페이지 이미지
PDF
ePub

holders in due course, the holder whose title first accrues is, as between such holders, the true owner of the bill; but nothing in this section affects the rights of a person who in due course accepts or pays the part first presented to him. (Acts 1907, Reg. Sess., c. 81.)

§ 180. Where the holder of a set indorses two or more parts to different persons he is liable on every such part, and every indorser subsequent to him is liable on the part he has himself indorsed, as if such parts were separate bills. (Acts 1907, Reg. Sess., c. 81.)

§ 181. Acceptance. The acceptance may be written on any part and it must be written on one part only; if the drawee accepts more than one part, and such accepted parts are negotiated to different holders in due course, he is liable on every such part as if it were a separate bill. (Acts 1907, Reg. Sess., C. 81.)

§ 182. Payment without delivery of part bearing acceptance.— When the acceptor of a bill drawn in a set pays it without requiring the part bearing his acceptance to be delivered up to him, and that part at maturity is outstanding in the hands of a holder in due course, he is liable to the holder thereon. (Acts 1907, Reg. Sess., c. 81.)

§ 183. Discharge of one part discharges whole bill.—Except as herein otherwise provided, where any one part of a bill drawn in a set is discharged by payment or otherwise, the whole bill is discharged. (Acts 1907, Reg. Sess., c. 81.)

Title III.—Promissory Notes and Checks. § 184. Definitions: promissory note; check.-A negotiable promissory note within the meaning of this act is an unconditional promise in writing made by one person to another, signed by the maker, engaging to pay on demand or at a fixed or determinable future time, a sum certain in money to order or to bearer; where a note is drawn to the maker's own order, it is not complete until indorsed by him. (Acts 1907, Reg. Sess., c. 81.)

§ 185. A check is a bill of exchange drawn on a bank payable on demand ; except as herein otherwise provided, the provi

sions of this act, applicable to a bill of exchange payable on demand, apply to a check. (Acts 1907, Reg. Sess., c. 81.)

§ 186. Presentment of check.—A check must be presented for payment within a reasonable time after its issue, or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay. (Acts 1907, Reg. Sess., c. 81.)

§ 187. Certification of check.—Where a check is certified by the bank on which it is drawn, the certification is equivalent to an acceptance. (Acts 1907, Reg. Sess., c. 81.)

§ 188. Where the holder of a check procures it to be accepted or certified, the drawer and all indorsers are discharged from liability thereon. (Acts 1907, Reg. Sess., c. 81.)

§ 189. Check not assignment of fund.—A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check. (Acts 1907, Reg. Sess., c. 81.)

Title IV.-General Provisions. § 190. Title of act.—This act shall be known as the negotiable instrument law. (Acts 1907, Reg. Sess., c. 81.)

$ 191. Definition of terms.- In this act, unless the context otherwise requires: “Acceptancemeans an acceptance completed by delivery or notification. "Action” includes counterclaim and set-off. “Bank” includes any person or association of persons carrying on the business of banking, whether incorporated or not. “Bearer” means the person in possession of a bill or note which is payable to bearer. "Bill” means bill of exchange, and “note” means negotiable promissory note. “Delivery” means transfer of possession, actual or constructive, from one person to another. “Holder” means the payee or indorsee of a bill or note, who is in possession of it, or the bearer thereof. “Indorsement” means an indorsement completed by delivery. “Instrument” means negotiable instrument. “Issue" means the first delivery of the instrument, complete in form, to a person who takes it as a holder. “Person” includes a body of persons, whether incorporated or not. “Value” means valuable consideration. “Written” includes printed, and “writing” includes print. (Acts 1907, Reg. Sess., c. 81.)

$ 192. The person “primarily” liable on an instrument is the person who, by the terms of the instrument, is absolutely required to pay the same; all other parties are “secondarily” liable. (Acts 1907, Reg. Sess., c. 81.)

$ 193. In determining what is a “reasonable time” or an “unreasonable time,” regard is to be had to the nature of the instrument, the usage of trade or business, if any, with respect to such instruments and the facts of the particular case. (Acts 1907, Reg. Sess., c. 81.)

§ 194. When time for act falls on Sunday or holiday.—Where the day, or the last day, for doing an act herein required or permitted to be done falls on Sunday or on a holiday, the act may be done on the next succeeding secular or business day. (Acts 1907, Reg. Sess., c. 81.)

$ 195. Existing instruments. The provisions of this act do not apply to negotiable instruments made and delivered prior to the taking effect of this act, and this act shall not take effect until January 1st, 1908. (Acts 1907, Reg. Sess., c. 81.)

§ 196. Law merchant to supplement act.In any case not provided for in this act, the rules of the law merchant shall govern. (Acts 1907, Reg. Sess., c. 81.)

§ 197. Repeal.-Section nine of chapter ninety-nine of the code of West Virginia and all acts and parts of acts in conflict herewith are hereby, to that extent, repealed. (Acts 1907, Reg. Sess., c. 81.)

CHAPTER 7.

LIENS AND CONTRACTS.

§ 1. Form of deed of trust.—A deed of trust to secure debts or indemnify sureties, may be in the following form or to the same effect: “This deed made the day of — , in the year , between - (the grantor) of the one part, and

(the trustee) of the other part, witnesseth: That the said - (the grantor) doth (or do) grant unto the said —

(the trustee) the following property (here describe it). In trust to secure (here describe the debts to be secured or the sureties to be indemnified, and insert covenants, or any other provisions the parties may agree upon.) Witness the following signatures and seals (or signature and seal.) (Code 1916, c. 72.)

§ 2. Sales under trust deeds.—The trustee in any such deed shall, whenever required by any creditor secured or any surety indemnified by the deed, or the personal representative of any such creditor or surety, after the debt due to such creditor or for which such surety may be liable, shall have become payable and default shall have been made in the payment thereof, or any part thereof, by the grantor, sell the property conveyed by the deed, or so much thereof as may be necessary, at public auction, upon such terms as are mentioned in said deed; and if no terms are therein mentioned, then upon the following terms, to-wit: If the property to be sold be real estate, one-third of the purchase money cash in hand, one-third thereof with interest in one year, and the residue thereof, with interest, in two years from the day of sale, taking from the purchaser his notes, with good security, for the deferred payments, and retaining the legal title as further security; the legal title may be conveyed, reserving in the deed a lien for the deferred purchase money, or otherwise securing the same; and if the property to be sold be personal estate, then for cash, having first given notice of such sale as hereinafter prescribed; and shall apply the proceeds of sale, first to the payment of expenses attending the execution of the trust, including a commission to the trustee of five per centum on the first three hundred dollars, and two per centum on the residue of the proceeds, then pro rata (or in the order of priority, if any prescribed by the deed) to the payment of the debts secured and the indemnity of the sureties indemnified by the deed, and shall pay the surplus, if any, to the grantor, his heirs, personal representatives or assigns; Provided, That no trustee shall receive any of the proceeds of such sale until he, if required by the grantor or any cestui que trust, give bond in a penalty equal at least to the full value of the property to be sold, with good security, before the clerk of the county court of the county where said property is, conditioned that he will faithfully perform his duty as such trustee, and account for and pay over as required by law, all money that may come into his hands in the execution of such trust. And no sale shall be made by such trustee, who is required to give bond, until such bond and security has been given and approved by the clerk; and every notice of such sale shall have appended to it the certificate of such clerk that bond and security has been given by the trustee as required by law, if such bond be required as aforesaid. The grantor, or any cestui que trust, may at any time after the execution of the trust, by notice in writing, require any trustee to give such bond, and upon his failure to do so for twenty days after such notice, the power of such trustee shall cease, and another trustee may be appointed by the circuit court of any county wherein such deed of trust is recorded, or by the judge thereof in vacation, to execute said trust, upon the application of any cestui que trust, or the grantor, if, upon the hearing of such application, the fail. ure of the trustee to give such bond be made to appear to the satisfaction of such court or judge, by affidavit or otherwise. At least ten days' notice in writing of such application shall be given to the trustee, grantor and to all cestuis que trust in such deed if they be residents of the county, stating the court or judge before whom such application is to be made. If the said trustee and grantor, or either of them, are not residents of such county, the notice as to them, or the one not a resident, may be published for two successive weeks in some newspaper published in such county, or in some newspaper of general circulation therein, if none be published in the county. Of the trustee so appointed, bond shall be required in the penalty of at least the full value of the property which may come into his hands, which bond may be given before and approved by the said court or judge, or be given before and approved by the clerk of the county court of such county, upon the order of such circuit court or judge, and shall be recorded as above provided as to the bond given by a trustee named in such deed, and shall be with like condition. Every such bond shall be filed by said clerk in his office, and recorded by him in the book in which the bonds of the administrators are recorded. Every such notice of sale shall show the following particulars: (1) The time and place of sale; (2) the names of the parties to the deed under which it will be made; (3) the date of the deed: (4) the office and book in which it is recorded; (5) the quantity and description of the land or other

« 이전계속 »