bill is payable at a particular place, payment must be demanded at that place.

In this case the only real question is, whether the holder is excused by reason of the mistake in the post-office at Liverpool, from not making demand in season. It is proved in this case that the drawees were bankrupt when the bill was drawn, and had no funds of the drawers at that time or since, and that at no time would they have accepted or paid the bill. It does not appear, however, that the bill would not have been paid by the acceptors had it been regularly demanded. In the case of Patience v. Townley (2 Smith, 223), a bill drawn on Leghorn, due the 10th September, 1800, was not demanded till the 31st December; Leghorn being then occupied by the enemy, or in some such critical situation, it was impossible to present it in season. The plaintiff had a verdict, which the court refused to set aside, Lord Ellenborough saying: "Duly presented, is presented according to the custom of merchants, which necessarily implies an exception in favor of those unavoidable accidents which must prevent the party from doing it within the regular time;" and it was left to the jury to say whether, from the situation of the country, it was impossible for the plaintiff to present it in due time. That cause presented a case of impossibility; but this case presents no impossibility, if due diligence had been used. The plaintiff should not have sent the bill to Liverpool at all. It is true, that after the letter containing it had been left at Liverpool on the 10th November, it could not have reached London in season; but it was the fault of the plaintiffs to have parted with the bill in the manner they did. Instead of sending it to Liverpool, they should have sent it to London, and then it would have been in season, and probably would have been paid.

I am of opinion, that, by the law merchant, payment should have been demanded in London on the 12th of November; and that not having been done, and there being no impossibility to prevent it but what is attributable to the want of due diligence on the part of the holders, the defendants are legally discharged, and are entitled to judgment.

See Neg. Inst. L., § 141. — H.

ARTICLE XV.

PAYMENT FOR Honor.

BYLES, BILLS OF EXCHANGE, ETC. (13TH ED.) 1879.

[CHAPTER XXI.]

PAYMENT supra protest is where a bill of exchange, having been protested for non-payment, is paid by another person for the honor of some one of the parties. Any party to a bill of exchange, whether drawer, drawee, payee or indorser, may pay for honor. So may a mere stranger, without any previous request or authority from the party for whose honor he pays. This right is not founded on the English common law, but is a provision of the general law merchant, introduced to aid the credit and circulation of bills of exchange. It extends to no other instrument. Such payment should be preceded, on the part of the payer, in the presence of a notary public, by a declaration for whose honor the bill is paid, which should be recorded by the notary, either in the protest or in a separate instrument.1 It is clear that there can be no payment for honor till the bill is dishonored by non-payment.; 2 and a protest is essential," though it may be drawn out in due form afterward.*

A party paying a bill of exchange supra protest has his action against the party for whom the payment was made, and against all other parties to whom the party could have resorted for reimbursement. But he thereby discharges all the subsequent parties, although that discharge does not prevent his relying on any title they may have."

A man paying for honor of an indorser may, if he choose, give immediate notice to the prior indorsers, but he is not bound so to do. He may, if he please, send the protest or the bill or notice to the indorser for whose honor he pays, and any subsequent regular notice given by that party will suffice.

7

1 Beawes, pl. 53; Marius, 128; Code de Commerce, art. 158.

2 Deacon v. Stodhart, 2 Man. & Gr. 317.

3 In Vandewall v. Tyrrell, 1 M. & M. 87, so held by Lord Tenterden; and in Ex parte Wylde, 30 L. J. Bky. 10, by Lord Campbell. As it is by the French Law, Code de Commerce, art. 158, and by the law of Scotland, Bell's Comm. b. 3, pt. 1, c. 4, § 367.

4 Geralopulo v. Wieler, 10 C. B. 690.

Bayley (6th ed.) 318.

• Code de Commerce, art. 159. In America it is held that an acceptor supra protest, for the honor of the first indorser, may require as a condition of payment that the holder shall indorse the bill to him. See Byles on Bills (6th American ed.), 408.

7 Goodall v. Polhill, 14 L. J., C. P. 146; 1 C. B. 233.

It is conceived that a man cannot, by paying supra protest, revive the liability of an indorser already discharged by laches.

And where a party pays generally for honor, without a protest, a bill already indorsed in blank, he, as an indorsee, may, it seems, sue any party on the bill."

The most obvious and advantageous course to be pursued by a man desiring to protect the credit of any party to a dishonored bill is simply to pay the amount to the holder and take the bill as an ordinary transferee.

But the holder may possibly object; for example, the bill may not have been indorsed in blank, and the holder may refuse to indorse even sans recourse. In such an event a payment supra protest becomes essential.

The party paying supra protest has also his remedy against the acceptor, and that whether the acceptance was given for value or not, unless there be an equity attached to the bill amounting to a discharge."

It is necessary that the protest should be made before payment.1

The law merchant as to payment supra protest does not extend to promissory notes, which are not, like bills of exchange, instruments calculated or intended for circulation all over the globe. Whoever, therefore, pays a note for another person without authority, express or implied, does so at his peril.2

In ordinary cases, however, where the note is indorsed in blank, he of course becomes a transferee of the note.3

8 Mertens v. Winnington, 1 Esp. 113. But see the observations on this case by Lord Campbell in Ex parte Wylde, 30 L. J. Bky. 10.

• Ex parte Wackerbath, 5 Ves. 574; Ex parte Swan, L. R., 6 Eq. 344, explaining and overruling Ex parte Lambert, 13 Ves. 179. A party taking up a bill for the honor of any party to it succeeds to the title of the party from whom he took it, and is in effect an indorsee by the law merchant, though he cannot himself indorse: Pothier, vol. 4, pt. 1, §§ 113, 114; Nouguier, Lettres de Change, §§ 584-591.

1 Vandewall v. Tyrrell, 1 M. & M. 87. Although it need not be drawn out in full, or extended, as it is called, till afterwards: Geralopulo v. Wieler, 10 C. B. 690.

2 Story on Promissory Notes, § 453.

Payment supra protest is a peculiarity of the law merchant. The payer for honor is practically in the position of an indorsee, except that he discharges all parties subsequent to the one for whose honor he pays. It has been held that one who pays for the honor of the drawer cannot recover against an accommodation acceptor. McDowell v. Cook. 14 Miss. 420; Gazzam v. Armstrong, 3 Dana (Ky.), 554; 2 Daniel, § 1255. But this doetrine was founded upon a misapprehension of the facts of Ex parte Lambert (13 Ves. 179), and the doctrine is distinctly repudiated in Ex parte Swan, L. R., Eq. 344. By Neg. Inst. L., § 304, the payer for honor succeeds to the rights of the holder, both as to the party for whose honor he pays, “and all parties liable to that party." The clause quoted seems to leave the ques tion of the liability of the accommodation acceptor still in doubt.- H.

ARTICLE XVI.

BILLS IN A SET.

BYLES, BILLS OF EXCHANGE, ETC. (13TH ED.) 1879.

1

[CHAPTER XXX.]

FOREIGN bills are often drawn in parts, all the parts together making what is called a set.

Exemplars or parts of the bill are made on separate pieces of paper, each part being numbered, and referring to the other parts. Each part contains a condition that it shall continue payable only so long as the others remain unpaid. These parts should circulate together; or one may be forwarded for acceptance while the other is delivered to the indorsee, thus relieving him from the necessity of forwarding his part for acceptance, but giving him the indorser's security immediately, and diminishing the chances of losing the bill. Every transferor is bound to hand over to his transferee all the parts of the bill in his possession, and he may even be liable to hand them over to a subsequent transferee, if he have them still in his possession.3

The whole set, of how many parts soever it be composed, constitutes but one bill, and the regular payment and cancellation of any one of the parts extinguishes all.5

A firm, who were both payees and acceptors of a foreign bill in three parts, indorsed one part to a creditor to remain in his hands until some other security was given for it, and then indorsed another part of the same bill for value to a third person. They afterwards gave the first indorsee the proposed security, and took back the first part of the bill from him. Held, that the holder of the second part was not precluded from recovering against the firm: First, because the substitution of the security for the first part was not a payment; and secondly, because the firm were, as between themselves and the second indorsee, estopped from disputing the regularity of their acceptance and indorsement of the second part."

1 Nouguier des Lettres de Change, 1, 104.

2 The facility which drawing a bill in sets affords for its presentment has been held to accelerate the time within which a bill, payable after sight, ought to be presented for acceptance. Straker v. Graham, 4 M. & W. 721.

3 Pinard v. Klockman, 32 L. J. Q. B. 82; 3 Best & Smith, 388.

4 See Caras v. Thalmann, 138 App. Div. (N. Y.) 297. — C.

5 Byles on Bills (6th American edition), 578. A contract to deliver up a bill drawn in parts is a contract to deliver up every part. Kearney v. West Granda Mining Company, 1 H. & N. 412.

[See Caras v. Thalmann, 138 App. Div. (N. Y.) 297. — C.]

• Holdsworth v. Hunter, 10 B. & C. 449.

But as between bona fide holders for value of different parts of the same bill, he who first obtains a title to his part is entitled to the other parts, and might, it has been said, maintain trover for them, even against a subsequent bona fide holder."

If a man be under an obligation to deliver a foreign bill, it seems he is bound to deliver as many parts as may be applied for."

An omission on one part to express the reference to the others, and the condition relating to them, may have the effect of obliging the drawer to pay more than one part.1

The drawer should accept only one part. For if two accepted parts should come into the hands of different holders, and the acceptor should pay one, it is possible that he may be obliged to pay the other part also.2

And he should not pay without taking back the part which he has accepted, for, having paid the unaccepted part, he may be obliged afterwards to pay the accepted part also.

And if the indorser improperly circulate two parts to distinct holders, he may be liable on each. The forgery of the payee's indorsement on one of the parts will of course pass no interest even to a bona fide holder. 5

It is conceived that an indorser is not bound to pay any one part unless every part bearing his indorsements be delivered up to him.

Copies of bills are not, it is believed, much used in this country. A protest may be made on the copy of a bill in some cases." But abroad, when a bill is not drawn in sets, it is sometimes the practice to negotiate a copy, while the original is forwarded to a distance for acceptance.

In such a case the person who circulates the copy should transcribe the body of the bill, and all the indorsements, including his own, literally, and, after all, he should write "Copy: -the original being

7 Ibid; Perreira v. Jopp, 10 B. & C. 450 n.

8 For it is the duty of a person taking one of the several parts to inquire after the others. Lang v. Smyth, 7 Bing. 284, 294, 5 M. & P. 78; and he is advertised by the part which he does take that he takes it without the others

at his peril.

91 Pard. 334. But since each part is now subject to a stamp, if issued or negotiated apart (33 & 34 Vict., c. 97, § 55), it may be doubtful whether he is so bound, unless the party applying will furnish the extra stamps.

1 Davison v. Robertson, 3 Dow, 218, 228; Beawes, 430; Poth. 111; 2 Pard. 367. But not an inaccurate reference or an omission to name one part obviously by mistake. Bayley (6th ed.), 30.

2 See Holdsworth v. Hunter, 10 B. & C. 449.

3 Code de Commerce, art. 148.

4 See Holdsworth v. Hunter, supra.

5 Cheap v. Harley, 3 T. R. 127. See Smith v. Mercer, 6 Taunt. 80; 1 Marsh. 453, s. c.; Fuller v. Smith, 1 C. & P. 197; Ry. & M. 49, s. c.

• Cour de Cassation, 4 Avril, 1832; Sirey, t. 32, 1. 29.

7 Dehers v. Harriot, 1 Show. 163.