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1. A bail bond conditioned for the appearance of the principal, at a day different from that prescribed by law for holding the court, is void.
Allen v. White, A. R. 289. 2. A sheriff is not liable as special bail, for not having taken bail, unless notice is given him according to statute. Neal v. Gaines 1 S. 158.
3. The return of a ca. sa. not found, is the foundation of the liability of bail; and, if the process has not been regularly sued out and returned, the bail is not bound to notice it.
Brown v. Simpson, Sur. 3 S. 331. 4. The authority of justices of the peace to administer the oath required for bail in civil cases, is not limited to cases within their jurisdiction, but extends to all cases where bail is authorized.
Wykof v. Pickens & Co. 2 S. & P. 105. 5. Nothing can be pleaded by bail which could have been used by his principal in defence of the action against him.
Toulmin v. Bennett & Laidlaw, 3 S. & P. 220. 6. It is a good plea to scire facias, against bail, that the plaintiff has not given security for costs, as required by Stat. 1827.
Ibid. 7. It is not important at what time the affidavit for bail is filed, so it be made before the order for bail.
Magee v. Erwin, 5 S. & P.54. 8. An issue as to the sufficiency of the affidavit should be decided by the court, on inspection, semble. But when a jury interposed between the issue and judgment, it was held that the Supreme Court would regard the verdict as a nullity, in respect to the sufficiency of the affidavit, and presume that the judgment of the court upon the affidavit was given. Ibid 9. It is not essential in a proceeding by scire facias against bail,
to set out the affidavit or order for bail.
Gledden v. Leonard, 4, P. 194. 10. Nor is it necessary to set out the entire copy of the bail bond. The defects of a scire facias against bail, are not cured by there being a judgment upon plea withdrawn. Such an entry not being tantamount to a confession of judgment which releases all errors.
Toulmin v. Bennett & Laidlaw, 3 S. & P. 220. 11. In proceedings against bail, it is not necessary to show the issuance of a ca. sa. to a county, to which a defendant had removed after arrest, under the stat. it is only necessary that the ca. sa. should have been sued out to the county in which the defendant was arrested.
Kennedy v. Spencer, 4, P. 428. 12. Scire facias against bail, should disclose the cause of action with the certainty requisite in a declaration. So when the bond is not set out with sufficient certainty, it was held defective.
Ibid. 13. By 3 Sec. Stat. 1833, personal service of sci. fa. on recognizance against bail in a criminal case, is required to enable the State to recover against defendant, though it appear that previous to the stat. a return of "not found," on an original, and alias sci. fa. was equivalent to a personal service.
State, 7 P. 156.
1. A ginner of cotton, having agreed to receive and gin plaintiff's cotton, in preference to all others—ginned other cotton previously to part of plaintiff's. The gin and cotton having been burnt, though without negligence, the ginner is liable.
Pattison v. Wallace, 1, S. 48. 2. The corporation of Mobile, receives powder, under an ordinance, to store it out of town; which, without negligence on their part, is stolen—they are not liable to the owner, though they recive a reward for the storage.
Moore v. Mayor & Aldermen. 1 S. 284. 3. A undertook to carry flour for B to a certain place, and through mistake, deposited by the way a part of the flour, which was taken away by C. B refusing to receive a part only, C took the remainder and paid A for the whole. This amounted to a conversion by A—which would support an action of trover.
Bullard v. Young, 3 S. 46. 4. Where one receives business in the line of his occupation, the law will presume he is to receive ordinary compensation for it, and so hold him to strict diligence in discharge thereof: but, if out of his occupation, it will be regarded as a mere naked agency, in which compensation is not an ingredient.
Morrison v. Orr, 3 S. & P.49. 5. If one undertakes voluntarily to perform services without reward, such person is not liable for non-feasance.
Ibid. 6. When a service is to be performed, out of the business of the agent, for reward, he will be held only to the exercise of ordinary diligence in its transaction,
Ibid. 7. In declaration against bailee, for non-delivery of a deposit, only such averments are necessary as serve to show the grounds upon which the accountability of defendant arises; and, when the deposit is alleged to have consisted of bank notes, a particular description of them is not necessary, nor is it necessary to allege the continued possession hy defendant: for, if the deposit passed from him lawfully or without culpability, it is matter of defence which he is bound to show. Nor need it be alleged that a reward was tendered, for transportation or safe keeping of the deposit.
Moody v. Keener, 7 P. 218. 8. When notes are deposited, as collateral security, for a specific purpose, and the bailee puts it beyond his power to redeem them, when the purpose for which they were pledged is satisfied; he is fully chargeable with their conversion: and, the amount expressed upon the face of the notes, with interest to the times of conversion, and the interest on the aggregate amount, from that time to verdict, is the measure of damage.
St. John, Sur. v. O'Connell, Sur. 7 P. 466. 9. The existence of a former debt due to the bailer, does not authorize him to detain the pledge for its extinguishment--where he has received the pledge for another purpose.
Ibid. See "Common Carrier," Evidence-Ferry, Trover, Verdict.
1. The bond under the statute 1811, is properly payable to the Governor; and, the defendant is liable to an action thereon, for failing to appear, though no conviction was shown against him.
Lake & Barrow v. Governor, 2 S. 395. 2. It is not error for the court to render judgment, without a jury, for a less sum than the penalty of such bond.
Ibid. 3. Nor is such bond within the statute 1824, requiring breaches to be assigned.
Ibid. 4. A note given to a woman as a compromise, for proceedings in bastardy, is valid and of sufficient consideration. For such proceedings are not to be regarded as a criminal prosecution.
Crenshaw, 2 S. & P. 276. Judgment in a bastardy case, that “defendant pay not exceeding fifty dollars, &c.” not sustained by evidence merely of the clerk that no bond could be found in the office, but that defendant's surety said they had executed one, and did not authorize an execution.
Isaacs & Bagby v. Judge County Court, Jefferson, 5 S. & P. 402.
BILLS AND NOTES.
I. OF THE ACTION-—WHEN IT MAY BE COMMENCED, AND BY WHOM
ACTION UPON LOST NOTE.
ACCEPTANCE; AS TO THE STATUTE WHICH REQUIRES SUIT TO BE
BROUGHT AGAINST MAKER, SO AS TO CHARGE INDORSER. III. DEMAND NOTICE AND PROTEST; AND WHAT WILL CURE THEIR OMIS
SION. IV. NEGOTIABILITY OF BILLS AND NOTES; AND HOW THEIR ASSIGNMENT
IS CONTROLLED BY STATUTE; OF THE CONSIDERATION AND HOW
IT MAY BE INQUIRED INTO. V. DAYS OF GRACE, INTEREST AND DAMAGES. VI. OF THE EFFECT OF CANCELLING OR ALTERING; THE ADMISSIBILITY
OF PARTIES TO A BILL OR NOTE TO IMPEACH ITS VALIDITY-AND
OF THE EVIDENCE IN GENERAL.
VII. OF THE ADMISSIBILITY OF NOTE UNDER THE COMMON COURTS, PLEAD
I. Of the action when it may be commenced, and by whom--action upon
1. When one of the makers of a note is also payee, an action cannot be maintained by an indorser thereon, against a maker.
Ramsay v. Johnson, A. R. 418.
2. A partner assigns a note to his firm, and they afterwards assign to a third person; an action lies against them, semble.
Brown 8. Parsons v. Toomer, A. R. 370. 3. Where a bill of exchange has been drawn by a firm, in favor of one of the members thereof and indorsed to a stranger, the latter is entitled to maintain an action thereon, against the drawers, notwithstanding the fact that the payee is a partner.
Hazlehurst v. Pope, 2 S. & P. 259. 4. When payment of a debt has been received in a note, and one of the signatures proves to be a forgery-it must be tendered back as soon as the forgery is discovered, or all the liabilities thereon, duly exhausted, or the party receiving it cannot maintain an action against the party paying.
Pope v. Hickman, A. R. 29. 5. Payee of a bill after acceptance, makes a special indorsement to A -B a subsequent indorser, can have no interest therein, for there is no privity of contract.
Gosken v. McLendon, 1 S. 36. 6. Indorser of a note cannot maintain an action against the maker for the use of the indorsee, his indorsement appearing on the note; for bringing it to the use of another, is an acknowledgment that the interest is in another.
Johnson use of Stone v. English, 1 S. 169. 7. Action not maintainable, where there is an agreement by parol extending the time of payment, until the expiration of such agreement.
Fergurson v. Hil, 3 S. 485. 8. Suit cannot be commenced on promissory note on the same day on which it becomes due, and a judgment obtained in said suit
, even after appearance, would be reversed.
Randolph v. Cook f. Ellis, 2, P. 286. 9. The holder of a note, into whose hands it has passed by delivery, after several indorsements, cannot maintain an action thereon in his own name against the first indorser, the payee, on the evidence of the paper alone, though such action be commenced in a justices court.
Alday 8. Evans v. Jamison, 3, P. 112. 10. The bearer of a promissory note, is not precluded from a recovery thereon, by evidence that the maker has been garnisheed by a creditor of the payee, and a judgment recorded against him: it appearing that the maker received notice of the transfer of the note, before he answered on the garnishment.
Colvin v. Rieh, 3, P. 175. 11. The summary remedy given to parties bound for the payment of any bill of exchange, the property of the bank under the statute 1830, does not extend to ordinary business paper, but is confined alone to accommodation paper, discounted in bank.
Edgerly & Massina v. Butler & Harris, 3, P. 344. 12. The right of action of the holder of a bill becomes complete upon its non-acceptance, protest and notice. Evans v. Bridges, 4, P. 348.
13. When a note, upon which days of grace are not allowed, is drawn on Saturday, payable one day after date, such note is payable on the Monday following, and suit thereon cannot be commenced on the day of the date of the note. But this rule does not apply when the note falls due on the Sunday subsequent to the day after the date—in such case, it becomes due on the day previous to that appointed for its performance.
Sanders f. Harrison v. Ochiltree, 5, P. 73. 14. An action may be maintained on a lost note, payable to order, which is lost, when it does not appear to have been negotiated: and it is sufficient, if the declaration avers its existence, contents, and loss and that it is still due.
Chaudron v. Hunt & Norris, 3 S. 31. 15. The statute, in relation to proceedings at law on lost notes, has not deprived Chancery of jurisdiction.
Tindall v. Childress & May, 2 S. & P. 250.
II. Liability of indorser and indorsee ; of the indorsement and acceptance;
as to the statute which requires suit to be brought against drawer, so as to charge indorser.
16. As between indorser and indorsee a promissory note is a bill of exchange, and a demand of payment and notice, on the last day of grace,
Crenshaw v. McKeirman, A.R.95. 17. Although a note is indorsed without recourse, assigner is liable for fraudulent representation as to the solvency of the maker.
Hurton v. Administrator Watt, A. R. 166. 18. Indorsers cannot be viewed as co-se
-securities, and are not liable to contribution.
Brahan & Atwood v. Ragland, et al, 3 S. 247. 19. The writing of one's name on a blank paper, with the view to be made a drawer, indorser, &c. would make the party liable without limitation to a bona fide holder, for valuable consideration-semble.
Ibid. 20. When an indorser holds himself liable "should the maker fail,” this differs from a general indorsement and must be specially declared on. The word “fail” is of larger import than refuse, and is equivalent to inability or insolvency, which must be ascertained by suit or otherwise.
Davis & Co. v. Campbell, 3 S. 319. 21. Accommodation endorsers occupy, in relation to the maker of a note, the situation of sureties. Meek & Co. v. Black, et al 4 S. & P.374.
22. When one of two accommodation indorsers of a note, discounted in Bank, receives the amount from the maker and fails to take
the note, so that the other indorser was compelled to pay it. Held that the payment by maker was not to be regarded as a payment to one of two joint payees.
Ibid. 23. When maker of a note after suit, brought by the indorsee, offers to pay said indorsee part of the money, and he refuses to receive it, and it cannot afterwards be recovered, it is negligence on the part of such assignee, and he must to that extent sustain the loss.
Hightower v. Ivey, 2, P. 308. 24. That the second indorser of a promissory note, had neglected to pay it, within three years after maturity, held to be no discharge of the first indorser, in an action by the former against the latter.
Worsham v. Goar, 4, P. 441. 25. The release of an indorser does not operate as a discharge of any previous party, each indorsement being regarded as a separate contract.
Kennon v. M’Rae, 7 P. 175. 26. It is competent for the holder of paper indorsed in blank to insert the name of the indorsee, and the striking out or alteration of an indorsement, does not divest the holder of the right to sue against any prior party to the note.
Ibid. 27. A promise by indorser, to whom due notice has not been given in order to bind him, must be given with the full knowledge of the laches; but if conditional, the condition must be proved to have been performed. Ibid.
28. The trustees of a company accept a bill, to be paid when in funds, for the company ;-drawer not liable until they are in funds, and after demand, notice, &c.
Braggs, Cochran & Co. A. R. 173. 29. On a question, whether or not a letter contained an acceptance of an order, the court will look at the whole letter, and though it contains the words “ I shall accept,” it will be construed to be no acceptance, if it appear that none was intended.
Musgrave v. Hudson, 2 S. 464. 30. The payee of a bill makes an assignment of all of his effects to a trustee for creditors, afterwards he makes another assignment to another person,