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course, this merely strengthens the presumption of legitimacy ; but it may still be rebutted by opposing proof. And if they have cohabited together, yet this does not exclude evidence, that the husband was physically incapable of being the father. But if the child was begotten during a separation of the husband and wife a mensa et thoro by a decree, it will be presumed illegitimate; it being presumed, until the contrary is shown, that the sentence of separation was obeyed. But no such presumption is made, upon a voluntary separation. § 151. Husband and wife incompetent to prove.

The husband and wife are alike incompetent witnesses to prove the fact of nonaccess while they lived together. But they are competent to testify, in cases between third parties, as to the time of their own marriage, the time of the child's birth, the fact of access, and any other independent facts affecting the question of legitimacy.* (a) The husband's declarations, however, that the child is not his, are not sufficient to establish its illegitimacy, though it were born only three months after marriage, and thereupon he and his wife had separated, by mutual consent.5 (6)

§ 152. Period of gestation. In regard to the period of gestation, no precise time is referred to, as a rule of law, though the term of two hundred and eighty days, or forty weeks, being nine calendar

1 Ibid. See also Commonwealth v. Striker, 1 Browne, App. p. xlvii. ; 3 Hawks, 63; 1 Ashmead, 269.

2 Per Ld. Ellen borough in Rex v. Luffe, 8 East, 205, 206 ; Foxcroft's Case, Id. 200, n. 205. This case, however, is more fully stated and explained in Nicholas on Adulterine Bastardy, pp. 557–564. In case of access of the husband, nothing short of physical impotency on his part will serve to convict a third person of paternity of the offspring. Commonwealth v. Shepherd, 6 Binn. 283. (c)

8 St. George's v. St. Margaret's Parish, 1 Salk. 123 ; Bull. N. P. 112. 4 Ante, vol. i. $$ 28, 344 ; Standen v. Standen, Peake's Cas. 32 ; Rex v. Bramley, 6 T. R. 330 ; Goodright v. Moss, Cowp. 591.

6 Bowles v. Bingham, 2 Munf. 442 ; s. c. 3 Munf. 599.

(a) Corson 4. Corson, 44 N. H. 587 ; daughter could get nothing by law, is ad. Page v. Dennison, 1 Grant's Cas. (Pa.) 377; missible as evidence tending to prove her Parker v. Way, 15 N. H. 49.

illegitimacy, it being for the jury to deter(b) General reputation in the family is mine the sense in which he used the excompetent evidence in a case involving pression. Viall ». Smith, 6 R. I. 417. legitimacy; but common report of the Though the declarations of the parents neighborhood is not competent. Wright are inadmissible to bastardize issue born v. Hicks, 15 Ga. 160. That a child was during the wedlock, they are admissible to called and treated by a man and his family show that the parents were not married at as his daughter is presumptive proof of the time of the birth. Craufurd v. Black. her legitimacy, although the town registry burn, 17 Md. 49. of the father's marriage, as compared with (c) Or to show that the child is illegiti. the time of the daughter's birth, would mate. Sullivan v. Kelly, 3 Allen (Mass.), contradict this. A declaration by the · 148 ; Phillips v. Allen, 2 Id. 453 ; Hem. father that, unless he made his will, the menway v. T'owner, 1 Id. 209.

months and one week, is recognized as the usual period. But the birth of a child being liable to be accelerated or delayed by circumstances, the question is purely a matter of fact, to be decided upon all the evidence, both physical and moral, in the particular case. 1

§ 153. Void marriage. Bastardy may also be proved by showing, that the party was the issue of a marriage absolutely void; as, if the husband or wife were already married to another person, who was alive at the time of the second marriage. So, by showing that the child was begotten after a decree of divorce a vinculo matrimonii. But if the marriage were only voidable, and not ipso facto void, the issue are deemed legitimate, unless the marriage was avoided by the parties themselves, in the lifetime of both.2 After the lapse of thirty years, and after the death of all the parties, legitimacy will be presumed on slight proof.” (a)

1 See 1 Beck's Med. Jurisp. c. 9; Hargrave & Butler's note (2) to Co. Lit. 123,ʻb; 4 Law Mag. 25-49 ; Nicholas on Adulterine Bastardy, pp. 212, 213 ; The Banbury Peerage Case, Id. 291–554; The Gardner Peerage Case, Id. 209 ; Phillips v. Allen, 2 Allen, 453.

2 Co. Lit. 33 a ; 1 Bl. Comm. 424. 3 Johnson v. Johnson, 1 Desans. 595.

(a) In Town of Norfolk v. Gaylord, 28 blance in the head and features between Conn. 309, which was a bastardy suit the child and defendant. Proof of sexual brought by a town, the defendant having intercourse between the parties, which took admitted sundry acts of illicit intercourse place three years previous to the time when with the mother of the child, prior to the the child was hegotten, has been held adtime when the child must have been be- missible as bearing upon the probability of gotten, and denied any subsequent acts, it the alleged sexual intercourse which is the was held that the jury might properly subject of the prosecution. Thayer v. Daris, consider them in connection with the 38 Vt. 163. When an action is brought question of the paternity of the child, as under a statute to prove the paternity of a showing a habit of criminal intercourse bastard, and to compel the father to conwith the mother on the part of the de. tribute to its support, proof by a preponfendant, and facilities for such intercourse, derance of evidence is sufficient to make and that it was not the duty of the court, out the case. Knowles v. Scribner, 57 upon the request of the defendant, to ex- Me. 495, overruling Thayer v. Boyle, clude such facts from their consideration. 30 Me. 475; People v. Christman, 66 In. On an issue to try the paternity of a bas- 162. See also post, § 426, n.

And depotard child, it was held that the defendant sitions may be used as in other civil cases. has a right to show that the child does not State v. Hickerson, 72 N. C. 421. The resemble him. State v. Bowles, 7 Jones mother of the child may testify to her (N. C.), Law, 579. But the complainant own declarations as to the paternity of the was not allowed, in Eddy v. Gray, 4 Allen child in her travail. Reed v. Haskins, 116 (Mass.), 435, to prove by sses having Mass. 198. no especial skill in such matters a resem.

BILLS OF EXCHANGE AND PROMISSORY NOTES.

§ 153 a. What laws considered. In treating this subject, the rules of the common law-merchant, recognized in the courts of England and the United States of America, will alone be stated. But it is to be remembered, that as between the holder of a bill of exchange and the drawer or indorser, the lexi loci contractus of the drawer and of the indorser, and not of the acceptor, governs the liabilities of the drawer and of the indorser, respectively. Thus, A drew a bill in favor of B (both being residents of Demerara), upon C, resident in Scotland, who accepted it, making it payable in London; and B indorsed it to D, who afterwards became bankrupt. When C's acceptance became due, he held a bill of exchange, accepted by D. An action being brought in Demerara, by D's assignees, against A and B upon the bill, it was held, that the Roman-Dutch law, prevalent in Demerara, and not the law of England, must govern the case; and that, according to that law, the defendants were at liberty to plead D's bill as a compensation, pro tanto, of the bill in suit.' (a)

§ 154. Classification of liabilities. As the acceptor of a bill of exchange and the maker of a promissory note stand in the same relation to the holder, the note being of the nature of a bill drawn by a man on himself, and accepted at the time of drawing, the rules of evidence are, in both cases, the same. The liabilities of the parties to the instruments are of three general classes :

1 Allen v. Kemble, 13 Jur. 287, Priv. Coun.

(a) So where an accommodation note his direction, was governed by the laws of was dated at and made payable in New New York and not those Germany, Jersey, and was afterwards indorsed in though the original contract for a loan of New York, for the accommodation of the money in pursuance of which the note maker, and for the purpose of procuring was given was made in Germany. Heidit to be discounted in New York, where it enheimer v. Mayer, 42 N. Y. Super. Ct. was discounted at a usurious rate of in- 506. terest, it was held that, as against the And to this effect is Merchants' Bank indorser, the law of New York was the v. Griswold, 72 N. Y. 472. The locus law of the contract. Weil v. Lange, 6 contractus is not the place where the note Daly (N. Y.), 549.

or bill is made, drawn, or dated, but the And so a note dated and payable at place where it is delivered by the drawer New York and delivered in New York by or maker. Overton v. Bolton, 9 Heisk. mailing it to the plaintiff in Germany by (Tenn.) 762.

(1.) Primary and absolute liability; such as that of the acceptor of a bill or maker of a note, to the payee, indorsee, and bearer; (2.) Secondary and conditional liability ; such as that of the drawer of a bill, to the payee or indorsee, and of the indorser to the indorsee; (3.) Collateral and contingent liability; such as that of the acceptor to the drawer or indorser, and of the drawer to the acceptor. And, accordingly, the action upon a bill or note will be brought, either, (1) by the payee or bearer against the acceptor or maker; or (2) by the indorsee against the acceptor or maker; or (3) by the payee against the drawer of a bill; or (4) by the indorsee against the drawer of a bill, or against the indorser of a bill or note; or (5) by the drawer or indorser of a bill against the acceptor; or (6) by the acceptor against the drawer.

$ 155. Points to be proved. In these forms of remedy, the material allegations on the part of the plaintiff involve four principal points, which, if not judicially admitted, he must prove: namely, first, the existence of the instrument, as described in the declaration ; secondly, how the defendant became party to it, and his subsequent contract; thirdly, the mode by which the plaintiff derived his interest in and right of action upon the instrument; and, fourthly, the breach of the contract by the defendant. The plaintiff will not be holden to prove a consideration, unless in special cases, where his own title to the bill is impeached, as will be shown hereafter. In treating this subject, therefore, it is proposed to consider these four principal points, in their order.1

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1 In this order, that of Mr. Chitty has been followed, whose treatise on Bills, c. 5 (9th ed.), and the treatise of Mr. Justice Story on Bills, have been freely resorted to throughout this Title.

The usual declarations on bills and notes are in the following forms, according to the present practice in England, and in most of the United States, where the conimonlaw remedies are pursued.

(1.) Payee v. Acceptor, of a foreign bill. “For that one E. F., at — in the kingdom (or, State) of

--, made his bill of exchange in writing directed to the said (defendant) at and thereby required the said (defendant) in days [or, months, &c.] after sight (or, date] of that his first of exchange, the second and third of the same tenor and date not paid, to pay to the ntiff (here insert the sum as expressed in the bill ; and if the currency mentioned in the bill is one which has not been recognized, and its value not established by statute, the value in the national currency should be averred] ; and the said (defendant) on accepted the said bill, and promised the plaintiff to pay the same, according to the tenor and effect thereof and of his said acceptance. Yet," &c.

In this case the proposition of fact, to be maintained by the plaintiff, involves, first, the existence of such a bill as he describes, and, secondly, that the defendant accepted it as alleged.

(2.) Payee v. Maker, of a negotiable promissory note. “For that the said (defend. § 156. Existence of the contract. And, FIRST, as to the existence of the instrument, as described in the declaration. Ordinarily the

ant), on by his promissory note in writing, for value received, promised the plaintiff to pay him or his order dollars in — days (or, months, &c.] after the date thereof. Yet," &c.

Here the plaintiff's case is made out by the production and proof of the note.

(3.) Indorsee v. Acceptor, of a foreign bill. “For that one E. F., at in the kingdom, &c., on made his bill of exchange in writing, and directed the same to the said (defendant) at and thereby required the said defendant in days [or, months, &c.) after sight (or, date) of that his first of exchange, the second and third of the said tenor and date not paid, to pay to one G. H. or his order (as in No. 1]; and the said (defendant) then accepted the said bill; and the said G. H. then indorsed the same to the plaintiff [or, indorsed the same one to J. K., and the said J. K. then indorsed the same to the plaintiff] : of all which the said (defendant) then had notice, and in consideration thereof then promised the plaintiff to pay him the amount of said bill, according to the tenor and effect thereof and of his said acceptance. Yet," &c.

In this action the plaintiff's case is made out by proof of the acceptance, and of the indorsement, the acceptance being an admission that the bill was duly drawn. (4.) Indorsee v. Maker, of a promissory note. “For that the said (defendant), on

by his promissory note in writing, for value received, promised one E. F. to pay him or his order in days (or, months, &c.] from said date; and the said E. F. then indorsed the said note to the plaintiff; of which the said (defendant) then had notice, and in consideration thereof then promised the plaintiff to pay him the amount of said note according to the tenor thereof. Yet," &c.

Here the plaintiff's case is made out by proof of the maker's signature, and of the indorsement. (5.) Bearer v. Maker, of a promissory note. “For that the said (defendant), on

by his promissory note in writing, for value received, promised one E. F. to pay him or the bearer of said note in days (or, months, &c.] from said date; and the said E. F. then assigned and delivered the said note to the plaintiff, who then became and is the lawful owner and bearer thereof; of which the said (defendant) then had notice, and in consideration thereof then promised the plaintiff to pay him the amount of said note, according to the tenor thereof. Yet,” &c.

This declaration is proved by production of note, and proof of its execution by the defendant.

(6.) Payee v. Drawer, of a foreign bill, on non-acceptance. “For that the said (defendant), at

made his bill of exchange in writing, and directed the same to one E. F., at in the kingdom of and thereby required the said E. F. in days (or, months, &c.) after sight [or, date) of that his first of exchange, the second and third of the same tenor and date not paid, to pay to the plaintiff (as in No. 1]; and the said bill, on

-, at said

was presented to the said E. F. for acceptance, and he refused to accept the same: of all which the said (defendant) on

had due notice, and thereby became liable to pay to the plaintiff the amount of said bill on demand, and in consideration thereof promised the plaintiff to pay him the same accordingly. Yet," &c.

Here the plaintiff must prove, if traversed, the drawing of the hill, its presentment to the drawee for acceptance, and his refusal to accept it, and notice thereof to the defendant; together with the protest, it being a foreign bill. See Salomons v. Staveley, 3 Doing. 298. (7.) Indorsee v. Drawer, of a foreign bill, on non-acceptance.

“For that the said (defendant) at

made his bill of exchange in writing, and directed the same to one E. F., at in the kingdom of —, and thereby required the said E. F. in days (or, months, &c.] after sight (or, date) of that his first of exchange, the second and third of the same tenor and date not paid, to pay to one G. H. or his order (as in No. 1]; and the said G. H. then indorsed the same to as in No. 3]; and the said bill, on —, at said, was presented to the said E. F. for acceptance, and he refused to accept the same: of all which the said (defendant), on

had due notice, and thereby became liable to pay to the plaintiff the amount of said bill on demand, and in consideration thereof promised the plaintiff to pay him the same accordingly. Yet,” &c. VOL. II.

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