of suit, as in other cases; provided, that the maker or obligor shall be allowed to set up in defense to the action of the assignee, any matter which he might have set up to the action of the payee, or obligee, where the same has arisen previous to notice of the assignment, but not otherwise.

ART. 200, Sec. 4. Every assignor, his heirs, executors, or administrators, of every such note, bond, bill, or other instrument in writing, shall be liable to the action of the assignee thereof, his executors or administrators, if such assignee shall have used due diligence by the institution and prosecution of a suit against the maker of such note, bond, bill, or other instrument in writing, or against his heirs, executors, or administrators, for the recovery of the money or property due thereon, or damages in lieu thereof; provided, that if the institution of such suit would have been unavailing, or that the maker had absconded, or left the state, where such assigned note, bond, bill, or other instrument in writing, became due, or within twenty days thereafter, such assignee, his executors or administrators, may recover against the assignor, or his heirs, executors or administrators, as if due diligence by suit had been used. By "due diligence" shall be understood the institution of suit within sixty days after the maturity of the obligation.

ART. 201, Sec. 5. In any action which may hereafter be commenced in any court in this state, upon any of the instruments in writing mentioned in this act, by the obligee or payee thereof, if any of such instruments was made or entered into without a good and valuable consideration, or if the consideration upon which any of such instruments was made or entered into, has wholly or in part failed, it shall be lawful for the defendant, against whom such action shall have been commenced by such obligee or payee, to plead such want of consideration; or that the consideration has wholly or in part failed; and if it shall appear that any of the aforesaid instruments was made or entered into without a good or valuable consideration, or that the consideration has wholly failed, the verdict shall be for the defendant; and if it shall appear that the consideration has failed in part, the plaintiff shall recover according to the equity of the case.

ART. 202, Sec. 6. If any fraud or circumvention be used in obtaining the making or executing of any of the instruments aforesaid, such fraud or circumvention may be plead in bar, to any action to be brought on any such instrument so obtained, whether such action be brought by the party committing such fraud or circumvention, or any assignee of such instrument.

ART. 203, Sec. 7. In all cases where any of the before-mentioned instruments of writing are for the payment or delivery of personal property, other than money, and no particular place be specified in such instrument of writing, for the payment or delivery thereof it shall be lawful for the maker of any such instrument of writing to tender, or cause to be tendered, on the day mentioned in any such instrument, the personal property therein mentioned, at the place where the obligee or payee of any such instrument resided at the time of the execution thereof: provided, however, if such property be too ponderous to be easily moved, or if the obligee or payee of such instrument had not, at the time of the execution of such instrument of writing, a known place of residence in the county where the maker resided, then it shall be lawful to tender such personal property at the place where the maker of such instrument resided at the time of the execution thereof. Any tender made in pursuance of this section, shall be equally valid and legal, in case any such instrument of writing shall have been assigned in pursuance of the first section of this act, as if no such assignment had been made.

ART. 204, Sec. 8. A legal tender of any such personal property, shall discharge the maker of any such instrument from all liability thereon; and the property

thus tendered is here declared to be vested in, and belong to, the legal holder and owner of any such instrument of writing, and he may maintain an action for the recovery thereof, or for damages, if the possession be subsequently illegally withheld from him; provided, however, if any such property, so tendered, shall be of a perishable nature, or shall require feeding, or other sustentation, and the person owning and holding any such instrument of writing, be absent at the time of tendering the same, it shall be lawful for every person making such tender to preserve, feed, or otherwise take care of the same; and he shall have a lien on such tendered property, for his reasonable trouble and expense of preserving, feeding, or sustaining such property, until payment be made for such trouble and expense.

ART. 205, Sec. 1. The official bonds of officers shall be approved and filed as follows, to wit: The official bond of the secretary of state shall be approved by the governor, and filed and recorded in the office of the county clerk of the county in which the seat of government is fixed; the official bond of the attor ney-general, surveyor-general, controller, treasurer, state printer, and clerk of the supreme court, shall be approved by the governor, filed and recorded in the office of the secretary of state; the official bond of each district attorney shall be approved by the judge of the district, filed and recorded in the office of the county clerk of any one of the counties in the district which may be designated by said judge; the official bonds of sheriffs, coroners, justices of the peace, and all other county officers, shall be approved by the county judge, filed and recorded in the office of the county clerk of their respective counties; the official bonds of county clerks shall be approved by the county judge and filed and recorded in the office of the county recorder.

ART. 206, Sec. 2. The approval of every official bond shall be indorsed thereon, and signed by the court or officer approving the same.

per

ART. 207, Sec. 3. No officer with whom any official bond is required to be filed, shall file and take charge of such bond until approved as prescribed by law. ART. 208, Sec. 4. If any person, elected or appointed to any office, shall form any of the duties thereof without having executed and filed in the proper office any bond required of him by law, he shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be fined in a sum not exceeding one thousand dollars, and his office be declared vacant.

ART. 209, Sec. 5. It shall be the duty of every officer, with whom said bonds shall be filed, carefully to record, keep and preserve the same, and give certified copies thereof, sealed with the seal of his office, to any person demanding the same, upon being paid the same fees as are allowed by law for certified copies of papers in other cases.

ART. 210, Sec. 6. All official bonds, required by law, of officers, shall be in form, joint and several, and made payable to the state of California, in such penalty, and with such conditions as shall be required by law.

ART. 211, Sec. 7. Every official bond executed by any officer pursuant to law, shall be deemed and taken to be in force, and obligatory upon the principal and sureties therein, for any and all breaches of the condition or conditions thereof, committed during the time such officer shall continue to discharge any of the duties of, or hold, such office.

ART. 212, Sec. 8. Every such bond shall be deemed to be in force, and obligatory upon the principal and sureties therein, for the faithful discharge of all duties which may be required of such officer by any law enacted subsequently to the execution of such bond, and such condition shall be expressed therein.

ART. 213, Sec. 9. Every official bond, executed by any officer pursuant to law, shall be in force, and obligatory upon the principal and sureties therein, to and