The Practice in Courts of Justice in England and the United States - Conway Robinson - Google Books

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4. Where demand must be made of a bill or note not payable at

a particular place,

5. Of demand at the particular place where bill or note is pay-

6. When bill refused by drawee, is accepted for honour, what

presentment for payment is sufficient,

7. Of dishonoured instruments; which of them must be pro-

tested; as to which of them the protest is evidence of dis-

8. When the formal protest may be drawn up,

8. What facts should be set forth in the protest as to the dis-

honour; how far the protest or a copy of it is generally

proof of those facts,

9. Notary's certificate, when founded on the acts of others, of

less weight than when founded on his own act,

CHAP. 22. Of notice of dishonour; how given and

proved; how proof of notice dispensed with.

on proof of promise to pay,

1. Notice to drawer of bill dispensed with when bill is accepted

for his accommodation,

2. Acceptance of bill for drawer's accommodation, does not dis-

pense with notice to endorser,

3. Other circumstances which will or will not dispense with no-

tice. Among others, effect of assignment of property of

maker or acceptor for endorser's security,

4. How endorser may by agreement waive the necessity of notice,

5. When notice is not dispensed with, what is the effect of fail-

ing to give it. Who should give the notice; and to whom

it should be given,

6. How notice is given; in some cases it must be personally

served; in others it may be sent by mail,

7. When notice is sent by mail, how the letter must be directed,

8. How soon notice must be given or sent,

11. How proof of notice is dispensed with on proof of promise to

CHAP. 23. What damages are to be paid when bill is

1. Rule of the law merchant,

2. Regulation in United States by statutes. Provision made by

statutes of Maryland and Pennsylvania,

3. Amount of damages fixed by statutes of New York, Massa-

chusetts and Virginia,

CHAP. 24. Whether loss of a bill or note will defeat

an action on it,

1. In case of foreign bill, drawn in sets, sufficient to produce

that which was protested,

2. Established in England that action cannot be maintained on

negotiable instrument, without its production,

3. The English rule precludes an action not only on the lost bill,

but also for the demand on account of which that bill was

4. Distinction in England between instrument which was, and

instrument which was not, originally negotiable,

5. Rule established by decisions in New York, Pennsylvania

and Massachusetts,

6. Provision made in New York by statute,

CHAP. 25. Rights of the holder of a bill or negotiable

note; and liabilities of the prior parties,

1. What bill or note may be so transferred as to give the holder

a right of action thereon,

2. What is necessary to constitute a valid endorsement.

in which there was question as to the sufficiency of the deli-

3. As to the terms in which the endorsement is written; if en-

dorsement be in blank right to fill it up,

4. Where successive endorsements, which may be struck from the

bill by the holder; and of which he may avail himself,

5. What sort of interest in the bill plaintiff must have,

6. General rule as to nature of endorser's liability,

7. Endorser of a bill in the nature of a new drawer; but endor-

ser of a note not in the nature of a new maker,

8. Nature of liability on an accommodation note or bill,

9. How far endorser transfers his right, or makes himself liable

by delivery or endorsement made after instrument becomes

due. Whether there must be demand on maker and notice

10. Where a negotiable instrument is taken up by the payee, and

afterwards assigned by him, who may sue on it,

11. Holder has a right of action against any of the prior parties.

Whether the measure of recovery will be the amount of the

bill or note, where the action is against an endorser who has

received from the plaintiff less than the amount, or is by an

endorser who has been subjected to costs,

12. How far endorsee's right of action is affected by part payment,

13. How right of action against an endorser or other surety may

be defeated by discharging, or giving time to, principal. Who

is or is not regarded as principal; who as surety,

14. Effect of want of consideration as between the immediate par-

ties Rule generally as to the holder. Under what circum.

stances he may be affected,

15. How it is ascertained whether the holder has or has not paid a

consideration for the paper. Under what circumstances the

onus is on him to prove the fact,

16. Condition of holder who is shewn not to be a bona fide endor-

17. Right of one who is a bona fide endorsee for value,

18. Whether if negotiable paper be received by a person to pay or

secure a pre existing debt, he may nevertheless be regarded

as a holder for value,

19. How far a bona fide endorsee for value may be affected by the

endorsement to him being made after the paper became due,

20. Whether endorsement be before or after paper is due, an as-

signee of only part of what is due on it, can maintain no ac-

CHAP. 26. Of instruments not negotiable. Statutes of

Virginia and other states give action thereon.

in name of obligee or payee or his assignee,

1. Where by mutual agreement between debtor, creditor and a

third person, the latter takes debtor's place,

2. Where creditor assigns, and debtor promises to pay assignee,

3. Where a bond or note is sold and delivered, but no promise

made to the purchaser, nor any written assignment made to

him, what are his rights,

5. How assignment may be made by writing,

6. At common law assignee had no right to sue in his own name,

7. Change made in Pennsylvania by the act of 1715,

8. State of things in Virginia before the statutes respecting as-

signments. Effect of those statutes as it regards the assig-

nee's right to sue,

9. Right of assignee to sue under South Carolina statute,

10. Statute of Alabama similar to that of Virginia,

11. Extent to which legal title to the instrument, and legal right

of action, passes to the assignee in Kentucky,

12. Extent to which Maryland act gives a right of action to assig-

13. In Virginia, Kentucky, Maryland and Alabama, such defence

as obligor had against obligee at the time of notice of assign-

ment, may be set up against assignee,

14. In North Carolina, bonds are put on a footing peculiar to that

state. They are made negotiable. Effect thereof,

20. The rule of Marsh v. Brooks, 10 Iredell 410, important to be

considered in a state wherein bonds are not negotiable,

CHAP. 27.-In Virginia and other states, right of action

of assignee against assignor of an instrument

not negotiable,

1. In North Carolina assignment of a bond makes assignor as

much liable as if he had endorsed, and indeed as if he had

made, a negotiable note,

2. Decisions in South Carolina,

3. Statute of Maryland gives assignee right of action against as-

4. How right of action against assignor has been established in

Virginia and Kentucky,

5. Right of action rests on the ground of there being a valuable

consideration for the assignment,

6. How far consideration paid for the assignment is the measure

of recovery against assignor,

7. How contract of assignment may be modified. If the assign-

ment be of a bond or note, on which nothing is due, how far

assignor is liable,

8. If the obligor or maker fail to pay, under what circumstances

assignee's want of diligence, or failure to sue, will not affect

right of action against assignor,

9. Generally, assignee must sue obligor or maker in a reasonable

10. Suit against obligor or maker must be in the proper place,

11. Suit brought against obligor or maker must be diligently pro-

12. After judgment there must be due diligence in issuing execu-

tion to the proper county,

13. If execution be levied on property, due diligence must be used

to obtain the value of that property,

14. If there be a return of nulla bona, that generally authorizes

assignee to sue assignor,

15. Effect of taking the debtor under a ca. sa.,

16. An assignee who has a lien on the debtor's property, by deed

or otherwise, should pursue it before he proceeds against

18. Rule in Pennsylvania and New York as to right of action on

assignor's contract of guaranty,

19. Whether assignor or guarantor is liable to any other than the

party with whom he contracted. Rule in equity. Effect

of statute of Virginia,

CHAP. 28.-Action on a promise to guaranty,

4. Endorser not to be turned into maker or guarantor; and

guarantor not to be turned into maker or endorser,

6. Whether there must be notice of acceptance of
make it absolute,

5. Of guaranties in respect to the business, goods, time, amount

7. Within what time notice must be given of the acceptance of

guaranty; and of the amount for which guarantor is held

8. Necessary there should be a demand on principal, and on his
refusal notice to guarantor. Consequence of not giving it,

9. Where default in paying negotiable paper, rule as to notice to

a person who is not a party to it,

10. Whether on guaranty action will lie for a person not a party

CHAP. 29.-Action on a promise to indemnify,

1. As to consideration for promise; and legality of act against

which indemnity is given,

2. How far material to give notice to indemnifier,

3. Whether judgment against plaintiff authorizes him, before

paying it, to sue indemnifier,

4. What expenses may be recovered from indemnifier,

5. Insurance of buildings against loss by fire is in effect a con-

tract of indemnity,

RIGHT OF ACTION ON PROMISES GENERALLY; EXPRESS AND

CHAP. 30.-Consideration required to support a promise, 304

1. General rule as to necessity of consideration,

2. What consideration is insufficient; what is sufficient,

3. Past consideration not sufficient unless benefit was conferred

at defendant's request,

4. Rule in Lord Mansfield's time as to moral obligation being a

sufficient consideration,

5. Lord Mansfield's decisions remarked on by Lord Denman,

6. View of Tindal, C. J., on the question whether an executed

consideration will support a promise, although express, other

than that which the law itself would have implied,

7. Effect of a promise by a bankrupt to pay a debt from which

he was discharged. Conclusion as to how far such, or any

other, promise can be supported by a consideration from

which the law could not imply a promise,

8. Whether past cohabitation is a sufficient consideration for a

promise. Action may be maintained on promise to pay for

support of child, if not for board of mother,

9. If consideration be legal, court may decline enquiring into its

adequacy. Meaning of the rule that there must be adequate

consideration for agreement in restraint of trade,

10. Under what circumstances a game or wager was or was not

valid at common law. Changes made by statute.

cases of insurance as to assured having an insurable interest.

How far a life insurance is deemed a wager policy,

11. Thing to be done must be legal. Court will not enforce con-

tract forbidden by the common or statute law,

12. Cases in which it was considered the statute did not mean to

prohibit the contract,

13. Distinction taken in Faikney v. Reynous, 4 Burr. 2069, and

Petrie v. Hannah, 3 T. R. 418, between mala in se and mala

prohibita is now exploded. The repayment of money lent

to accomplish an illegal object cannot be enforced,

CHAP. 31.-What is generally necessary to fix liability

on a promise, express or implied. How con-

tract may be made by an agent or through

1. Defendant must have contracted expressly or impliedly,

2. If contract is not by defendant personally, it must be by a

person authorized to bind him. General rule as to agent's

3. General rule as to agency applied in the particular instance of

4. Rule as to agency when a man's wife has contracted; or he

has allowed supplies to any other female,

5. Rule as to agency in the case of a private company or of a

club or committee,

6. Distinction between a binding engagement and an unaccepted

proposal. How contract may be completed by the post.

From what time bargain is closed by acceptance of offer,

CHAP. 32.-Action for breach of a promise to marry;

or for things furnished to a wife and child,

1. For breach of promise to marry,

2. Marriage gives wife a right to be supplied with necessaries,

notwithstanding husband become insane,

5. Husband not liable for supplies to wife living apart from him

without his consent,

3. How far husband is liable on his wife's contracts, when they

are living together,

4. How far husband is liable for supplies to wife during his tem-

porary absence,

6. When wife is living apart from husband, with his consent, how

his liability for supplies is affected by her having a provision,

7. Liability of husband for supplies to wife whom he turns out of

doors without provision,

8. Wife's adultery exempts husband from liability,

9. Whether at common law there was a liability for support of

one's child, parents or grand-parents. Of the statute of 43

Eliz. c. 2, § 7, and statute of Virginia,

10. Right of action against father for support of child rests on his

11. Clearly no implied contract by father to pay for goods furnish-

ed or services rendered to child who has attained twenty-one,

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