CHAPTER But not on real property. Is earnest. On the sale of real property the taking and negotiating a note or bill by the vendor does not amount to a relinquishment of his lien (p) on the land (g) for the unpaid purchase money. A bill, check or promissory note is earnest, or part payment, within the seventeenth section of the Statute of Frauds, so as to obviate the necessity of a written contract (r). A covenant to pay in promissory notes implies and includes a covenant to pay the notes when due (s). An unstamped bill or check is not payment (t). (p) Ex parte Loring, 1 Rose, 19; Grant v. Mills, 2 V. & B. 306. See Macreth v. Simmons, 15 Ves. 329. See as to the effect of taking a void check, Bond v. Warden, 14 L. J., Chan. 154; 1 Coll. 583, S. C. (q) As to the circumstances under which the transfer of a bill is payment in bankruptcy, see the Chapter on BANKRUPTCY. (r) Chitty on Bills, 8th ed. 80, note (b), p. 84. (8) Dixon v. Holroyd, 27 L J., Q. B. 43; 7 E. & B. 903, S. C. (t) Cundy v. Marriott, 1 B. & Ad. 696; Bond v. Warden, 14 L. J., Ch. 154; 1 Coll. 583, S. C. FOREIGN bills (a) are often drawn in parts, all the parts together making what is called a set. CHAPTER What a bill drawn Exemplars or parts of the bill are made on separate pieces in parts is. 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 (6). Every transferer is bound to hand over to his (a) Il existe dans la négotiation des lettres de change un usage qui la facilite et assure leur paiement rapide; c'est la faculté de tirer par première, seconde, et troisième, &c. &c., c'est à dire de souscrire plusieurs exemplaires. Cet usage remonte à des temps déjà reculés; il était en vigueur sous l'ancienne législation, et Cleirac en cite des exemples qui se rapportent au milieu du seizième siècle. Il n'est pas sans intérêt de reproduire ses observations fort sensées : "Et d'autant que les lettres de change sont des papiers volans, des petits poulets, ou billets, Polizza di Cambio, qui se peuvent B. facilement esdirer et perdre. (b) The facility which drawing CHAPTER XXX. The whole set but one bill. To whom the bill belongs when the parts are in different hands. How many parts 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 (c). 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 (₫). 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 (e). But as between bonâ 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 (ƒ), and may, it has been said, maintain trover for them, even against a subsequent bonâ fide holder (g). If a man be under an obligation to deliver a foreign bill, may be required. it seems he is bound to deliver as many parts as may be applied for (h). Effect of omit ting to refer to the other parts. 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 (i). (g) For it is the duty of a person taking one of several parts to inquire after the others; Lang v. Smyth, 7 Bing. 284, 294; 5 M. & P. 78, S. C.; and he is advertised by the part which he does take, that he takes it without the others at his peril. (h) 1 Pard. 334. But since each part is now subject to a stamp, it may be doubtful whether he is so bound, unless the party applying will furnish the extra stamps. (i) Davison v. Robertson, 3 CHAPTER 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 Liability of be obliged to pay the other part also (j). And he should not pay without taking back the part which he has accepted (k), for, having paid the unaccepted part, he may be obliged afterwards to pay the accepted part also. drawee. indorser. And if an indorser improperly circulate two parts to dis- Liability of tinct holders, he may be liable on each (7). The forgery of the payee's indorsement on one of the parts will of course pass no interest even to a bonâ fide holder (m). 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 (n). Copies of bills are not, it is believed, much used in this Copies of bills. country. A protest may be made on the copy of a bill in some cases (o). 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 (p). 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. (j) See Holdsworth v. Hunter, 10 B. & C. 449. (k) Celui qui paie une lettre de change sur une deuxième, troisième, quatrième, &c., sans retirer celle sur laquelle se trouve son acceptation, n'opère point sa libération à l'égard du tiers porteur de son acceptation. Code de Commerce, Art. 148. (1) See Holdsworth v. Hunter, Fuller v. Smith, 1 C. & P. 197; (n) 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. (0) Dehers v. Harriot, 1 Show. 163. (p) L'usage des copies, quoiqu'il CHAPTER 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 (q). ne soit pas consacré par la loi, n'en dos, 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. (q) Ralli v. Dennistoun, 6 Exch. 483. |