O'Conor

This is an action upon a bill of exchange, and the material facts of the case are as follows: On August 12, 1890, Livingston, Clarke & Co. drew the said bill of exchange on the Pacific Hardware Company, payable to their own order ninety days after date; and on the twenty-seventh day of that month the same was accepted by the drawee, “payable at office Sather Banking Company, San Francisco, Calif. ’ ’ Thereafter, and before the maturity thereof, the defendants W. H. Clarke, Frank A. Kimball, Sidney Selover, and J. B. Livingston indorsed the said bill of exchange, to enable the drawers to negotiate the same and obtain money thereon; and thereupon Livingston, Clarke & Co. indorsed the said bill, and sold, assigned and transferred the same to the Sather Banking Company. On November 8, 1890, the indorsers, Clarke, Kimball, Selover and Livingston, by an instrument in writing, signed by them, waived demand, protest and notice of protest of and upon the said bill of exchange; and thereafter in January, 1891, the same was for value sold, assigned and delivered by the Sather Banking Company to the Consolidated National Bank of San Diego, which has ever since been the owner and holder…