CH. 20, Art. 1. -2 P. W. Darley v. future accession to it, unless expressly mentioned. 6 Ves. jr. 385, Drew v. Dennison; 9 Ves. jr. 87, Mitford v. Mitford. 15. When land or stocks are devised, or conveyed, or 2 Vern. 659. transferred to the wife for her separate use, and no trustees interposed, her husband becomes her trustee by construction of law, and is accountable in chancery accordingly. And there is no difference where a trust is created by the act of the par3 Ves. jr. 166, ty, or by act of law. Rolfe v. Budder, Bunb. 187; 3 Atk. 399; 9 Ves. jr. 369, Rich v. Cockell; and equity will not only raise a trust, but will infer some gifts from the nature of them to be to her separate use, though not expressly so made. 3 Atk. 393, Graham v. Londonderry. But the intention must be clear, to destroy his marital rights in her property. 5 Ves. jr. 517, Lumb v. Milnes; do. 545, Hartley v. Hurle; 3 P. W, 355; Atk. 278; 3 Atk. 72, 270; 3 Br. Ch. R. 340; 2 Vern. Brown v. Clarke. 385. CHAPTER XX. As to evi see Ch. 90, tween the ance, index. ASSUMPSIT. BILLS, NOTES, AND NEGOTIABLE CONTRACTS. ACTIONS of assumpsit grounded on bills of exchange, and dence herein other negotiable contracts have become very numerous in the United States, as well as in the British dominions, from an immense increase of trade and commerce within a century past. And law books and adjudged cases on these subject have still much more increased. Even as late as 1770, all the English law books then published upon the subject of commerce and negotiable contracts might have been read, and even studied in a few weeks by an English or an American lawyer. These in forty years since have probably increased_tenfold, Ch. 80 to Ch. and are still rapidly increasing in bulk and value. To bring into view the laws at large on these important subjects would require thousands of pages; whereas only leading principles, illustrated by a few adjudged cases, can be here noticed, these briefly stated and selected from the best authorities. See Chose in Action, Ch. 24. As to evidence, see Evidence. 100. 2 Bl. Com. 466, 467 Cunn, 294, 316. 12 Mod. 106. 1 Salk. 130. -1 Cranch ART. 1. General principles. A bill of exchange is a written request, and a simple contract, made by one man on another, desiring him to pay monies to a third person, on the drawer's account, and is foreign, when drawn on a merchant abroad, and ialand, when drawn on one in the kingdom or government by a drawer there. A foreign bill was originally CH. 20. negotiable, and is an instrument of the law merchant. This Art. 1. law merchant is a part of the law of nations, in which a consideration is not material to make a contract valid, and is part of the common law of England and America. 2. By these English statutes of William the Third and 9 and 10 W. Anne, inland bills are put on the same footing as foreign ones; III, Ch. 17."so that now in law, there is no manner of difference between them." 3 and 4 of Anne, Ch. 9. 407. 3. No precise form of words is necessary to make a bill 2 Bl. Com. or note, and the bare drawing a bill makes the drawer a mer- 12 Mod. 30. chant as to that bill. 2 Adamson. 4. The acceptor of a bill of exchange, when accepted, is Burr. 669, the original debtor, and the drawer is liable only on his de- 678, Hylen v. fault. And when endorsed it is a new bill between the en- 2 Show 504. dorser and endorsee, and there is no difference between -1 Salk. 133. foreign and inland bills; and the endorsee may sue the endor- Phil. ser, though there be no demand upon, or even inquiry after the drawer, and declare accordingly. Evid. 12. -2 Bl. Com. 467. 5. But the maker of a note is as the acceptor of a bill, 9 Mass. R. 6. and there must be a demand on him, and notice thereof to the endorser before he can be resorted to by the holder: the maker is the real debtor. 30. § 6. A promissory note is a direct and plain engagement Imp. 389.in writing to pay monies specified, at the time therein limited, Kyd on Bills to a person therein named, or sometimes to his order, or to bearer at large. And by the 3d and 4th of Anne these money notes are made negotiable, assignable, and endorsible in like manner as inland bills of exchange are. considera Adamson. 7. Before a note is endorsed, it is wholly an instrument See above, of municipal law, and a want of a consideration is a clear tion.-2 Burr. objection; but when it is endorsed, then it is as a bill by the 676, Hylen v. statute, and is governed by the law merchant. It then begins to resemble a bill, the endorsement is the payee's order on the maker, his debtor by the note, to pay the contents to the endorsee. The maker by drawing the note has promised and accepted to pay; and he now stands in the situation of the acceptor of a bill, each is the original debtor, and in a bill or note endorsed a consideration is presumed. Imp. 394, Peckham v. 8. Notes and bills are always presumed to have been W. Bl. 445, made on good consideration, unless the contrary be shewn by Wond. the deft., and the plt. need not aver or prove one. This point was settled A. D. 1785, in White v. Sedwick. So also an Kyd 41. endorsement supposes a consideration. 9. But in France, by an ordinance of March 1673, not Kyd 31, 41, only" value received" must be inserted in a bill, but its kind, Guichard. whether money, merchandise, &c. Deft. may prove an illegal consideration, 1 W. Bl. 445. Сн. 20. 6 Mass. R. 263. Mandeville v. Welch, 5 Wheaton 277, 299. § 10. A negotiable note, given in consideration of a simple contract debt is a discharge of it. If several sign, and it begins, I promise &c. it is joint and several. Held, that bills of exchange, and promissory negotiable notes are distinguished 299.-Chitty from all other parol contracts, because prima facie evidence of valuable consideration, as between the original parties, and against third persons. 2 Where the owner of a chose in action assigns it, he cannot defeat the assignee's right in his suit to recover. 3. It is immaterial whether the assignment be good at law, or in equity only; this doctrine can apply only to all due on the contract assigned. The assignment and notice of it to the maker were specially replied to a plea of a release made by Welch, by whom this action was brought, for the use of A. Prior against Mandeville &c. maker. The chose in action assigned was a covenant. 6 Wheaton 11. When the second day of grace falls on Saturday, it 102, Bussard is the last day of grace, and notice to the drawer of a bill on v. Levering. that day, of non payment, after demand on the acceptor on that day, is sufficient. 2. Post-office notice. So it is sufficient notice to the drawer to put proper notice into the post-office, where the persons lived in different places. 5 Wheaton 104, Lindenberger v. Beall. Young v. Bryan & al. 6 Wheaton 146, 572. Nor is such a protest evidence of the facts in it. Union Bank 2 Bl. Com. 467, 468. Imp. M. P. 390.- 2 Show 235, § 12. The same rule as to the endorser of a note, as to last day of grace. So as to post-office notice, and it is not necessary to give notice to the deft. to produce the letter giving notice, before such evidence can be admitted. 13. No protest of a promissory note, or inland bill of exchange is necessary, and the endorsee of such note of one state, may sue the endorser of another, in the Federal courts, whether the endorser or drawee can sue the maker in them or not. The note was made by one citizen of Tennessee to another, and endorsed to Bryon & al. citizens of Pennsylvania. See Ch. 187, a. 7, s. 45. This action was viewed as being on the endorser's new contract to endorsee of another state. 14. If an endorser make a writing, and there is a question if thereby he waive notice, and demand, parol proof is admissible to shew, that it was the understanding of the parties, that the demand and notice required by law to charge the endorser should be dispensed with. Protest belongs to foreign mercantile transactions only; as to them it is indispensable to make the drawer of a bill, or endorser of a note liable. foreign bills it is the evidence of demand, and has a binding effect. On ART. 2. The property considered. The payee of a bill or note has clearly a property vested in him, not in possession, but in action, by the express contract of the drawer, in case of Grant v. Vaughan, cited 1 Cranch 296.-Chitty on Bills 386, 391, 392, 399, 403, 416, 438, a note, and by his implied contract in case of a bill; to wit, that provided the drawee do not pay it, the drawer will, and this vested property when assigned, may be recovered by the assignee or endorsee in his own name. And if a note be payable to A or bearer, payment may be demanded by any bearer. It is the right or power in the endorsee or bearer, to sue the note or bill in his own name, and to his own use, that evidences the negotiability of the contract. Hence, it is only a money contract, that can be so sued, that is negotiable, or a contract to pay money alone; for one principal intent is, it pass as money from man to man, this it could not do if not payable in money. CH. 20. Art. 3. 8 Mod. 265, 294, 816. ART. 3. What is a negotiable contract. § 1. These nego 267.-10 Mod. tiable contracts, in many respects, serve the purposes of money, and differ but little from bank bills, payable to one or bearer, and they are made negotiable by certain English statutes adopted in many of the United States, expressly or in practice. See Ch. 24, Chose in Action. § 2. These statutes provide as follows: First, that of William III. enacts, that "all and every bill, 9 & 10 Wm. or bills of exchange, drawn in, or dated at and from any trad- 3, 17. ing city or town, or other place in the kingdom of England &c., of the sum of £5 sterling or upwards, upon any person or persons, of or in London, or any other trading city, town, or any other place, (in which said bill or bills of exchange shall be acknowledged and expressed the said value to be received) and is, or shall be drawn, payable at a certain number of days, weeks, or months after date thereof, that from and after presentation and acceptance of the said bill or bills of exchange, (which acceptance shall be by the underwriting the same under the party's hand so accepting,) and after the expira tion of three days after the said bill or bills shall become due, the party to whom the said bill or bills are made payable, his servant, agent, or assigns may and shall cause the same bill or bills to be protested by a notary public, and in default of such notary public, by any other substantial person of the city, town, or place in the presence of two or more credible witnesses; refusal or neglect being first made of due payment of the same, which protest shall be made or written under a fair copy of the said bill of exchange, in the words and form following: Know all men, that I, A. B. of the said have demanded payment of the bill of which the above is a copy, which the said did not pay, wherefore I, the said do hereby protest the said bill. Dated this day of By the second and third sections of this act, notice hereof CH. 20. 3 & 4 of Anne. These sta- adopted in must be given in fourteen days, to the party from whom the bill was received, "who is, upon producing such protest, to repay the said bill or bills, together with all interest and charges," from the day of the protest; and if not so notified, the holder bears all losses &c. And if a bill be lost within the time for payment, then the drawer shall give another bill of the same contents to the person to whom so delivered; he giving security, if demanded, to indemnify &c. By the statute of Anne it is recited, that money notes are not negotiable, so as that the assignee may sue in his own name, and enacted," that all notes in writing, that after the first day of May 1705 shall be made and signed by any person or persons, body politic or corporate, or by the servant or agent of any corporation, banker, goldsmith, merchant, or trader, who is usually entrusted by him, her, or them, to sign such promissory notes for him, her, or them, whereby such person or persons, body politic or corporate, his, her, or their servant or agent, as aforesaid, doth or shall promise to pay to any other person or persons, body politic or corporate, his, her, or their order, or unto bearer, any sum of money mentioned in such note, shall be taken and construed to be by virtue thereof, due and payable to any such person or persons, body politic and corporate to whom the same is made payable; and also every such note payable to any person or persons, body politic or corporate, his, her, or their order shall be assignable and endorsible over in the same manner, as inland bills of exchange are or may be, according to the custom of merchants; and that the person or persons, body politic and corporate, to whom such sum of money is or shall be by such note made payable, shall and may maintain an action for the same in such manner as he, she, or they might do upon any inland bill of exchange, made and drawn according to the custom of merchants, against the person or persons, body politic or corporate, who or whose servant or agent, as aforesaid, signed the same. And that any person or persons, body politic or corporate, to whom such note, that is payable to any person or persons, body politic or corporate, his, her, or their order, is endorsed or assigned, or the money therein mentioned, ordered to be paid by endorsement thereon, shall and may maintain his, her, or their action for such sum of money, either against the person or persons, body politic or corporate, who or whose servant or agent, as aforesaid, signed such note, or against any of the persons that endorsed the same, in like manner as in cases of inland bills of exchange." And in every such action the plt. shall recover his damages and costs of suit, or if he fail, then the deft. his costs. This statute of 3 & 4 of Anne further provides, that any |