ceive the same, his or their executors, administrators and assigns, the just and full sum of one thousand dollars, lawful money as aforesaid, being the sum borrowed, and also the premium aforesaid at or before the expiration of thirty days after the arrival of the said vessel at the said port of then this obligation, and the said hypothecation, to be void and of no effect, otherwise to remain in full force and virtue. Having signed and executed these bonds of the same tenor and date, one of which being accomplished, the others to be void and of no effect. Signed, sealed and delivered) A. B. [L. 8.] in the presence of Bond of Indemnity. Know all men by these presents: That I, Cornelius Vanderbilt, of the city of New York, in the state of New York, am held and firmly bound unto Albert Dibblee, of the city of San Francisco, in the state of California, in the sum of five thousand two hundred and seventy-five dollars, lawful money of the United States of America, to be paid to the said Albert Dibblee, his executors, administrators or assigns, for which payment, well and truly to be made, I bind myself, my heirs, executors and administrators, finally by these presents. Sealed with my seal. Dated the day of January, in the year of our Lord one thousand eight hundred and fifty-eight. Whereas heretofore, one B. Frederick Moses filed his bill in the District Court of the United States, for the northern district of California, against the steamship Cortes, upon cause of action alleged to have accrued to him in the early part of the year 1856, and whereas such proceedings were afterward had in said cause in said court, that a judgment or decree was made and entered therein, on the 29th day of December, A. D. 1857, that the said Moses do recover in said action the sum of two thousand four hundred and fifty-nine dollars, for his damages therein, and also the sum of one hundred and seventy-one dollars and fifty cents, for his costs of said action, and that the said steamship be condemned and sold to satisfy him for his said damages and costs, and whereas at the time when said alleged cause of action accrued, the above bounden obligor was the mortgagee and owner of the said steamship, and liable ever for the payment of such damages and costs. And whereas an appeal has been taken from the said judgment or decree, to the Circuit Court of the United States for the districts of California, and whereas the said above bounden obligor has applied to the above-named obligce to become one of the sureties in the stipulation to be given on the said appeal, to stay the execution of said decree, and abide the judg ment and decree of the appellate, and whereas the said obligee hath consented to become such surety, upon being indemnified against all loss or damage by reason thereof, and hath executed and acknowledged the necessary stipulations on such appeal. Now the constitution of this obligation is such, that if the said obligor, the said Cornelius Vanderbilt, and his heirs, executors, and administrators, shall and do at all times hereafter, well and truly save and keep the said obligee, Albert Dibblee, his executors and administrators, harmless of and from all actions, costs, damages and counsel fees, of and from and by reason of or growing out of such suretyship, and shall well and truly repay, or cause to be repaid, to the said obligee, his executors or administrators, on demand, any and all such sum and sums of money that he may be required to pay as such surety as aforesaid, then this obligation to be void; else to remain in full force and virtue. C. VANDERBILT. [L. 8.] By A. B., his Attorney in fact. Sealed and delivered in the presence of M. N. Legatee's Bond. Know all men by these presents: That we, A. B., principal, and C. D. and O. P., of, &c., are held and firmly bound unto E. F. and L. M., of, &c., executors of the last will and testament of S. T., deceased, late of the town of in the sum of one thousand dollars, lawful money of the United States, to be paid to the said E. F. and L. M., executors, as aforesaid, the survivors or survivor, or his or their assigns; for which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the thousand eight hundred and day of one Whereas, in and by the last will and testament of the said S. T., deceased, a legacy of one thousand dollars is bequeathed to the said A. B., which has been paid to him by the said E. F. and L. M., executors as aforesaid: Now the condition of this obligation is such, that if any debts against the deceased, above named, shall duly appear, and which there shall be no other assets to pay, and if there shall be no other assets to pay other legacies, or not sufficient, then the said A. B. shall refund the legacy so paid, or such ratable proportion thereof, with the other legatees of the deceased, as may be necessary for the payment of such debts, and the proportional parts of other legacies, if there be any, and the costs and charges incurred by reason of the payment of the said A. B.; and that if the probate of the will of the said deceased be revoked, or the will declared void, then the said A. B. shall refund the whole of the legacy, with interest, to the said E. F. and L. M., their exec utors, administrators, or assigns. Sealed, &c. [as above]. A. B. [L. S.] C. D. [L. S. CHAPTER X. BILLS OF EXCHANGE AND PROMISSORY NOTES. THESE instruments derive their great practical utility from the qualities and incidents which attach to them in their character of negotiable paper. By negotiable paper is usually meant evidence of debt, which may be transferred by endorsement or delivery, so that the transferree or holder may sue the same in his own name; or, in other words, it means paper, that is, bills of exchange or promissory notes, payable to the order of a payee or to bearer. By the statute of California, however, all bills and notes negotiable, and all bonds, due bills and other instruments of writing not negotiable, payable in money or articles of personal property, or any sum of money in personal property, are transferable by endorsement; and all alike, negotiable and non-negotiable, must be sued in the name of the real owner. In this state, therefore, a full definition of negotiable paper would be, a bill, or note, or evidence of debt, payable to order or to bearer, or evidence of debt which may be transferred by endorsement or by delivery before maturity bona fide, so that the new owner can sue the same in his own name, and recover the face of the instrument, without giving notice of the transfer to the payer, although the payer may have a legal counter-claim against the payee. The great importance of such paper among business men is derived from the circumstance, that in proportion to its credit, it may be used to pass from hand to hand, serving the purposes of cash; the principle of law being that, if negotiable where made, it is negotiable everywhere. A bill of exchange is a written order or request, and a promissory note a written promise, by one person to another for the payment of money at a specified time, absolutely and at all events. A., who draws the bill, is called the drawer; B., to whom it is addressed, is called the drawee, and on acceptance he becomes the acceptor; C., to whom the bill is made payable, is called the payee; X., who makes the note, is called the maker; Y., to whom the note is made payable, is called the payee. The instrument is made negotiable when drawn to the order of the payee, or to the payee or order, or to bearer. The payee to order, M., may by endorsement direct the bill or note to be paid to N.; and in that case M. becomes the endorser, and N., to whom it is endorsed, is called the endorsee or holder. He is also called the assignee; and if N. endorses to O., then N. is a subsequent endorser, and O. is a subsequent endorsee, holder, or assignee; and each preceding endorser is liable to the holder for the payment of the bill or note. If he wishes to avoid liability, he should write over his name the words, "without recourse." The usual mode of endorsement is, for the person to whose order the instrument is payable to write his name across the back of it. This is called an endorsement in blank; because it is not endorsed to any particular person, and is good in the hands of any bona fide holder, and can be again transferred, without further endorsement, by mere delivery. If he wishes to make it payable to any particular person, A. B., he writes across the back, "Pay to A. B. or order." This is called a special endorsement, because it is good only in the hands of A. B., and cannot be again transferred unless endorsed by A. B. If the note be drawn to the order of several persons, not copartners, it must be endorsed by each of such persons upon transfer. A guarantor is one who puts his name on the back of the paper, out of the usual course of regular transfer and negotiability. Under the California decisions, he is liable to pay if the maker does not, provided there has been due presentment made to the maker, and strict notice of non-payment given to the guarantor. See post. 12 Cal. 485; Brady v. Reynolds, January Term, 1859; Geiger v. Clark, et al., April Term, 1859. |