Essays on the Action for Money Had and Received, on the Law of Insurances, and on the Law of Bills of Exchange and Promissory Notes

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Martin & Ogden, 1802 - Commercial law - 328 pages

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Page 57 - ... hesitation, paid the first ; and he paid the whole value bona fide. It is a misfortune which has happened without the defendant's fault or neglect. If there was no neglect in the plaintiff, yet there is no reason to throw off the loss from one innocent man upon another innocent man. But, in this /case, if there was any fault or negligence in any one, it certainly was in the plaintiff, and not in the defendant.
Page 4 - This kind of equitable action to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged. It lies only for money which, ex aequo et bono, the defendant ought to refund: it...
Page 47 - we cannot inquire into the means by which the merchant gains the money that is afterwards laid out in the purchase of goods ; if the money were obtained by robbery on the highway, and...
Page 50 - There would also be a great difficulty in saying at what time such a bill should be presented for acceptance. The courts have been very cautious in fixing any time for an inland bill, payable at a certain period after sight, to be presented for acceptance ; and it seems to me more necessary to be cautious with respect to a foreign bill payable in that manner. If...
Page 50 - I think indeed, that the holder is bound to present the bill in reasonable time, in order that the period may commence from which the payment is to take place.
Page 74 - Is it conscientious then that the defendant should keep money which he has got by their misrepresentation, and should say, though there is no alteration in my account with my principal, this is a hit, I have got the money and I will keep it? If there had been any new credit given, it would have been proper to have left it to the jury to say, whether any prejudice had happened to the defendant by means of this payment: but here no prejudice at all is proved, and none is to be inferred.
Page 34 - MANSFIELD said in that case, that what the drawer had undertaken has not been performed, the drawee not having given him the credit which was the ground of the contract.
Page 124 - When it is indorsed the resemblance begins ; for then it is an order by the indorser upon the maker of the note, (his debtor by the note,) to pay to the indorsee. This is the very definition of a bill of exchange.
Page 56 - ... in his hands, I think notice to the drawer is not necessary ; for he must know whether he had effects in the hands of the drawee or not ; *and if he had none, he had no right to draw upon him, and to expect payment from him ; nor can he be injured by the non-payment of the bill, or the want of notice that it has been dishonoured.
Page 23 - ... comment. But the master's intention was relied on by both parties. It was admitted, that if the master had deviated with a view to his private advantage alone, and without intending any benefit to his owners, it would have been barratry. The law is so, and the reason is plain: Such conduct imports fraud on the face of it. It is a cheat upon the owners, and secretly putting in his pocket what belongs to them. On the other hand, it was agreed, that if it had been for the exclusive benefit of his...

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