« EelmineJätka »
the defendant's request, and on evidence it appeared to be found for the defendant's wife, at his request, in his absence; upon a case reserved, it was holden, that a delivery to the wife, at the husband's request, was in law a delivery to the husband. If a declaration against husband and wife, for a debt of the wife contracted before marriage, allege a promise of the wife, made after the marriage to pay the debt, it is bads. If an action is brought against husband and wife on a bond given by the wife dum sola", the defendant may plead the bankruptcy of the husband after the intermarriage &c. as a discharge of the debt. This plea upon the statute must conclude to the country. Husband and wife cannot maintain an action of trover, and suppose the possession in them both; for the law will transfer the whole interest to the husband: but trover may be maintained against husband and wifeu; for the gist of the action is the conversion, which is a tort, with which a feme covert may be charged as well as with trespass. Trespass against J. G. widow, and pending the suit she took husband; after judgment, a writ was directed to the sheriff quod caperet J. G. ad satisfaciendum, upon which the sheriff took J. G. whose husband, together with her, thereupon brought an action for false imprisonment against the sheriff, who justified under the ca. sa. On demurrer, the court gave judgment for the defendant, observing, that if an action be brought against a feme, who before judgment takes husband, yet, if she be found guilty, the ca. sa. shall be awarded against her, and not against her husband. In like manner, after interlocutory judgment in assumpsit against a femey, who afterwards marries, the plaintiff, even after notice of the marriage, may proceed to final judgment, without joining the husband, and sue out execution thereon against the feme only, and such execution cannot be set aside for irregularity. Judgment was obtained against a feme solez, who afterwards married, and then the plaintiff brought a sci. fa. against husband and wife, and had judgment thereon; then the wife died, and the plaintiff afterwards brought another sci. fa. against the husband alone: it was holden, on writ of error, that the second sci. fa. was well brought, on the ground that the judgment on the first sci. fa. had made the husband liable. If wife be joined in an action for words spoken by husband only, it will be errora. Hence if slander be spoken by husband and wife, there must be separate actions, one against the husband only, for the slander spoken by him, and the other against the husband and wife, for slander spoken by the wife, and the court will not order the actions to be consolidated. So for words spoken of husband and wife there must be two actions, one by the husband for the words spoken of the husband, and another by husband and wife for the words spoken of the wifeb. The policy of the common law will not permit husband and wife to give evidence for each other, because their interests are the same; nor against each other, on account of the implacable dissension which might be occasioned thereby. The declarations of a married woman, during coverture, of the non-payment of money lent to her before marriage, are admissibled in evidence for the plaintiffs, in an action brought against her husband as her administrator: for the wife, like any other person, may bind her representative.
s Morris and wife v. Norfolk and ano- x Doyley v. White, Cro. Jac. 323. ther, 1 Taunt. 212.
y Cooper v. Hunchin, 4 East, 521. t Miles v. Williams, 1 P. Wms. 249. See 3 M. and S. 557.
said by Lord Hardwicke, in 2 Vesey, 2 Obrian v. Ramm, Carth. 30. See the 181, to be truly reported.
record, 3 Mod. 170. u Draper v. Fulkes, Yelv. 165.
a Swithin v. Vincent, 2 Wils. 227. c Davis v. Dinwoody, 4 T. R. 678.
Dyer, 19, a. pl. 112. in the margin. Bull. N. P. 286. b Errington v. Gardiner, B. R. M. 22. d Per Lord Tenterden, C. J. Hum.
G. 3 MS. See Smith v. Warner, phreys v. Boyce, 2 M. and Malk.
BILLS OF EXCHANGE AND PROMISSORY
I. Of the Nature of a Bill of Exchange. II. Of the Capacity of the contracting Parties to a Bill
of Exchange. III. Of the Requisites in a Bill of Exchange, and herein of
the Stamp, Date, and Consideration. IV. Presentment for Acceptance— Acceptance-qualified
Acceptance-Liability of the Acceptor-Non-acceptance, and Notice thereof-Protest-Liability of
the Drawer on Non-acceptance. V. Of the Transfer of Bills of Exchange-Of the Party
in whom the Right of Transfer is vested. VI. Of Presentment for Payment, and herein of the Days
of Grace-Non-payment and Notice thereof
Protest. VII. Of the Acts of the Holder, whereby the Parties to the
Bill may be discharged. VIII. Of the Action on a Bill of Exchange—Pleading under
the New Rules—Evidence-Recovery of Interest. IX. Of the Nature of a Promissory Note-Stat. 3 and 4
Ann, c. 9. 8. 1, placing Promissory Notes on the footing of Inland Bills of Exchange-What are negotiable Notes within the Statute Of Bankers' Notes
-Joint and several Notes-Consideration-Stamp. X. Of the Time when a Note ought to be presented for
Payment. XI. Of the Declaration — Pleadings-Evidence- Conclu
1. Of the Nature of a Bill of Exchange.
A BILL of Exchange is a written order from A. to B. directing B. (who has, or is supposed to have, in his hands, sufficient effects belonging to A.) to pay a sum of money to C. or order, or to C. or bearer, either at sight or a certain number of days after sight, or after date, or at single, double, or treble usance, or on demand. The peculiar properties of a bill of exchange are these: first-It is assignable to a third person not named in the bill, or party to the contract, so as to vest in the assignee a right of action in his own name: contrary to the general rule of law, that choses in action are not so assignable. Secondly-Although a bill of exchange be merely a simple contract, and not a specialty, yet it will be presumed that it has been originally given for a good and valuable consideration. Bills of exchange are either foreign or inland; foreign bills of exchange have long been considered as the most convenient paper security among merchants, in conformity to the universal usages and customs established among traders, by unanimous concurrence, for facilitating a general commerce throughout the world. The person making the bill is called the drawer, the person to whom it is directed the drawee, and the person in whose favour it is made the payee. When the drawee has undertaken to pay the bill, he is stiled the acceptor, and his undertaking to pay the bill is called an acceptance. No one can be liable as acceptor but the person to whom the bill is addressedb, unless he be an acceptor for honour. Bills of exchange payable to order are assignable by indorsement. The person making an indorsement is called the indorser; the person in whose favour it is made, the indorsee; the party in possession of the bill, and entitled to receive its contents, the holder. Bills payable to bearer are transferable by delivery without indorsement. Where the drawee refuses to accept, a stranger, after protest for non-acceptance, may accept for the honour of the drawer, and thereby such stranger acquires certain rights, and subjects himself to the same obligations as if the bill had been directed to him. So a stranger may become a party to a bill, paying it after protest for non-payment, either for the honour of the drawer or indorsers. Although regularly there ought to be three persons concerned in a bill of exchange, viz. drawer, drawee, and payee, yet there may be only two; that is, the characters of drawer and payee may be, and frequently are, united in the same persond, as if A. draw a bill in this manner: “Pay to me or my order £ Value received by myself.” A bill of exchange is a simple contract®, and consequently is within the statute of limitations; and must be sued for within six years after it becomes payable. In an action by an administrator, upon a bill of exchange payable to the testator, but accepted after his death, it was holden', that the statute of limitations begins to run from the time of granting the letters of administration, and not from the time the bill becomes due, there being no cause of action until there is a party capable of suing. An agent having money in his hands belonging to his principal, purchases with it a bill of exchange, which he indorses specially to his principal ; the latter, at the time of the indorsement, was dead, but that fact was not known to the agent; it was holden 8, that the
a Postleth. Dict.
judginent in Polhill v. Walter, 3 B.
& Ad. 122. See stat. 6 and 7 W.
4. c. 58. post. c Grant v. Vaughan, 3 Burr. 1516.
property in the bill passed to the administrator of the principal, and that he might, therefore, sue upon the bill in that character; it was holden, also, that the administrator was only entitled to recover interest upon bills accepted after the death of the testator, from the time of demand of payment made by the administrator, and not from the time the bills became due. Where the declaration stated the drawing of certain bills of exchange, and their acceptance after the death of the intestate, the granting of the letters of administration to the plaintiff, the defendant's liability, &c.; and the defendants pleaded that the cause of action did not accrue within six years; to which the plaintiff replied generally, that it did accrue within six years : it was holdenh, that the replication was good. Bills of exchange for value receivedi, are not such matters of account as are intended by the exception in the statute of limitations concerning merchants' accounts. A bill of exchange is to be considered as a simple contract debt in a course of administration, which an executor or administrator cannot discharge before debts by bond, without being guilty of a devastavit.
If a merchant in London draws a bill of exchange on his correspondent in Newcastlek, in favour of J. S. and the bill is refused, and J. S. dies intestate, his administrator, on letters
d Per Holt, C. J. in Buller v. Cripps, g Murray v. East India Company, 5 B. 6 Mod. 30.
and A. 204. Renew v. Axton, Carth. 3.
h Ib. f Murray v. East India Company, 5 B. i Chevely v. Bond, Carth. 226. and A. 204.
k Yeomans v. Bradshaw, Carth. 373.