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X.

Examplars, or parts of the bill, are made on separate CHAPTER 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).

but one bill.

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

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 (1).

Where the holder of a set indorses two or more parts to different persons, he is liable on every such part, and every

facilement esdirer et perdre. Comme aussi le banquier correspondant à Paris peut manquer au paiement, c'est pourquoi, tant le bourgeois qui a tiré, que son commissionnaire résidant à Paris, ont chacun besoin d'une copie pour faire leurs diligences. A cette cause le banquier doit écrire, et fournir par précaution deux ou trois copies de la même lettre de semblable teneur." Nouguier des Lettres de Change, 1, 104.

The facility which drawing a bill in sets affords for its present

ment, 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.

(i) Pinard v. Klockman, 32
L. J., Q. B. 82; 3 B. & S. 388.

(k) Code, s. 71. Byles on Bills, 6th Amer. 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.

(1) Holdsworth v. Hunter, 10 B. & C. 449; 34 R. R. 479.

Liability of indorser of

more than one part.

CHAPTER
X.

To whom bill

belongs when parts are in different hands.

Stamp.

Liability of drawee.

Copies of bills.

indorser subsequent to him is liable on the part he has himself indorsed, as if the said parts were different bills.

Where two or more parts of a set are negotiated 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 the rights of a person who in due course accepts or pays the part first presented to him are not thereby affected (m).

Each part is now subject to a stamp if issued or negotiated apart from the others (n).

The drawee 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 (0).

And he should not pay without taking back the part which he has accepted (p), 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 (q).

Copies of bills are not, it is believed, much used in this country. A protest may be made on the copy of a lost

(m) Sect. 71. Holdsworth v. Hunter, 10 B. & C. 449; 34 R. R. 479; Perreira v. Jopp, 10 B. & C. 450 34 R. R. 480, n.; Soc. Gen. de Paris v. Banque Hongroise, 11 T. L. R. 244. The first holder may, it is said, maintain trover for the other parts even against a subsequent bona fide holder. Lang v. Smyth, 7 Bing. 284; 5 M. & P. 78; 33 Ř. R. 462. 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.

(n) 54 & 55 Vict. c. 39, s. 39. 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.

(0) See Holdsworth v. Hunter, 10 B. & C. 449; 34 R. R. 479; Code, s. 71.

(p) Celui qui paie une lettre de change sur une deuxième, troisième, quatrième, &c., sans retirer celle sur laquelle se trouve son acceptation, n'opêre point sa libération à l'égard du tiers porteur de son acceptation. Code de Commerce, Art. 148.

(1) Lorsqu'une deuxième porte qu'elle ne sera payée qu'autant que la première ne l'aura pas été l'endosseur qui endosse les deux exemplaires n'est point responsable envers le porteur de la seconde qui a reçu ce titre, tandis que la première était également en circulation.

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.

bill (r). 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 (s).

CHAPTER

X.

It is a common but not a safe practice for a drawer, to Substitutions. 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 (1).

(r) Dehers v. Harriot, 1 Show. 163; Code, s. 51 (8).

(8) 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.

(†) Ralli v. Dennistoun, 6 Exch.
483.

140

CHAPTER

XI.

Presumption

as to con

sideration on

bills and notes.

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IF a man seek to enforce a simple contract, he must, in pleading, aver that it was made on good consideration, and must substantiate that allegation by proof. But to this rule bills and notes are an exception. It is never necessary to

aver consideration for any engagement on a bill or note, or 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).

Every holder of a bill or note is, primâ 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 ory 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 prima 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 plaintiff to prove consideration, by showing the bill to be

(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. Quære, 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.

(b) 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 con-
tract, which cannot be so avoided.
As to compulsion in the nature of
duress of land, see 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. Fitch v. Jones,
5 E. & B. 238. Loss of a bill is
not specified in sect. 30 (2).

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