CAP. II.

Sect. 1. Parties to a Bill or Note.

2. Infants, p. 38.

3. Femes Covert, p. 40.

4. Several Persons not connected in Partnership, p. 42. 5. Partners, p. 44.

6. Corporations, p. 52.

7. Agents and other Persons standing en auter droit, p. 54..

8. Aliens, p. 58.

A BILL or note cannot properly be made or indorsed by, nor can a bill be properly addressed to any person incapable of making himself responsible for the payment, nor can they be properly made payable or indorsed to any person incapable of suing.

Sect. 2. Therefore a bill or note cannot properly be made or indorsed by, nor can a bill be properly addressed to an infant (1), except perhaps

(1) Williams v. Harrison, Carth. 160. 3 Salk. 197. In an action against the drawer of a bill, the defendant pleaded infancy, and the plaintiff demurred, and the court held clearly without argument, that infancy was a good bar, for the bill was drawn by the defendant as a trader in course of trade, and not for necessaries.

where it is drawn, indorsed, or accepted for necessaries. (2)

But if an infant draw a bill to his own order, and indorse it, and the drawee accept it, the acceptance will bind the drawee, and he will be compellable to pay the indorsee, because, by accepting, he precludes himself from disputing the competence of the drawer. (

And the drawing, indorsing, or accepting by an infant, is voidable only, not void (4), and if he ra

(2) Williamson v. Watts, 1 Campb. N. P. C. 552. In an action against the acceptor of a bill, the defendant pleaded infancy, and the plaintiff replied that the bill was accepted for necessaries, on which issue was joined: on opening the case Sir J. Mansfield C. J. said, "This action certainly cannot be maintained. The defendant is allowed to be an infant, and did any one ever hear of an infant being liable as an acceptor of a bill of exchange? The replication is nonsense, and ought to have been demurred to." He said as the point of law was so clear, he felt strongly inclined to nonsuit the plaintiff; but he heard the evidence, and the plaintiff was nonsuited, on proof that the goods, for which the bill had been given, were not necessaries.

(3) Taylor v. Croker, 4 Esq. N. P. C. 187. In an action against the acceptor of a bill, drawn by Eversfield and Jones on the defendant, in their own favour, and indorsed by them to one S. and by him to the plaintiff; it appeared that both the drawers were infants at the time of drawing the bill. But Lord Ellenborough held that though that might have been a good defence had the action been brought againt the drawers themselves, it was no defence in the present action. Verdict for the plaintiff.

(4) Gibbs v. Merrill, 3 Taunt. 307. A bill was accepted by Merrill and Le Blond; Le Blond was an infant. An action being brought against Merrill only, he pleaded that he did not

tify the act after he comes of age, it will bind him.

As an infant is capable of suing (5), he may be a payee or indorsee.

But it may be questionable in some cases, whether payment should not be made to his guardian. (6)

Sect. 3.- Bills or notes cannot properly be made, indorsed, or accepted by a feme covert, un

undertake unless jointly with Le Blond. Replication that he did; plaintiff proved Le Blond's infancy, and defendant proved by Le Blond, that he had never disaffirmed the acceptance. The jury found for the plaintiff; but on a rule nisi for a new trial, and time to consider, the court held Le Blond's acceptance voidable only, not void; and that the issue should have been found for the defendant; they therefore set aside the verdict, but gave the plaintiff leave to amend his replication by stating Le Blond's infancy, and so raising the question whether he was compellable to join him.

(5) See Teed v. Elworthy, 14 East, 210. Bruce, 2 Maule & S. 205. 6 Taunt. 118.

Warwick v.

(6) See Pothier pl. 166. who observes that payment to an infant will be no discharge of the debtor, unless it appear that the payment were beneficial to the infant; if the money were applied to his advantage, the payment will be good; if not, as where the infant squanders it, the party paying will not be discharged. So money lent to an infant for necessaries, if duly applied, may in equity be recovered from him. Marlow v. Pitfield, 1 P. Williams, 558. Though it is otherwise at law, 1 Salk. 279. 386. But if an executor pay a legacy to an infant, which the infant's father obtains and dissipates, the executor will be answerable to the infant. Philips v. Paget, 2 Atk. 80. See also Pothier on Obligations, part iii, ch. 1. art. 2. §. 1.

pl. 504,

and s. 2.

less where she acts by authority from her husband (7), or where she resides here, and he is under a civil incapacity of being in this king, dom. (8)

Her living apart from her husband, and having a separate maintenance secured by deed (9), or

(7) Barlow v. Bishop, 1 East's Rep. 432. Ann Parry was married, but traded in her own name, with her husband's consent. She became indebted to the plaintiff, and to enable her to pay him, the defendant who knew that she was married, gave her a note payable to her or order. She indorsed it in her own name to the plaintiff, and he brought this action. Lord Kenyon thought it not maintainable, but saved the point; and after a rule nisi for a nonsuit, and cause shewn, he said it was clear that the delivery of the note to the wife vested the interest in the husband; that as he permitted her to trade on her own account, and this was a transaction in the course of that trade, he was not prepared to say that had she indorsed the note in his name, it would not have availed; the jury might have presumed that she was authorized by her husband; but the indorsement being in her own name, it was impossible to say it could pass the husband's interest. Rule absolute.

Cotes v. Davis. 1 Campb. N. P. C. 485. In an action by an indorsee against the maker of a note made payable to " Mrs. "Carter, or order," and indorsed by her in her own name, the defendant offered to show that Mrs. Carter was wife to one Cole; but it being proved that subsequently to the indorsement, and when the note was presented for payment, the defendant had promised to pay it, Lord Ellenborough said the jury might presume that she had authority from her husband. to indorse the note, and that in the name by which she passed in the world. Verdict for the plaintiff.

(8) Vide Derry v. Duchess of Mazarine, Lord Raym. 147. Salk. 116. Sparrow v. Carruthers cited Blackst. 1197. 1 Term Rep. 6. See also Blackst. 1081, 1082. 1 Term Rep. 9, (9) Vide Marshall v. Rutton, 8 Term Rep. 545,

her trading, by particular custom, on her own account (10), gives her no capacity to draw, indorse, or accept.

If a bill or note be made payable, or indorsed to a feme covert, whose husband is under no civil incapacity, the wife alone cannot, except as agent to her husband, make it available, or sue upon it; (11) The husband may.

And he may either negotiate it;

Or sue upon it.

And he may either sue upon it in his own name, and treat it as if it were made payable to himself; (12)

Or sue upon it in the joint names of himself and his wife. (13)

Sect. 4. If several, who are not partners, join in a note, and it begins with, "I promise," &c. it is several as well as joint, and it will bind each individual separately; (14)

(10) Vide Blackst. 1081. Caudell v. Shaw, 4 Term Rep. 361. but see also Lacie v. Phillips, Burr. 1776.

(11) See Barlow v. Bishop, ante, 41.

(12) Arnold v. Revoult, 1 Brod. & Bingh. 443.

(13) Philliskirk v. Pluckwell, 2 Maule, 393. A note to a feme covert; action thereon by her and her husband. Rule nisi for a nonsuit, but on cause shown, the court held that as a note primâ facie imported a consideration according to its tenor, and the wife might have been the meritorious cause of it, or it might have been given for a debt due to her before marriage, the husband might suffer her to join in suing upon it, and the rule was discharged.

(14) Lord Galway v. Matthew, post, 45.