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2. That there is a misjoinder in this, that the Tuolumne County Bank alone, if any person, should be made defendant; 3. “That the complaint does not state facts sufficient to constitute a cause of action for the reason that the instrument set out in the complaint . . . shows on its face that it is an attempted testamentary disposition of property by means of an improperly executed will”; 4. That the complaint is ambiguous and uncertain because “it is impossible to determine whether said instrument is pleaded as a note, an obligation, or an order or either or all,” nor can it be ascertained from the complaint "whether the said instrument is a promis sory note, an obligation or an order upon a bank for the payment of money."

It is stated as grounds of demurrer by defendant bank that it appears from the complaint that said instrument was not presented to said bank for payment "during the lifetime of Zanone and that Zanone died on the 19th day of December, 1911, and that said check or order was presented to Tuolumne County Bank on the 10th day of February, 1912, and by reason of the death of said Louis Zanone said bank could not lawfully pay said check or order” and that said bank is improperly joined as a defendant in the action with the administrator of said estate who is entitled to the possession of all the estate of said deceased and that defendant the bank could not pay any claim against said estate to any one.”

The demurrer was sustained without leave to amend and judgment dismissing the action was entered, from which plaintiff appeals.

In her complaint the plaintiff seems unable definitely to characterize the instrument sued on and, therefore, describes it as "a promissory note, obligation and order on said bank." The instrument is not a promissory note, for the signer does not promise “to pay a specified sum of money.' (Civ. Code, sec. 3244; Kendall v. Parker, 103 Cal. 319, 324, [42 Am. St. Rep. 117, 37 Pac. 401].) “A check is a bill of exchange drawn upon a bank or banker, or a person described as such on the face thereof, and payable on demand, without interest." (Civ. Code, sec. 3254.) “A bill of exchange is an instrument, negotiable in form, by which one, who is called the drawer, requests another, called the drawee, to pay a specified sum of money.” (Civ. Code, sec. 3171.)

The instrument resembles a check when reduced to its essential elements. It is an order on the Tuolumne County Bank to pay a specified sum to the payee "if countersigned across the back” by the drawer and presented in his lifetime, and if presented after his death then to pay without being countersigned. Regarding it as a check on the bank it did not operate as an equitable assignment of so much of the drawer's funds as he had in the bank at that time without being presented for payment. (Donohoe-Kelly Banking Co. v. Southern Pacific Co., 138 Cal. 184, (94 Am. St. Rep. 28, 71 Pac. 93].) In the same volume, [138 Cal.] at page 169, [94 Am. St. Rep. 19, 66 Pac. 740, 71 Pac. 83], in the case of Pullen v. Placer County Bank, the question is also very fully discussed. The rule enunciated in both cases is that a check does not operate as an assignment of the money for which it was drawn and until the check is presented no property right in the fund passes to the payee by virtue of the check. In Pullen v. Placer County Bank, and in like cases, there was no contract with or promise made to the payee and no consideration to support the instrument. The claim that the death of Zanone revoked the authority of the bank to pay the check is not supported by the Pullen case, in which the check was a gift.

We have seen that a check is a bill of exchange. “The rights and obligations of the drawer of a bill of exchange are the same as those of the first indorser of any other negotiable instrument.” (Civ. Code, sec. 3177.) “Every indorser of a negotiable instrument, unless his indorsement is qualified, warrants to every subsequent holder thereof, who is not liable thereon to him; ... Fourth. That if the instrument is dishonored, the indorser will ... pay the same with interest

(Civ. Code, sec. 3116.) Mr. Daniels cites several cases where it has been held that notes made payable "after a man's death," or "to be allowed at my decease," or a provision to pay "on demand after my decease," or "one day after date or at my death,” are good negotiable notes. (1 Daniels on Negotiable Instruments, sec. 46, 5th ed.) The instrument in question is negotiable in form and comes under the classification of negotiable instruments as mentioned in section 3095 of the Civil Code. It not only recites a consideration but “it is presumed to have been made for a valuable consideration,” before its maturity, “and in the ordinary

course of business." (Civ. Code, sec. 3104.) In effect there was here an obligation that the drawer's estate would pay if the bank refused.

Mr. Daniels shows that the doctrine of the revocation of a check or bill by the death of the drawer is generally based on the English case of Tate v. Hilbert, 2 Ves., Jr., 118 (1793), 4 Brown Chy. Cas., 286; Chitty, Jr., on Bills, 510. In Tate v. Hilbert it was held that the gift of a common check on a banker payable to bearer was not a valid donatio mortis causa or an appointment or disposition in the nature of it. Says Mr. Daniels: “It is quite true that authority to an agent is revoked, as a general rule, by death of the principal; (Story on Agency, sec. 488); but this doctrine is qualified by the equally well-settled principle, that if the authority be coupled with an interest in the thing vested in the agent, the death of the principal operates no revocation. Now where a check is given to the payee for a valuable consideration (and the check imports value), the authority to the payee to collect the amount from the bank is coupled with a vested interest in the check. He can sue the drawer upon the check if it be dishonored. ... The English case above referred to does not determine, as has been supposed, that where a check is given for value, the authority of the banker to pay it is revoked. The death of the drawer of an ordinary bill of exchange does not revoke it, and we can discern no principle of law which allows the death of the drawer to affect the rights of a checkholder who has given value for it." The author cites vol. 1 at p. 498; Chitty on Bills, 282, 287; Cutts v. Perkins, 12 Mass. 206; Edwards on Bills, 454; Parsons on Notes and Bills, 287. The author further says: "The idea that the death of the drawer of a check given to the payee for value, operates a revocation, is, as it seems to us, a total misconception of the law. For a check is a negotiable instrument as often, if not more frequently, given for value, than any other species of commercial paper. The drawer is deemed the principal debtor; (sec. 1587); and it is anomalous to hold that his death in anywise lessens his obligations, or the right of the bank to pay it, when given for value.” (2 Daniels on Negotiable Instruments, sec. 1618b.)

Mr. Morse discusses the doctrine of revocation in volume 1, section 400, and contends that it is "a perversion of reason,

20 Cal. App.-39

whatever may be the view taken of the question of assignment.Among other reasons given, the author says: It is inconsistent to hold that a general deposit is a debt, and that the bank is not an agent or trustee or bailee in respect to it, and then, just to bolster up this error, turn completely about and say the bank is an agent, and must be governed by the rules of agency''; that even admitting that the rules of agency control, “an agency clearly intended to be good after death is so held"; that the personal representatives take the property of the deceased, subject to all proper claims against it; that the holder may sue the drawer on a check; it is a binding instrument and this contract should not be lessened by death more than others.

In the present case it is not necessary to determine the question definitely. If the bank has paid the money of deceased to the administrator it can show the fact and in that case the administrator seeks only to be guided as to the payment. The principal objection made to the claim is that the check was an ineffectual attempt at a testamentary disposition. On its face the instrument cannot be so regarded. It is a valid and binding obligation on which plaintiff may recover. (Landis v. Woodman, 126 Cal. 454, [58 Pac. 857). If there is any good defense to it this may be shown by answer and at a trial.

We think the demurrer should have been overruled and defendants required to answer.

The judgment is, therefore, reversed.

Hart, J., and Burnett, J., concurred.

[Civ. No. 1025. Third Appellate District.—December 12, 1912.) MARY CENTER, Respondent, v. E. A. KELTON, as Sheriff

of the County of Napa, Appellant. SALES – Cows AND GRAIN - ATTACHMENT REPLEVIN QUESTION OF

FRAUD-DEFENSE-WANT OF "ACTUAL AND CONTINUED CHANGE OF Possession.”—In an action of replevin, involving the title to cows and grain sold to the plaintiff, and attached as the property of plaintiff's vendor, it is held that the defense of the attaching creditor, based on the question of fraud in the sales, and pleading that the alleged sales of the cows and grain were not accompanied by an "immediate delivery and an actual and continued change of possession" by the vendor of the plaintiff, as required by section 3440 of the Civil Code, to protect the same from the reach of the creditors

of the vendor, is tenable, under the proofs in the case. ID.—OBJECT OF STATUTE-SUBSTANTIAL OBSERVANCE REQUIRED.—Care

should be taken to keep in view the object of the statute which is to require notice to the world of the transfer of personal property, in order that creditors may be justly protected; and nothing less than a substantial observance of its salutary provisions shoult be

required. [P.-RULE OF STATUTE NOT TO BE RELAXED-HONESTY OF SALE OR HARD

SHIP NO GROUND FOR DISREGARDING STATUTE.—The rule prescribed by the statute is not to be relaxed by judicial interpretation, However honest the sale may be, and whatever hardship may be inflicted upon the vendor, this furnishes no reason for disregarding the plain provisions of the statute, or setting at naught its whole sane and salutary rule for the preservation of personal honesty and

commercial security. JD.-OTHER ALLEGED PURCHASES NOT CONCLUDED FRAUDULENT.-. It is

held that other alleged purchases, than the cows and grain, stand upon a somewhat different footing, and that while they present a debatable question, the appellate court is not prepared to say that

the evidence compels the conclusion that they were fraudulent. [D.-ARGUMENT OF CASE TRIED BY COURT—DISCRETION OF JUDGE-BET

TER PRACTICE.—Though there is no statutory rule requiring the argument of a case tried by the court, and there is reason for leaving the matter to the wise discretion of the judge; yet, where there is room for argument, it would be the better practice to permit it.

APPEAL from a judgment of the Superior Court of Napa County. H. C. Gesford, Judge.

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