Imágenes de páginas
PDF
EPUB

But if an infant draw a bill to his own order, and endorse it, and the drawee accept it, the acceptance will bind the drawee, and he will be compellable to pay the endorsee, because, by accepting, he precludes himself from disputing the competence of the drawer. (3)

[So it has been held in Massachusetts, that if an infant endorse a note, an action may be maintained upon it by his endorsee against any of the prior parties. (a)]

And the drawing, endorsing, or accepting by an infant, is voidable only, not void (4), and if he ratify the act after he comes of age, it will bind him. (b)

whence it may be inferred that they thought the first was with him, but they decided against him on the last.

It has been held in New York that a negotiable note given by an infant for necessaries is void. Swasey v. Vanderheyden, 10 Johns. R. 33.]

(3) Taylor v. Croker, 4 Esp. N. P. C. 187. In an action against the acceptor of a bill, drawn by Eversfield and Jones on the defendant, in · their own favor, and endorsed 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 against the drawers themselves, it was no defence in the present action. Verdict for the plaintiff.

[(a) Withington made a note to Vose a minor, in payment for his services; Vose for a valuable consideration endorsed it to Bacon, who passed it to Nightingale, all the parties knowing Vose to be a minor. Withington, after having notice of the endorsement, paid the amount of the note to Vose's father. The court held that this payment was no defence to an action upon the note by Nightingale against Withington. Parker C. J. That an infant may endorse a negotiable promissory note, or a bill of exchange, made payable to him, seems to be well settled in the law merchant; and is no ways repugnant to the common law." "Whether an infant may avoid an endorsement so made, and oblige the promiser to pay him, is a question not arising in this case; for there has been no countermand or revocation of the order to pay, which is implied in his endorsement. If an action should be brought against the infant as endorser, without doubt he may avoid such action by a plea of infancy. But that is a personal privilege which none but himself can set up, in avoidance of any contract in his favor." Nightingale v. Withington, 15 Mass. R. 272.]

(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 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 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

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

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, endorsed, or accepted by a feme covert, unless where she acts by authority from her husband (7), or where she resides here,

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.

[Dutch, whose partner, Green, was a minor, made a note in the partnership name. Green, after coming of age being applied to for payment, said that he would endeavor to procure the money and send it to the plaintiffs, the payees. Parker C. J. who delivered the opinion of the court, said, that this evidence was sufficient to satisfy the jury that Green had ratified the original promise: that no letter of attorney was necessary to authorize Dutch to make this note; and that the note at its inception was only voidable as to Green, not void; and therefore that he might ratify it after he came of age. Whitney v. Dutch, 14 Mass. R. 457.]

(b) See 1 Root, 477. Wright v. Steele, 2 N. Hamp. R. 51.

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

(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, s. 1. pl. 504. and s. 2.

(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 endorsed 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 endorsed the note in his name, it would not have availed; the jury might have presumed that she was authorized by her husband; but the endorsement 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 endorsee

and he is under a civil incapacity of being in this kingdom. (8)

Her living apart from her husband, and having a separate maintenance secured by deed (9), or her trading, by particular custom, on her own account (10), gives her no capacity to draw, endorse, or accept.

If a bill or note be made payable, or endorsed 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)

[And a note payable to husband and wife, goes to the wife, if she survives him. (a)]

against the maker of a note made payable to “Mrs. Carter, or order," and endorsed 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 endorsement, 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 endorse 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.

(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. p. 35.

(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 consileration 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.

[(a) A note and mortgage were made to husband and wife, to secure the purchase money of land which had belonged to the wife. It was

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)

And all jointly. (15)

And it only requires one stamp, if it were the bargain before it was issued that all should join. (15)

But if there were no such bargain, the addition of a fresh signature, after it was once issued, would make a new stamp necessary. (15)

[If a person, not the payee of a note, signs upon the note at the time it is made, an acknowledgment that he is holden as surety for the payment of the note, or endorses an undertaking to pay the note, he is liable as a joint and several promiser. (a)]

held that the note and mortgage survived to the wife, and did not go to the husband's administrator. Draper v. Jackson, 16 Mass. R. 480. (14) Lord Galway v. Matthew, post.

[ March v. Ward, Peake, 130. A note signed by Bowling and Ward, began "I promise to pay," and in an action against Ward alone, it was objected that the note was joint only, and not several; but Lord Kenyon held it was several as well as joint, and said it had been so decided on a case from Chester. "I applies to each severally." Verdict for the plaintiff.] [See also Hemmenway v. Stone, 7 Mass. R. 58. Hunt v. Adams, post.]

(15) Clark v. Blackstock, Holt, 474. A note was in this form; “I promise to pay plaintiff or order, £30 with interest, value received; Thos. Jackson, Jno. Blackstock." In an action against Blackstock alone, two objections were made, one that this was the joint note of Jackson and Blackstock: and, secondly, that there should have been an additional stamp for Blackstock's signature; it was ruled that the word "I" made the note several as well as joint; and, secondly, that the necessity of an additional stamp would depend upon this, viz. whether Blackstock's signature was part of the original bargain before plaintiff took the note, or an afterthought, and it appearing to have been part of the original bargain, verdict for plaintiff.

[(a) Chaplin made a note for $1500 payable to Bennet. Before the note was delivered to Bennet, Adams signed the following agreement written upon the note. "I acknowledge myself holden as surety for the payment of the demand of the above note." Bennet's administrator brought an action against Adams declaring, 1. Upon a note signed by the defendant solely; 2. On a note made by him jointly and severally with Chaplin. Parsons C. J. delivered the opinion of the Court. "The defendant is an original party to the contract. This mode of signing entitles the defendant, if he pays the note, to an indemnity from Chaplin. But, as to the intestate, they must be considered as joint and several promisers. The legal effect of this note does not differ from one written For value received I promise to pay,' &c., and signed by one with

[So if a person, not the payee of a note, endorses his name upon it at the time it is made, intending to make himself responsible to the payee, he is liable as an original promiser. (a)]

principal annexed to his name, and by another with surety thus annexed." Hunt v. Adams, 5 Mass. R. 358. In another action between the same parties on another contract not materially varying from the above, the court continued of the same opinion. Hunt v. Adams, 6 Mass. R. 519. Taber, April 19th, 1806, made a note payable to White on demand. The note was endorsed, "Ap. 19th, 1806. For value received we jointly and severally undertake to pay the money within mentioned to the said Wm. White. John Coggeshall Jr. John H. Howland." White sued Howland on the note, and in one count as a several original promiser. No demand or notice was proved; and Taber became insolvent in 1810. Curia. "We are all satisfied that this case is within the reason of Hunt v. Adams (supra) and that the effect of the defendant's signature is the same as if he had subscribed the note on the face of it as a surety. He is then answerable as an original promiser, equally with Taber, and the count which charges him as a several original promiser is supported by the note in its actual form." White v. Howland, 9 Mass. R. 314. See also Carver v. Warren, 5. Mass. R. 545.]

[(a) Moies sold an estate to B. Bird, who agreed to pay for it in part by a note with a sufficient endorser, and proposed to give one of his brothers, Abraham or William, as an endorser or security on the notes. The deed was given, and B. Bird gave his notes payable to Moies. A day or two afterwards one of the notes was brought to Abraham Bird to procure his endorsement. He at first refused to endorse it, saying that it was not negotiable; but finally said he would write his name, to make Moies easy, but would not be accountable for a farthing. Moies sued A. Bird, declaring on a promissory note made by him. Sewall C. J. directed the jury that if Moies conveyed the land to B. Bird upon the expectation of security by the endorsement of Abraham or William Bird as guarantor, and had obtained the defendant's endorsement in consequence of that understanding, they might find for the plaintiff, unless the endorsement had been in fact made with some different intent; and that the endorsement in blank by the defendant was of the same effect as a signature upon the face of the note under the name of B. Bird, in which case the defendant would be considered as surety for B. Bird. On motion for a new trial, Parker C. J. who delivered the opinion of the Court, said, that the effect of the defendant's signature "was to make him absolutely liable to pay the note. He leaves it to the holder to write any thing over his name, not inconsistent with the nature of the transaction. The holder chooses to consider him as a surety binding himself originally with the principal: and we think he has a right so to do." Moies v. Bird, 11 Mass. R. 436.

The plaintiff in one count declared that in consideration of plaintiff's selling Brundige a horse, the defendant guarantied the payment of Brundige's note, given in payment. The evidence was a note made by Brundige payable to the plaintiff or bearer, and endorsed in blank by the defendant. The plaintiff offered to prove the sale of the horse, upon the defendant's agreeing to become surety for the payment, and the making of the note in pursuance of that agreement. Spencer C. J. delivered the

« AnteriorContinuar »