A bill or note is not confined to any set form of words. A promise to deliver, or to be accountable, or to be responsible for so much money, is a good bill or note; but it must be exclusively and absolutely for the payment of money, and should be without condition or contingency.

The words "value received" are not essential, and may be omitted, but it is usual to insert them, as banks do not in some places consider paper negotiable without them. The legal effect of the note is the same in either case.'

Any thing valuable is a good consideration for the promise. An endorsement payable to order on a note or bond is a bill of exchange.

The date should be carefully expressed, although, if it were omitted, the paper would be considered to bear date from the time it was made and delivered.

Bills of exchange are called foreign when drawn upon a party and place out of this state, and inland when between parties within the state.

Checks upon a banker partake of the character of inland bills of exchange.'

What are commonly called drafts, orders, and acceptances upon other persons for the payment of money, are in general inland bills of exchange.

Due bills and certificates of deposit are considered in the character of promissory notes."

When the instrument is not drawn or made to order, or to bearer, but to A. B., or is not for the payment of money but for goods, it is binding between the parties and is assignable, but is not a negotiable note except to the following extent:

By the statute of California, bonds, due bills, notes, and other instruments of writing, by which a person promises to pay money or goods to another, although not negotiable, may be assigned by endorsement in the same manner as bills of exchange; but if suit be brought thereon by the holder, the maker can set up in defence, any good offset he may have against the payee, that existed before he received notice of the assignment.*

The endorser of such paper, is only liable, provided the holder

1 8 Cal. 288.

28 Kent, 75.

4 Cal. 137.

Wood's Dig. art. 198, 199,

has brought suit against the maker within sixty days, except where suit would have been unavailing, or the maker has absconded.'

When a bill is drawn payable on demand, or at a certain period, say ten days after sight, it 'should be presented to the party upon whom it is drawn as promptly as may be convenient, for acceptance, that the day of payment may be determined. If accepted, the acceptor should write the acceptance on the face of the bill. The holder should then present the bill for payment, at the end of the time allotted, with the days of grace added, which in the case supposed would be thirteen days; or if on demand, it would be at the end of the days of grace-three days.

If acceptance be refused, the bill should be protested for nonacceptance, and notice should be given to the drawer in order to hold him liable. If it be accepted, but not paid at the proper time, the bill should be protested for non-payment, and notice given as above for the same purpose. If, after acceptance, the bill has been transferred from hand to hand by endorsement, upon protest for non-payment, notice should be given to each of the endorsers, as well as to the drawer, in order to hold them liable also.

The requisites of protest and notice, how, when, and where to demand payment, &c., will be found in this volume under the head of NOTARY.

The same doctrine applies to promissory notes. If the note be drawn to the order of any person, payable at a certain day, say ten days, it should be presented for payment within reasonable hours on the thirteenth day, and if not paid, notice should be given to the endorser, in order to hold him liable; and if there be several endorsers, notice should be given to each one, for the same purpose.

If payable on demand, the demand should be made within a reasonable time; and on the third day thereafter, within reasonable hours, the note should be presented for payment; and on failure of payment, notice should be given to the endorser or endorsers in like manner and for the like object.

1 Wood's Dig. art. 200.

It is not necessary to protest a promissory note or inland bill of exchange, although it is usual to do so. A demand of payment, and, upon neglect or refusal, notice to the endorser is all that is requisite.'

STATUTORY PROVISIONS.

The following provisions in relation to bills and notes are found in the statutes of California, Oregon and Washington."

Promissory notes payable to order or bearer have the same effect and are negotiable, and may be sued on like inland bills of exchange, according to the custom of merchants. Such notes may be signed by agent, if lawfully authorized, and by corporations capable by law of making contracts. Such notes made payable to the maker, or to the order of a fictitious person, shall have the same effect and be of the same validity as against the maker and all persons having knowledge of the facts, as if payable to the bearer. No person within the state or territory shall be charged as an acceptor on a bill of exchange, unless his acceptance shall be in writing, signed by himself or his lawful agent.

The following provisions are found in the statutes of California and Washington only.

If such acceptance be written on a paper other than the bill, it shall not bind the acceptor, except in favor of a person to whom such acceptance shall have been shown, and who, on the faith thereof, shall have received the bill for a valuable consideration. An unconditional promise, in writing, to accept a bill before it is drawn, shall be deemed an actual acceptance, in favor of a person who, upon the faith thereof, shall have received the bill for a valuable consideration. A refusal to write an acceptance on the bill after request, is a refusal to accept; and the bill may be protested for non-acceptance. A party who has drawn or negotiated a bill on the faith of a previous promise to accept, may recover damages on refusal of the promisor to accept. If a drawer destroy a bill delivered for acceptance, or refuse to return it accepted or non-accepted, for twenty-four

18 Cal. 636.

* Wood's Dig. art. 177, et seq.; Statutes Ore

gon, p. 580, et seq.; Statutes Washington, p 400, et seq.

hours, or such longer time as the holder may allow, he shall be deemed to have accepted it.

The provisions of the several statutes in regard to damages are as follows:

In California, upon protest for non-acceptance or non-payment of bills drawn or negotiated in this state. 1. If drawn upon any person in the United States east of the Rocky Mountains, fifteen dollars upon the hundred upon the principal sum. 2. If drawn upon any person in a foreign country, twenty dollars. If the contents of the bill be expressed in money of account of the United States, the amount due is computed without reference to the rate of exchange; but if expressed in the money of account or currency of any foreign country, the amount is ascertained and determined by the rate of exchange on the value of such currency at the time of the demand for payment.

Such damages are allowed only to a bona fide holder for a valuable consideration, and are in lieu of interest and all charges previous to, and at the time of giving notice; but interest may be recovered upon the principal sum and damages from the time of giving notice.

In Oregon, upon protest for non-acceptance or non-payment of bills drawn in the state. 1. On any place out of the United States, ten per cent. upon the contents, with interest on the contents from the date of protest, with the addition of the current rate of exchange at the time of the demand. 2. On any place out of Oregon and within the United States, the amount of the bill, with legal interest, according to its tenor, and five per cent. damages, together with costs and charges of protest.

In Washington, upon protest for non-payment of bills drawn or endorsed in the territory, if payable without the limits of the United States, ten per cent. upon the contents thereof; if payable within the United States out of the territory, five per cent. on the contents: such damages to be in lieu of interest, charges of protest, and all other charges incurred previous to and at the time of giving notice; but interest upon the amount of the principal sum and the damages may be recovered from the time of giving notice.

Three days of grace are allowed in California, except on sight bills or drafts, and the first of January, the fourth of July, and

the twenty-fifth of December, for the purposes of presentment, protest and notice, are considered as Sunday. In Oregon and Washington, grace is allowed on all bills payable at sight, or at a future day certain within the state or territory, and on all promissory notes, orders and drafts, payable at a future day, certain within the state or territory; except that in Oregon grace is not allowed on bills, notes or drafts, payable on demand. In Washington the fourth of July and the twenty-fifth of December, for the purposes of protest, &c., are considered as Sunday.

JUDICIAL DECISIONS.

When a note is signed by two parties, one of whom writes the word surety after his name, both are treated as makers; the word surety being of effect only as between the makers.'

Such a maker is not guaranteeing another's contract, he is making his own; and cannot show by parol, a different motive from that which appears upon the face of the contract he signs, which is an unconditional contract to pay money; whereas a guarantor or endorser makes only a conditional promise.'

The possession of a promissory note, payable to bearer, or endorsed in blank by the payee, whether obtained before or after maturity, is prima facie evidence of ownership. The transfer, with or without value, confers upon the holder the right of action, and a consideration need not be proved, unless a defence is interposed which would otherwise preclude a recovery.

An agreement for the extension of the time of payment, if without consideration, is void."

When a note is given with the rate of interest in blank, the holder may insert the rate of interest by consent of the maker. If he insert it without such consent, it is not such an alteration as will make the note void, but the principal and interest at the legal rate may be recovered, an innocent holder, however, could recover the principal and interest expressed.'

Giving a note either of the debtor or of a third person, for a pre-existing debt, is no payment, unless it be expressly agreed to

110 Cal. 882.

29 id. 246.

8 id. 109; 6 id. 577.