subject. See Walmesley v. Child, 1 Vesey, sen. 341 (1749), § 68. and Rhodes v. Morse, 14 Jur. 800 (1850).

ment if

The loss or destruction of a bill does not relieve from Presentthe duty of demanding payment. This should be accom- bill is lost. panied by an offer of indemnity, and if payment is refused, protest may be made on a copy or written particulars section 51, s-s. 8. "Neglect to offer indemnity to the maker or acceptor on demand of payment does not deprive the payee of his right of action, but it will prevent him from recovering costs, and will compel him to bear any special damages resulting from the neglect on his subsequent suit": 2 Daniel, § 1465; Thackray v. Blackett, 3 Camp. 164 (1812).

69. In any action or proceeding upon a bill, Action the court or a judge may order that the loss of the instrument shall not be set up, provided an indemnity is given to the satisfaction of the court or judge against the claims of any other person upon the instrument in question. Imp. Act, s. 70.

At common law, if a negotiable bill were lost, no action. could be maintained, either on the instrument or on the consideration for it, even if it was overdue when lost: Pierson v. Hutchinson, 2 Camp. 211 (1809); Hansard v. Robinson, 7 B. & C. 90 (1827); Ramuz v. Crowe, 1 Ex. 167 (1847); Crowe v. Clay, 9 Ex. 604 (1854).

Most of the provinces had provisions similar to the present section.

When the defendant did not demand security a decree was made for plaintiff without requiring it: Abell v. Morrison, 23 Grant, 109 (1876).

The loss or destruction of the note must be proved and indemnity offered: Waute v. Robinson, 2 Rev. de Leg. 29

on

§ 69. (1816); Beaupré v. Burn, 2 Rev. de Leg. 31 (1821). See Carden v. Ruiter 9 L. C. J. 217 (1865); Wright v. Maidstone, 24 L. J. Ch. 623 (1855).

No indemnity is required if the bill is not negotiable: Cooley v. Dominion Building Society, 24 L. C. J. 111 (1878). See Wain v. Bailey, 10 A. & E. 616 (1839).

ILLUSTRATIONS.

1. Where a note had been indorsed to an attorney's clerk and mislaid: Held, that secondary evidence of it could not be given without calling the clerk, although the attorney was called and swore to his belief of its loss: Grove v. Clarke, 5 U. C. O. S. 208 (1836).

2. When the plaintiffs declared against the drawer of a lost bill payable to plaintiff's order on a promise to pay it, but did not state any new consideration for the promise, or allege that the bill was unindorsed at the time of the loss, the declaration was held bad on general demurrer: Russell v. McDonald, 1 U. C. Q. B. 296 (1844).

3. Payee against maker.

Plea, loss of the note by plaintiff before suit, and that he hath been and is unable to produce it. Replication denying the loss only, held good: Campbell v. McCrea, 11 U. C. Q. B. 93 (1853).

4. A person suing on a lost tender an indemnity to the maker.

note should, before action,

If he neglect this, it will be

at the risk of costs to defendant: Banque Jacques Cartier v. Strachan, 5 Ont. P. R. 159 (1869); King v. Zimmerman, L. R. 6 C. P. 466 (1871).

§ 70.

BILL IN A SET.

The provisions of the Act relating to bills in a set are all found in section 70. Bills in this form are usual for remittances abroad. To prevent delay in case the first should miscarry a second is frequently sent by a succeeding mail. In Canada a set is generally made up of three parts. Each part contains a condition that the others (naming them) are unpaid. See form in Appendix.

sets.

70. Where a bill is drawn in a set, each part Bills in of the set being numbered, and containing a reference to the other parts, the whole of the parts constitute one bill: Imp. Act, s. 71 (1).

An agreement to deliver up certain sets of foreign bills which were drawn in three parts is not complied with by delivering up one of each set: Kearney v. West Granada Co. 1 H. & N. 412 (1856). A person who negotiates one part of a set does not warrant that he has the others: Pinard v. Klockman, 3 B. & S. 388 (1863). If one part of a set does not contain a reference to the other parts, a bona fide holder for value may recover on it as a separate bill: Davidson v. Robertson, 3 Dow, 218 (1815); Société Generale v. Metropolitan Bank, 27 L. T. N. S. 849 (1873).

to different

2. Where the holder of a set indorses two or If indorsed more parts to different persons, he is liable on persons. every such part, and every indorser subsequent to him is liable on the part he has himself indorsed as if the said parts were separate bills: Imp. Act. s. 71 (2).

See Holdsworth v. Hunter, 10 B. & C. 449 (1830).

§ 70.

ted to different holders.

3. Where two or more parts of a set are negoIf negotia- tiated to different holders in due course, the holder whose title first accrues is, as between such holders, deemed the true owner of the bill; but nothing in this sub-section shall affect the rights of a person who in due course accepts or pays the part first presented to him. Imp. Act, s. 71 (3).

Ассерtance.

If more than one part is

accepted.

Payment

without

delivery

part.

See Perreira v. Jopp, 10 B. & C. 450 n. (1793); Lang v. Smyth, 7 Bing. 284 (1831).

4. The acceptance may be written on any part, and it must be written on one part only: Imp. Act, s. 71 (4).

5. If the drawee accepts more than one part, and such accepted parts get into the hands of dif ferent holders in due course, he is liable on every such part as if it were a separate bill: Imp. Act, s. 71 (5).

See Holdsworth v. Hunter, supra.

6. When the acceptor of a bill drawn in a set of proper pays it without requiring the part bearing his acceptance to be delivered up to him, and that part at maturity is outstanding in the hands of a holder in due course, he is liable to the holder thereof: Imp. Act, s. 71 (6).

7. Subject to the preceding rules, where any one part of a bill drawn in a set is discharged by payment or otherwise, the whole bill is discharged: Imp. Act, s. 71 (7).

As to how a bill may be discharged, see sections 59 to § 70. 63, inclusive.

The discharge results from the rule in sub-section 1, that the whole of the parts constitute one bill. See Wells v. Whitehead, 15 Wend. (N. Y.) 527 (1836); Durkin v. Cranston, 7 Johns. (N. Y.) 442 (1811); Ingraham v. Gibbs, 2 Dallas 134 (1791).

In an action against the drawer or indorsers, the part of the set which was protested must be produced: Downes v. Church, 13 Peters (U. S.) 205 (1839).

CONFLICT OF LAWS.

Section 71 lays down certain rules upon questions involving the conflict of laws or private international law. On some of the points thus settled, there had been a great conflict of authority and decisions in England and Canada. The section is copied from section 72 of the Imperial Act with the simple substitution of "Canada" for the words "United Kingdom" wherever they occur.

On account of the peculiar character of our federal constitution some new questions will arise here in consequence of the adoption of the language of the Imperial Act without change or definition. Is Canada one "country" within the meaning of sub-section 1? Or will the different provinces be considered as different countries for the purposes of the section with respect to matters as to which the Act itself makes different provisions for them, or where the provincial laws directly or indirectly affecting bills and notes differ so widely? The analogy of the United States does not afford us much assistance, as there the subject belongs to the individual States, each of which is, for purposes within its jurisdiction, considered a distinct and independent sovereignty. In these respects the States