CHAPTER The whole set but one bill. Liability of indorser of more than one part. Examplars, 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 (i). 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 till some other security were 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 (k). Where the holder of a set indorses two or more parts to different persons, he is liable on every such part, and every Comme aussi le banquier corres- The facility which drawing a the time within which a bill, payable after sight, ought to be presented for acceptance. Straker v. Graham, 4 M. & W. 721. (i) Pinard v. Klockman, 32 L. J., Q. B. 82; 3 B. & S. 388. (j) Code, s. 71. 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 Granada Mining Company, 1 H. & N. 412. (k) Holdsworth v. Hunter, 10 B. & C. 449. indorser subsequent to him is liable on the part he has him- CHAPTER self indorsed, as if the said parts were different bills. X. different Where two or more parts of a set are negotiated to dif- To whom bill ferent holders in due course, the holder whose title first belongs when accrues is, as between such holders, deemed the true owner parts are in of the bill; but the rights of a person who in due course hands. accepts or pays the part first presented to him are not thereby affected (1). Each part is now subject to a stamp if issued or nego- Stamp. tiated apart from the others (m). The drawee should accept only one part. For if two ac- Liability of cepted parts should come into the hands of different holders, drawee. and the acceptor should pay one, it is possible that he may be obliged to pay the other part also (n). And he should not pay without taking back the part which he has accepted (0), for, having paid the unaccepted part, he may be obliged afterwards to pay the accepted part also. It is conceived, that an indorser is not bound to pay any one part, unless every part bearing his indorsement be delivered up to him ( p). Copies of bills are not, it country. A protest may be (7) Sect. 71. Holdsworth v. Hunter, 10 B. & C. 449; Perreira v. Jopp, 10 B. & C. 450. The first holder may, it is said, maintain trover for the other parts even against a subsequent bond fide holder. Lang v. Smyth, 7 Bing. 284; 5 M. & P. 78. An omission on one part to express the reference to the others may have the effect of obliging the drawer to pay more than one part. Davidson v. Robertson, 3 Dow. 218; Beawes, 430; Poth. 111; 2 Pard. 367. (m) 33 & 34 Vict. c. 97, s. 55. If a man be under an obligation to deliver a foreign bill, it seems he must deliver as many parts as are applied for. 1 Pard. 334. (n) See Holdsworth v. Hunter, 10 B. & C. 449; Code, s. 71. (0) Celui qui paie une lettre de is believed, much used in this Copies of made on the copy of a lost bills. change sur une deuxième, troi- (p) Lorsqu'une deuxième porte Dans ce cas le porteur de la seconde est averti par les énonciations qu'elle contient. Pour se mettre à l'abri des fraudes de son cédant, il doit se faire remettre la première. Cour de Cassation, 4 Avril, 1832; Sirey, t. 32, 1. 29. X. CHAPTER bill (q). 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 with such a person." If he should omit to state that the bill is a copy, or to write his own indorsement after the word copy, he may become liable on the copy as on an original (»). Substitutions It is a common but not a safe practice for a drawer, to whom a negotiated part has come back with many indorsements on it, to substitute a new part without such indorsements. The holder of such a substituted part may be deprived of his remedy against the acceptor by the intermediate act of the drawer ($). (a) Dehers v. Harriot, 1 Show. 163; Code, s. 51 (8). (r) L'usage des copies, quoiqu'il ne soit pas consacré par la loi, n'en est pas moins valable. L'endosseur qui crée une copie, après avoir négocié l'original, est tenu de mentionner dans la copie l'endossement qu'il a écrit sur le titre même. Si, au contraire, après ces mots pour copie, il appose un endos, il fait supposer que l'original n'est pas endossé, et il est responsable vis-à-vis du porteur de bonne foi de la copie. Cour Royale de Paris, 14 Janvier, 1830; Sirey, t. 30, 1. 172. (s) Ralliv. Dennistoun, 6 Exch. 483. as to con If a man seek to enforce a simple contract, he must, in Presumption pleading, aver that it was made on good consideration, and sideration on must substantiate that allegation by proof. But to this rule bills and bills and notes are an exception. It is never necessary to notes. aver consideration for any engagement on a bill or note, or 158 Horse-racing 159 Innocent Indorsee 160 New Security . 161 Stock-jobbing 161 Other Considerations illegal by Statute 162 Notice of Fraudulent or 164 Illegality of Consideration when Judgment recovered 164 Part Consideration 165 Renewal of Bill given on 165 CHAPTER XI. CHAPTER to prove the existence of such consideration, unless a presumption against it be raised by the evidence of the adverse party, or unless it appear that injustice will be done to the defendant, or that the law will be violated, if the plaintiff recover. In the case of other simple contracts, the law presumes that there was no consideration till a consideration appear; in the case of contracts on bills or notes, a consideration is presumed till the contrary appear, or at least appear probable (a). When burden of proof shifted. In the case of Every holder of a bill or note is, prima facie, a holder in due course, and therefore is presumed to be among other things a holder for value; but if in an action on a bill or note it is admitted or proved that the acceptance or making, issue, or subsequent negotiation is affected with fraud, duress, or illegality, the burden of proof is shifted, and those presumptions no longer exist, unless the holder prove that subsequently to the alleged fraud he or some one through whom he derives title gave value in good faith. Hence the defendant is not permitted to put the plaintiff on proof of the consideration which the plaintiff gave for the bill, unless the defendant can make out a primâ facie case against him, by showing that the bill was obtained from the defendant, or from some intermediate party, by undue means, as by fraud or force (b) (or that it was lost) (c), or that it was originally infected with illegality. It was formerly held, that the defendant could call on the an accommo- plaintiff to prove consideration, by showing the bill to be dation bill. (a) Code, s. 30. To obtain the usual decree in a creditor's suit it is not sufficient for the plaintiff to put in an acceptance of the testator proved as an exhibit. Quare, whether any evidence should be given of the consideration. Keaton v. Lynch, 1 Y. & Col. N. S. 437. And where an account is directed by a Court of Equity to be taken of dealings between an attorney and his client, it is not sufficient that the attorney produce bills and notes given by the client to him, he must prove the consideration. Jones v. Thomas, 2 Y. & Col. 498. (5) As to a note obtained by duress of goods, see Kearns v. Durell, 6 C. B. 596. The distinction seems to be between a payment, or a transaction in the nature of payment, which is void for duress of goods, and a contract, which cannot be so avoided. As to compulsion in the nature of duress of land, sec Close v. Phipps, 7 M. & G. 586. See also Atkinson v. Denby, 30 L. J., Exch. 361; 7 N. & M. 934. (c) Harvey v. Towers, 6 Exch. 656; Mather v. Lord Maidstone, 26 L. J., C. P. 58; 1 C. B., N. S. 273. But a wager which is not prohibited, but only void under 8 & 9 Vict. c. 109, has been held not to be such an illegality of consideration as will change the burthen of proof. Filch v. Jones, 5 E. & B. 238. Loss of a bill is not specified in s. 30 (2). |