not disputed with the plaintiff to whom the property belonged at the time of the taking, and therefore if there could be a case in which husband might join with the wife in an action for a personal chattel, the court thought that, after verdict, this ought to be intended to be the case, Bro. Bar. and Feme, pl. 85. abridges a book case in 33 Edw. 3. (but which is not to be found in the year book, and was probably taken from some manuscript) wherein it is held, that busband and wife may join for such things as the wife has as executrix, or where goods are taken from her whilst sole. A declaration in replevin by husband and wife, where nothing appears on the face of the record whence the court can infer that the wife had an interest in the goods taken, is bad, on special demurrer. Serres and wife v. Dodd, 2 N. R. 405. IV. Of Actions against Husband and Wife. In actions against the husband for the debts of the wife contracted before marriage, if the wife is not joined, advantage may be taken of the omission in arrest of judgment: and this rule holds, although an account has been stated with the husband, for that does not alter the nature of the debt. A woman occupied a house from Lady-day until the 8th of June, and then intermarried with the defendant and quitted the house, having on the Lady-day preceding given notice that she should quit at Michaelmas; an action for use and occupation from Lady-day to Michaelmas was afterwards brought against the husband; and it was holden*, that it would not lie; for there was no occupation by the husband for the former part of the half year either in fact or in law. As a husband de facto is liable to the debts of his wife', a plea of ne unques accouple en loyal matrimonie to an action brought against husband and wife, for the recovery of a debt due from wife before coverture, is bad. Husband cannot be charged at law for money lent to his wife, even for the purpose of buying necessaries; because it may be misapplied. If the money be laid out in necessaries, equity will consider the lender as standing in the place of the person providing the necessaries, and decree relief. Harris v. Lee, 1 P. Wms. 482. Preced. in Chan. 502. S. C. and Hutchinson v. Standly, h Mitchinson v. Hewson, 7 T. R 348. Drue v. Thorne, Aleyn, 72. k Richardson v. Hall, 1 Broderip and Bingham, 50. 1 Norwood v. Stevenson, Andr. 227. Lord Bathurst, C. H. T. 1776. MSS. But a count for money lent to the wife at the request of the husband is good", because a loan to the wife at the request of the husband is considered in law as a loan to the husband. The count, however, must state the money to have been lent to the wife at the request of the husband; for where the money was alleged to have been lent to the wife at the wife's request, it was holden bad". "It is true that a complete or perfect contract cannot be made by a feme covert by her own authority; yet, by the assent of her husband, she may contract as his substitute, as in case either of sale or loan. This assent may be either express or implied; it may be prior or subsequent to the contract. If prior and communicated to the defendant, the contract made is an actual contract, and not merely virtual with the husband; if subsequent, then the wife's contract is inchoate and imperfect, until affirmed by the husband; and such affirmation, if given, transfers the contract to him." Per Blackstone, J. in Stevenson v. Hardie, 2 Bl. R. 873. So where the plaintiff declared, that the defendant was indebted for meat, &c. found by the plaintiff at 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 bad P. 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 wife; 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 quoad caperet J. G. ad satisfaciendum, upon which the sheriff took J. G. whose husband, together m Stevenson v. Hardy, 2 Wils. 388. 2 q Miles v. Williams, 1 P. Wms. 249. Bl. R. 872. S. C. n Stone v. Macnair, in error, 7 Taunt. 432. o Ross v. Noel, Bull. N. P. 136. p Morris and wife v. Norfolk and another, 1 Taunt. 212. said by Lord Hardwicke, in 2 Vesey, 181, to be truly reported. r Draper v. Fulkes, Yelv. 165. s Doyley v. White, Cro. Jac. 323. 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 feme', 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 sole", 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 error*. 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 wife. 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. t Cooper v. Hunchin, 4 East's R. 521. y Errington v. Gardiner, B. R. M. 22. See 3 M. and S. 557. u Obrian v. Ramm, Carth. 30. See the record, 3 Mod. 170. x Swithin v. Vincent, 2 Wils. 227. Dyer, 19, a. pl. 112. in the margin. G. 3. MS. See Smith v. Warner, z Davis v. Dinwoody, 4 T. R. 678. 293) CHAP. IX. BILLS OF EXCHANGE AND PROMISSORY NOTES. 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-Evidence— Recovery of Interest. IX. Of the Nature of a Promissory Note-Stat. 3 and 4 Ann. c. 9. s. 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 sion. I. 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. 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 united in the same person, as if A. draw a bill in a Postleth. Dict. b Grant v. Vaughan, 3 Burr. 1516. c Per Holt, C. J. in Buller v. Cripps, 6 Mod. 30. |