Page images

Set of bills.



132. Bills of exchange may be drawn in parts, each part being numbered and containing a provision that it shall continue payable only so long as the others remain unpaid. All the parts together make a set; but the whole set constitutes only one bill, and is extinguished when one of the parts, if a separate bill, would be extinguished.

Exception. When a person accepts or indorses different parts of the bill in favour of different persons, he and the subsequent indorsers of each part are liable on such part as if it were a separate bill.

Though nothing is said in the Act, limiting the drawing of bills in sets to foreign bills, in England it is only usual to do so in respect to them, and both Byles and Chitty' in their remarks on bills in sets, refer only to foreign bills.


Byles says, Exemplars or parts of the bill are made on separate pieces of paper, each part being numbered, and refer"ring 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


1 Byles on Bills, 13th ed., 11th ed., by Russell, p. 111. Chap. XXX; Chitty on Bills,

"his part for acceptance, but giving him the indorsers security "immediately, and diminishing the chances of losing the bill." As to the exception, it is founded on the case of Houldsworth v. Hunter.1. There the defendant had accepted two parts of a set of bills, which were drawn in three parts; the second part he being also the payee, he indorsed over to his father conditionally, the first part he indorsed to the plaintiff. The defendant subsequently fulfilled the condition to his father and redeemed the part from his father, and it was held by the Court, that the plaintiff was not debarred from recovering on the part indorsed to him. Lord Tenterden in his judgment, after holding that the part indorsed to the defendant's father had not been paid, as the indorsement had not been absolute but conditional, and that the fulfilment of the condition was not payment, said "Suppose "two parts of a foreign bill come to the hands of the drawee, "he accepts both, and indorses first one part to A and after"wards the other part to B. In any question between A and "B, A might be entitled to both. But the question here is, 66 whether the acceptor and indorser, shall be allowed to defend "himself against the holder of one part, on account of the pre"vious circulation of the other part. I am not aware of any "principle of law, upon which such a defence can be supported." And Parke, J., said, “The action was on two foreign bills, accept"ed by the defendant. But it was said in defence, that he had "before accepted another part and indorsed it away for value.

Assuming that to be so, still I think that although the defend"ant had not after so doing, power to bind the drawer, he is "estopped from disputing the regularity of his own acceptance." The non-acceptance of a duplicate hundi, where the original has been accepted, gives no cause of action, where the duplicate provides that it shall not be accepted if the original has been accepted, either for non-payment of the duplicate, or for money had and received, on account of the original consideration having failed.2

As to stamp, see Appendix.

The Stamp Act does not contemplate bills in sets of more than three, (see ante, Sec. 7.)

[ocr errors]

110 B. & C. 449.

2 Indur Chunder Doorga v.

Luchmee Bibi, 7 Beng. L. R. 682;
S. C. 15 Suth, W. R 501.

Holder of first

133. As between holders in due course of difentitled to all. ferent parts of the same set, he who first acquired

title to his part is entitled to the other parts and the money represented by the bill.

This is founded on the judgment of Bayley, J., in the case of Houldsworth v. Hunter who says, "Where a bill is drawn in "sets, the party claiming as holder, ought to have all the parts, "for the payment of any one part to another person may defeat "him."

[merged small][merged small][ocr errors][ocr errors][ocr errors]



tor or indorser

134. In the absence of a contract to the contrary, the liability of the maker or drawer of a foreign promissory note, bill of exchange or cheque is regu- of foreign lated in all essential matters by the law of the place instrument. where he made the instrument, and the respective liabilities of the acceptor and indorser by the law of the place where the instrument is made payable.


A bill of exchange was drawn by A in California, where the rate of interest is 25 per cent. and accepted by B, payable in Washington, where the rate of interest is 6 per cent. The bill is indorsed in British India, and is dishonored. An action on the bill is brought against B in British India. He is liable to pay interest at the rate of 6 per cent. only; but if A is charged as drawer, A is liable to pay interest at the rate of 25 per cent.1

The law of the place can never be the rule, where the transaction is entered into with the express view of the law of another country, as the rule by which it is to be governed,? "In the common law of England and America the niceties arising from the parties being of different nationalities are discarded. Every contract, whether made between foreigners or between foreigners and citizens is deemed to be governed by the law of the place where it is made, and to be executed"3

"Now let us suppose a note made in Paris, payable to the order "of the payee, and he should there indorse the same in blank, "without the prescribed formalities, and afterwards the holder

1 Gibbs v. Fremont, 9 Exch. 31; S. C. 22 L. J. (ex.) 5, Cooper E. of Waldegrave, 2 Beav. 282. 2 Robinson v. Bland, 2 Burr.


1077; S. C. W. Bl. 256, per Lord

3 Story Confl. Laws, Sec. 279.

Law governing liability of

maker, accep


"should sue the maker in another country, for example, in Eng'land, where no such formalities are prescribed; the question "would arise, whether the holder could recover in such a suit, in an English Court upon such an indorsement. It has been held "he cannot (Trimbey v. Vignier), and this decision seems to be "founded in the true principles of international jurisprudence ;— "for it relates not to the form of the remedy, but to the interpre"tation and obligation of the contract created by the indorsement, "which ought to be governed by the place of the indorsement."1 In respect to foreign bills of exchange, they are generally, as to their validity, nature, interpretation and effect, governed by the laws of the State or country, where the contract between the particular parties has its origin. The contract of the drawer is, as to the form, the nature of the obligation and the effect thereof, governed by the law of the place where the bill is drawn, in regard to the payee and any subsequent holder. The contract of the indorser by the law of the place, where the indorsement is made as to his indorsee and every subsequent holder. The contract of the acceptor, is governed by the law of the place of his acceptance, as to the drawer, the payee and every subsequent holder, unless he accepts in one place payable in another; for in the latter case, the law of the place where the bill is payable will govern, in regard to the same parties, so that very different contracts, of very different natures and of various obligations may arise between different parties, under one and the same bill of exchange, according to the place, where the transaction place.' Suppose a negotiable note is made in one country and is payable there, and it is afterwards indorsed in another country, and by the law of the former country, equitable defences are let in, in favor of the maker, and by the latter such defences are excluded; what rule is to govern in regard to the holder, in a suit against the maker to recover the amount, upon the indorsement to him? The answer is the law of the place where the note was made; for there the maker undertook to pay; and the subsequent negotiation of the note did not change his original obligation, duty or rights. Acceptances of bills are governed by the same principles. They are deemed contracts of accept

[ocr errors]

1 Story Confl. Laws, Sec. 316a; Story on Bills of Exchange, Sec.

2 Story on Bills of Exchange, Sec. 131.

« PreviousContinue »