BASTARDY.
I. ACCUSATION AND COMPLAINT.
II. PROCEEDINGS IN COURT.
III. EVIDENCE.
I. ACCUSATION AND COMPLAINT.
1. A complaint under the bastardy act is a civil suit. Knowles v.
Scribner, 57 — 495.
2. The voluntary statement of a complainant in bastardy, during
the time of her travail, without being interrogated in relation thereto,
that the child of which she is about to be delivered "is the child of
the" respondent, "and he knows it is his child," is a sufficient compli-
ance with R. S., c. 97, § 6, providing that having "been put upon the
discovery of the truth of such accusation at the time of her travail,"
she "thereupon accused" the respondent with being the father of the
child. Wilson v. Woodside, 57 — 489.
3. The complaint in a bastardy process can legally be made before
a justice of the peace. McFaddan v. £ubier, 66 — 270.
4. Or before a trial justice. Sidelinger v. BucMin, 64 — 371.
5. Copies. When a bastardy warrant is returned before, and the
respondent is required to give bond by a justice other than the one
who received the complaint copies of the complaint and warrant are
properly certified up by the justice to whom they were returned.
lb.
n. PROCEEDINGS IN COURT.
6. The objection in writing by the selectmen of the town interest-
ed in the support of the mother or child, to a settlement with the
father, by the complainant, is seasonable if made at the trial of the
respondent on the complaint. JEames v. Gray, 61 — 405.
7. When the declaration states the time when the child was begot-
ten as between two dates, the jury are authorized to find the re-
spondent guilty, on sufficient proof, though the child was begotten
outside those dates. Holbrooh v. Knight, 67 — 244.
8. The particulars of time and place are material only as bearing
upon the credit to be given the complainant as a witness. lb.
IIL EVIDENCE.
9. In the trial of a declaration in bastardy charging a married man
with being the father of the child, the complainant is not required to
BETTBEMENTS — BILLS OF LADING. 69
establish the respondent's guilt beyond a reasonable doubt. Snowies
V. Scribner, 57 — 495.
10. On the trial of a bastardy case evidence that the complainant
had the reputation of being a prostitute is inadmissible. Sidelinger
V. Bucklin, 64—371.
11. The declarations of a complainant in bastardy, made at various
times before and after her formal accusation and examination, that
the respondent was the father of her child are inadmissible, either to
show that she continued constant, or to sustain her credibility. lb.
BETTERMENTS.
1. Prior to statute of March 1, 1843, a grantee or assignee of a
tenant for life, or in dower, could acquire no right to betterments as
against the reversioner.
Otherwise as to improvements made since that time. R. S., 1871,
c. 104, § 23. Poor v. Larrabee, 58—543.
2. Conceding a right to betterments is an admission that the pos-
session during the time in which this right was acquired, was adverse.
Moore v. Moore, 61 — 417.
3. The owner of "betterments" has no interest in the land itself.
Mitchell V. Black, 64 — 48.
4. A right to "betterments" may be conveyed by parol and delivery.
Ih.
5. A conveyance of such right in land as the grantor has by pos-
session and improvement does not convey any right or interest in the
land itself, but only an equitable right to compensation in case the
owner of the soil dispossesses the owner of the improvements. lb.
6. Where one mortgages his right in land by possession and
improvement, and subsequently acquires an indefeasable title by con-
tinuous adverse possession, such title does not enure to the benefit
of the mortgagee. lb.
BILL OF SALE.
See Sale, 16.
■» â–
BILLS OF LADING.
Bills of Lading are transferable by indorsement. Robinson v.
Stuart, 68—61.
60 BILLS AND NOTES.
BILLS AND NOTES.
I.
FORM.
II.
VALIDITY.
III.
EFFECT.
IT.
ACCEPTANCE.
V.
ENDORSEMENT.
VI.
DEMAND.
VII.
NOTICE.
VIII.
PROTEST.
IX.
RIGHTS OF THE PARTIES TO THE NOTE,
(a) Indobseb v. Maker.
(b) Indorsee v. Indoeser.
(c) Between the original pajbties.
(d) Generally.
X.
PLEADING AND PRACTICE.
XI.
EVIDENCE.
I. FORM.
1. The following, "Nobleboro, October 4, 1869. Nathaniel 0.
Winslow, Cr. By labor 16| days at $4.00 per day, $67.00. Good to
bearer. Wm. Vannah," is a negotiable promissory note, payable to
bearer, on demand. Sussey v. Winslow, 59 — 170.
2. An instrument which in terms and form is a negotiable promis-
sory note does not lose that character because it contains the words,
"Said promise made for a colt this day taken ; said colt holden for
the payment of said amount." Collins v. Bradbury, 64 — 37.
3. A negotiable promissory note in common form is not rendered
unnegotiable because, when given for insurance it contains the num-
ber of the policy, and the words "this note must be jjaid at maturity
without regard to the termination of the risk " are printed across its
face. Union Ins. Co. v. Greenleaf, 64 — ^123.
4. A note payable to the order of A. B. is equivalent to one payable
to A. B. or order. Howard v. JPahner, 64 — 86. Durgin v. JBartol,
64—473.
5. Not Negotiable. A written promise to pay the plaintiff
Insurance Co. the sum of two hundred and twenty-five dollars, and
such other sums as may arise as additional premium on an insurance
policy, is not a promissory note, because not for a sum certain. Lime
Hock Ins. Co. V. Hewitt, 60 — 407.
6. The payee of a negotiable note drew an order upon the maker,
directing him to pay the amount of the note to a person therein
named. The date and time of payment of the note was not stated
in the order, nor was the amount due upon the note. The order was
not presented to the maker of the note, but he was informed of it by
letter, and replied that he would pay the note to the person named in
the order. Held, that as the order was not drawn for an absolutely
certain sum, and was payable only upon a contingency, it could not
be regarded as a negotiable instrument. JVbyes v. Qilman, 65 — 589.
7. Signature. Where three names appear as the makers of a
•BILLS ASD NOTES. 61
note, with the word surety written after one of them, if this is prima
facie evidence that that one was surety for the other two, still,
parol evidence is admissible to show the true relations between the
makers of the note. Hichborn v. Fletcher, 66 — 209.
8. When one not otherwise a party to a note puts his name upon
the back at the request of the maker, and before delivery to the
payee, he becomes a co-promisor. 'Woodman v. Boothhy, 66 — 389.
9. A note as follows : "One year after date we promise to pay to
the order of O. A. S. Maybury one thousand dollars, value received,
and interest at eight per cent, per annum. George Moore, Treas. of
Mechanic Falls Dairying Association," is the individual note of
George Moore. The use of the words "we promise" instead of "I
promise," is not material. Mellen v. Moore, 68 — 390.
10. A note running "I promise," signed J. T. H., treas. St. Paul's
Parish, is the individual note of J. T. H. Sturdivant v. Hull,
59—172.
11. Attestation. Whether an attestation upon the face of a
note should apply to a signature upon the back of it, unless the attes-
tation clause expressly so states, may be doubtful. Ulach v. Rogers,
68—574.
12. When Payable. A note containing merely a promise to pay,
but stating no time of payment, or that it is to be paid on demand, is
payable on demand. Paine v. Caswell, 68 — 80.
13. Where. When no place of payment is named in a note the
makers are to be regarded as undertaking to pay it in the State where
it was made. Stickney v. Jordan, 58 — 106.
II. VALIDITY.
14. When no place of payment is named in a note, it is payable at
the place where it is made, and must be construed according to the
law of that place. Stickney v. Jordan, 58 — 106.
15. The liability of the maker of a promissory note must be deter-
mined by the instrument alone. Sturdivant v. Hull, 59 — ^172.
16. CoNSiDBEATioN. Where the defendant, in accordance with the
terms of a compromise agreed upon between the parties, paid to the
plaintiff the amount claimed of him, except fifty dollars, and after-
wards the defendant voluntarily gave the plaintiff his note for the
fifty dollars remitted in their settlement, held, there was no consider-
ation for the note. Phelps v. Dennett, 57 — 491.
17. The defendant's husband borrowed fourteen hundred dollars of
the plaintiff, for which he then gave his promissory note, and, at the
same time agreed to procure a good additional signer the next day.
Eighteen months afterwards, in the sick room of the husband where
he was confined to his bed in his last sickness, and four days prior to
his death, the defendant, without receiving any consideration there-
for, in the absence of the plaintiff, in ignorance of her husband's
agreement, but at his request, placed her name upon the back of the
note. In an action on the note against her, held, that she was not
liable. Sawyer v. Fernald, 59 — 500.
18. Where, at the request of the party with whom he deals, one
makes his promissory note (which is to be a partial payment for a piece
of work to be done for him) payable to a third party, who is a creditor
62 BILLS AJNI> NOTES.
of the party with whom he contracts for the work, and it is credited
by the payee to such party in good faith, the maker cannot set up a
failure of consideration as between himself and the party with whom
he deals, in defense of a suit upon such note, in the name of the
payee. South Soston Iron Co. v. Brown, 63 — 139.
19. DivoECH. Notes given in settlement 6i alimony while pro-
ceedings for divorce are pending, deposited before, to be delivered
after, a divorce is decreed, are valid, if there be no collusion to pro-
cure the divorce. Burnett v. Paine, 62 — 122.
20. Given to Suppress a Ceiminal PEOSECtrTioisr. A note given
for no other purpose than to aid in the suppression of a criminal
prosecution is void. Morrill v. Goodenow, 65 — 178.
21. Condition. A note, payable "when I sell my place where I
now live," is also payable absolutely, and if the maker by his indebt-
edness suffers a levy to be made upon the place so that he is unable
to sell it, his liability upon the note at once accrues. Crooker v.
Holmes, 65 — 195.
22. When promissory notes are given for a conveyance of a patent
right, and, at the same time, a contract of sale of the right is made
and signed by both parties, which provides that if there shall be de-
fault in either or any of the payments, then the deed shall become
void and the purchaser shall forfeit the money paid, the condition is
for the benefit of the seller only. The purchaser after part payment
of the notes cannot elect to consider the contract void and refuse to
pay the remainder of the notes. Ockington v. Law, 66 — 551.
28. The payee of a note agreed with the maker that if he would
pay a certain sum the time of payment of the balance should be ex-
tended until the maker could realize enough out of the clothes pin
business to pay the note, and accordingly the maker did pay the sum
agreed upon to the payee. Held, that the agreement did not post-
pone the payment of the note, indefinitely at least, until it. appeared
that the maker had made proper exertions to realize the money from
the business, that the burden of proof upon this point rested upon
the maker, that the extension, if made, would only be for a reasonar
ble time, and that, in the absence of proof as to the profits of the
business, it could not be said that a few months (4) was not a reason-
able time. Ih.
24. Alteration. A change of a note for five hundred dollars to
one for four hundred, is a material alteration, and if made without
his consent wiU discharge a signer or indorser. Hewins v. Carqil,
67—554.
25. Featid. In an action upon a promissory note given by a mother
in settlement of a claim for an alleged assault by her son upon the
payee, an instruction that if the note was given for the purpose of
compounding a felony, or if it was obtained by the false and fraudulent
representations as to the extent of the injuries, the payee and other
persons conspiring to extort money from the defendant, then she was
not liable, was held correct. Thompson v. Hinds, 67 — 177.
26. The plaintiff, having money of B. in his hands upon which he
had a lien to secure himself against a liability to C, on account of a
debt due from B. to C, paid the money over to the defendant at the
request of B. and took for it the note in suit, which he was to hold
as security for the same claim for which he held the money. Subse-
BILLS AND NOTES. 63
quently, on tlie same day the debt due C. from B. was settled by the
latter. Hdd, that by this payment the note was released from
any lien the plaintiff had upon it, that the plaintiff having paid over
the money at the request and as the agent of B. would not be liable
to him for it, but only for what was received in its place, that the de-
fendant was liable to B. on the note, and that the plaintiff could not
recover' upon it. Bean v. Dolliff, 67 — 228.
27. CoNsiDEEATiON. INSURANCE. When the charter of a mutual
insurance company authorizes it to receive, for the better security of
dealers with the company, approved notes in advance from persons
intending to receive j)olicies, to allow the makers of such notes a
compensation therefor, to surrender the notes to the signers when the
interest of the company requires and the safety allows, and to nego-
tiate the notes when required for the purpose of paying claims or
otherwise, premium notes given for open policies of insurance, in
accordance with the charter, may be enforced by the company, or by
the receivers in case of its insolvency, when necessary to pay the
debts of the company, although no insurance has been effected under
the policy for which the notes were given. Howard v. Palmer, 64 — 86.
28. So also may notes given in renewal of such premium notes.
Howard v. Hinkley and E. Iron Co., 64 — 93.
29. When premiums have been earned by the company while the
note has been running the maker of the note is not liable for the pre-
mium in addition to the note. Maine Mut. Ins. Co. Y.Slunt, 64 — 95.
30. But if the premiums have been paid in cash, the maker of the
note can not have them deducted from the amount due on the note.
Howard v. Hinkley and E. Iron Co., 64 — 93.
31. The fact that the insolvency of the company rendered it unable
to perform its agreement to furnish insurance for the makers of the
note does not change the legal status of the note. Hinkley and E.
Iron Co. V. Maine Mut. lis. Co., 66 — 118.
32. liTor is it competent for the trustees of the company which has
received such notes for the better security of those concerned, in lien
of capital stock, to surrender such notes to the makers thereof upon
no other consideration than their agreement to claim nothing of the
company for their use, if the surrender will operate to the injury of
the creditors of the company. Maine Mut. Ins. Co. v. Pickering.,
66—130.
33. The maker of a premium note given to a mutual insurance
company for the nominal premium upon an open policy executed to
cover such risks as may be afterwards indorsed thereon, is liable to
the company on such note, only to the amount of the actual pre-
miums assumed by the company and indorsed thereon. Maine Ins.
Co. V. Stockwell, 67—382.
34. Whether a premium note is given in the usual course of busi-
ness for an open policy, or is given under the charter for the better
security of dealers with the company, is a question of fact for the
jury. lb.
See Post, 87, 88.
III. EFFECT.
35. The acceptance of a negotiable promissory note for a pre-exist-
64 BILLS AND NOTES.
ing debt, if the note is made payable at a future day, necessarily and
by operation of law, suspends the right of the creditor to enforce
payment of his debt till the pay day of the note arrives. Andrews
V. Marrett, 58 — 539. Thompson v. Gray, 63 — 228. York v. Pier-
son, 63—587.
36. An accepted bill of exchange is prima facie evidence of pay-
ment of the debt for which it is given, aliter, as to an unaccepted
bill. Strang v. Hirst, 61 — 9.
37. An accommodation indorser of a negotiable promissory note
can not recover of the maker the amount of the note, on the ground
of payment thereof by another note, unless it appears that the second
note was given under such circumstances as to constitute it a pay-
ment by the plaintiff. Lentell v. Getchell, 59 — 135.
38. Thus, the plaintiff, at the request and for the accommodation of
the defendant, became second indorser of a promissory note made
payable to the order of, and signed and indorsed by the defendant.
At maturity the note was taken up by one of like tenor, signed and
indorsed by one Thompson, and further indorsed by the plaintiff and
one Sumner. When the second note matured, it was taken up by a
note of like tenor, signed and indorsed by Sumner, and further in-
dorsed by the plaintiff who paid it at maturity. While the second
note was outstanding, and before its maturity, the plaintiff sued the
defendant, claiming to recover for payment of the latter's note, and
interest on the money paid ; held, that the a:ction could not be main-
tained, in the absence of proof, that the second note was given as
payment by the plaintiff. lb.
39. A negotiable note given to an insurance company for premiums
for policies issued for the benefit of whom it may concern, by the
person receiving the policies, is prima facie payment thereof, and
the company after receiving such note can not afterwards resort to
the person for whose benefit the insurance was effected, although
such person has not in fact paid the premiums to the person giving
the note to the company therefor. Union Ins. Co. v. Grant, 68 — 229.
See Payment, 7, et. seq.
IV. ACCEPTANCE.
40. Conditional. A letter from the drawee to the payee of an
order, saying he should not pay any orders of the drawer until settle-
ment with him, and that if there is anything over he will keep it back
for that purpose, is a conditional acceptance. Stevens v. Androscog-
gin W. F Co., 62—498.
41. A conditional acceptance becomes absolute upon the performance
or happening of the condition. lb.
42. When the acceptance of an order is conditional the assent of the
holder may be presumed from the fact that he allows the drawee to
retain the order, keeps the acceptance himself, and neglects to other-
wise secure his debt for which the order was given. lb.
43. The payer of a negotiable note drew an order upon the maker
directing him to pay the amount of the note to a person named in the
order. The date and time of payment of the note was not stated in
the order, which stated that the amount "was" eight hundred dollars.
The order was not presented to the maker of the note but he was inform-
BILLS AOTD NOTES. 65
ed of it by letter and replied in effect that h.e would pay the note to
the person in whose favor the order was drawn. Held, that if there was
an acceptance it was a conditional one. Noyes v. Gilman, 65 — 589.
V. INDOESEMENT.
44. Indoksembnt merely to pass the title. It is competent for
one who has indorsed a negotiable promissory note in blank, in a suit
brought against him by his immediate indorsee, to show in defense,
that he indorsed the note merely to pass the title, and that the under-
standing between the parties was, that the defendant's indorsement
was made solely for the purpose of transferring the note, and that he
assumed no liability, conditional or otherwise, thereby. Patten v.
Pearson, 57 — 428.
45. When the plaintiff's testimony shows enough to justify the jury
in finding that the indorsement was made for such purpose only, and
that such an understanding did subsist between the parties, it is erron-
eous to instruct the jury to find for the plaintiff, if they are satisfied
that the note was indorsed by the defendant prior to its delivery to
the plaintiff. lb.
46. By Coepoeation. Where a note made payable to a corporation
is purchased of the maker by a third person, the corporation has the
power to use its name, in the indorsement of the note, to enable the
purchaser to maintain a suit against the maker in his own name.
Chase v. Hathorne, 61 — 505.
47. This right or power may be exercised by a savings bank as
well as any other banking institution. lb.
48. When the president of an insurance company has power by a by-
law to adjust all losses or claims against the company, his indorsement of
a premium note belonging to the company for the purpose of paying a
debt due from the company to the indorsee, and which does have that
effect is prima facie valid,' and passes the title to the note, it not
appearing that the company object to the indorsement, notwithstand-
ing another by-law of the company authorizing him to indorse notes
when authorized by the directors. Union Ins. Co. v. Greenleaf, 64
—123.
49. Joint oe Several Indorsement. When several signatures
appear upon the back of a negotiable note, below that of the original
payee, the prima facie presumption is that the signers are successive
indorsers in the order in which the names appear, but this presumption
may be rebutted by proof of any other contract between them, express
or implied. Coolidge v. Wiggin, 62 — 568.
50. The rule that when the names of several persons appear below
that of the original payee, upon the back of a negotiable promissory
note, the prima facie presumption is that they are successive indorsers,
in the order in which their names appear, applies to paper indorsed
for the accommodation of the maker. lb.
51. Evidence that the maker of a negotiable promissory note pre-
sented it to a bank for discount indorsed by the payee and another
person, and that upon the refusal of the bank to discount it the maker
procured another indorser who knew the others to be accommodation
indorsers, upon which the note was discounted, does not show a joint
66 BILLS AND NOTES.
undertaking, and the last indorser, having paid the note may recover
of any prior indorser. lb.
52. Bt Maebied WoMAif. When a negotiable promissory note pay-
able to a single v^oman is transferred by her for a valuable considera^
tion and delivered to the assignee without indorsement, and subse-
quently she marries the maker of the note, her indorsement of the
note after the marriage is effectual to transfer the legal title to the
assignee. Cruptil v. Some, 63 — 405.
53. Bt Bankrupt. A bankrupt, the payee of a negotiable biU
or note, who before bankruptcy sells and delivers the same without
indorsing it, may indorse it after bankruptcy so that the holder may
maintain an action thereon in his own name. JSersey v. Elliot, 67 —
526.
54. Special Indoesement. When the payee of a negotiable note
signs his name upon the back under these words "I this day sold and
delivered to C. M. A. the with not ," he thereby assumes all the liar
bilities of an ordinary indorsement of the note to C. M. A. Adams v.
JBlethen, 66—19.
55. In such case the indorser cannot claim that as the contract is in
writing, and expressed, nothing more than a sale can be implied. The
contract is in part expressed, and in part implied. li.
56. The liabilities implied by indorsing a note can be qualified or
restricted only by express terms. lb.
57. If the first indorsee of a promissory note acquire a right of action
against the maker, by being a bona fide purchaser, without notice
and before maturity, he can transfer a good title as well after as before
the note becomes due. Roberts v. Lane, 64 — 108. Dillingham v.
Blood, 66—140.
58. This rule is applicable to a note given for intoxicating liquors
sold in violation of law. lb.
VI. DEMAND.
59. How Made. The actual exhibition of the note, at the time of a
demand for payment, is not necessary, if the holder has it with him
and is not requested to produce it. King v. Crowell, 61 — 244.
60. Whbee Made. A demand of payment of a note payable gener-
ally may be made upon the maker in the street, his place of business
being closed, and no objection being made to the place of the demand.
lb.
61. When no place of payment is specified on a note a presentment
at the residence of the maker will suffice, though he be out of town at
the time. Brooks v. Blaney, 62 — 456.
62. A demand at a former place of business of the maker of the
note is not sufficient to charge the indorser. lb.