course, this merely strengthens the presumption of legitimacy; but it may still be rebutted by opposing proof.1 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.3 § 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.1 (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 (b) § 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. Ellenborough 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. ♦ Ante, vol. i. §§ 28, 344; Standen v. Standen, Peake's Cas. 32; Rex v. Bramley, 6 T. R. 330; Goodright v. Moss, Cowp. 591. 5 Bowles v. Bingham, 2 Munf. 442; s. c. 3 Munf. 599. (a) Corson v. Corson, 44 N. H. 587; Page v. Dennison, 1 Grant's Cas. (Pa.) 377; Parker v. Way, 15 N. H. 49. (b) General reputation in the family is competent evidence in a case involving legitimacy; but common report of the neighborhood is not competent. Wright v. Hicks, 15 Ga. 160. That a child was called and treated by a man and his family as his daughter is presumptive proof of her legitimacy, although the town registry of the father's marriage, as compared with the time of the daughter's birth, would contradict this. A declaration by the father that, unless he made his will, the daughter could get nothing by law, is admissible as evidence tending to prove her illegitimacy, it being for the jury to determine the sense in which he used the expression. Viall v. Smith, 6 R. I. 417. Though the declarations of the parents are inadmissible to bastardize issue born during the wedlock, they are admissible to show that the parents were not married at the time of the birth. Craufurd v. Blackburn, 17 Md. 49. (c) Or to show that the child is illegitimate. Sullivan v. Kelly, 3 Allen (Mass.), 148; Phillips v. Allen, 2 Id. 453; Hemmenway v. Towner, 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.3 (a) 1 See 1 Beck's Med. Jurisp. c. 9; Hargrave & Butler's note (2) to Co. Lit. 123,'b; 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. (a) In Town of Norfolk v. Gaylord, 28 Conn. 309, which was a bastardy suit brought by a town, the defendant having admitted sundry acts of illicit intercourse with the mother of the child, prior to the time when the child must have been begotten, and denied any subsequent acts, it was held that the jury might properly consider them in connection with the question of the paternity of the child, as showing a habit of criminal intercourse with the mother on the part of the defendant, and facilities for such intercourse, and that it was not the duty of the court, upon the request of the defendant, to exclude such facts from their consideration. On an issue to try the paternity of a bastard child, it was held that the defendant has a right to show that the child does not resemble him. State v. Bowles, 7 Jones (N. C.), Law, 579. But the complainant was not allowed, in Eddy v. Gray, 4 Allen (Mass.), 435, to prove by witnesses having no especial skill in such matters a resem 8 Johnson v. Johnson, 1 Desaus. 595. blance in the head and features between 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.1 (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 was dated at and made payable in New Jersey, and was afterwards indorsed in New York, for the accommodation of the maker, and for the purpose of procuring it to be discounted in New York, where it was discounted at a usurious rate of interest, it was held that, as against the indorser, the law of New York was the law of the contract. Weil v. Lange, 6 Daly (N. Y.), 549. And so a note dated and payable at New York and delivered in New York by mailing it to the plaintiff in Germany by his direction, was governed by the laws of New York and not those of Germany, though the original contract for a loan of money in pursuance of which the note was given was made in Germany. Heidenheimer v. Mayer, 42 N. Y. Super. Ct. 506. And to this effect is Merchants' Bank v. Griswold, 72 N. Y. 472. The locus contractus is not the place where the note or bill is made, drawn, or dated, but the place where it is delivered by the drawer or maker. Overton v. Bolton, 9 Heisk. (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 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 commonlaw remedies are pursued. in the (1.) Payee v. Acceptor, of a foreign bill. "For that one E. F., at kingdom [or, State] of on 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 plaintiff [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 dollars ant), on by his promissory note in writing, for value received, promised the plaintiff to pay him or his order 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 Las 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. (defendant), at on "For that the said 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 bill, 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 Dong. 298. order on (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 [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. |