Check—Order Drawn upon One Bank by Another—Dishonor — Action against Drawer. —An order drawn upon a bank is a check, though drawn by another banker; and if such check is dishonored by the bank upon which it is drawn, an action lies in favor of the owner of the check, or his assignee, against the bank which drew the check.

Id.—Purchase of Check to Pay Debt—Miscarriage—Payment to Forger—Ownership by Purchaser.—Where the check sued upon was purchased by a debtor of the payee, and mailed to him, to be collected by him and applied upon his indebtedness, but the payee never received it, and it was paid upon a forged indorsement to another person, such payment gave the drawee no right to retain the check, or to claim reimbursement from the drawer, but the check remained the property of the purchaser.

Id.—Demand by Payee—Agency for Purchaser—Notice of Dishonor—Liability of Drawee.—A demand by the payee, upon the bank upon which the check was drawn, was, in legal contemplation, made by him as agent for the purchaser, and its refusal to pay, while the check was wrongfully retained in its possession, was a dishonor of the check, and notice of such dishonor, given to the bank which drew the check, fixed its liability to the purchaser, or his assignee, for the money originally paid for the check, which may be enforced at any time within the statute of limitations.

Id. — Duty of Drawer after Notice—Negligence—Insolvency of Drawee—Loss op Drawer.—Upon receiving notice of dishonor, the bank which drew the check should either demand the return of the check or the return of the money; and where it neglected to do either, it must bear any loss occurring through intervening insolvency of the drawee, after the liability of the drawer was fixed.

Id. — Burden of Proof—Genuineness of Check—Proof of Forgery. — In assuming that the drawee properly paid the check, the drawer must prove the genuineness of its indorsement; and where the indorsement was shown at the trial to be a forgery, the liability of the drawer to repay the money received from the purchaser of the check is established.

Id. — Liability of Drawer for Interest. — The liability of the drawer of the check is the same as that of a first indorser of any other negotiable instrument, and, under the provisions of section 3116 of the Civil Code, construed with section 3177 of the same code, the court was justified in awarding interest upon the check from its date.

Id. — Action by Executors—Evidence—Letters Testamentary.— In an action by executors, the introduction in evidence of the letters testamentary is sufficient evidence of the death of the party entitled to sue, and of an order appointing the plaintiffs as his executors.

Id. — Production of Check at Trial—Evidence—Non-payment.— The production of the check at the trial, without any genuine indorsement thereof by the payee, is sufficient evidence that it was not paid to him, in the absence of evidence showing such payment.

Id. — Refusal to Dismiss Action—Appeal—Order not Involving Merits.—An order refusing to dismiss an action is not itself appealable, and where it does not involve the merits of the action, or necessarily affect the judgment rendered therein, or affect any substantial rights of the defendant, it will not be reviewed upon appeal from the judgment, and cannot constitute such error as to justify a reversal of the judgment.

Id. — Demurrer — Motion to Dismiss — Discretion. — Where a demurrer was interposed to the complaint, and a motion was made to dismiss the action for want of prosecution, it was in the discretion ' of the court to refuse to hear the motion to dismiss, and to hear the demurrer. Its determination to hear the demurrer was, in effect, a denial of the motion to dismiss, and the subsequent refusal of the court to allow the motion to dismiss to be renewed was matter of discretion, which is not reviewable upon appeal.