« السابقةمتابعة »
BILL IN A SET.
The provisions of the Act relating to bills in a set are all found in section 70. Bills in this form are usual for remittances abroad. To prevent delay in case the first should miscarry a second is frequently sent by a succeeding mail. In Canada a set is generally made up of three parts. Each part contains a condition that the others (naming them) are unpaid. See form in Appendix.
An agreement to deliver up certain sets of foreign bills which were drawn in three parts is not complied with by delivering up one of each set: Kearney v. West Granada Co. 1 H. & N. 412 (1856). A person who negotiates one part of a set does not warrant that he has the others: Pinard v. Klockman, 3 B. & S. 388 (1863). If one part of a set does not contain a reference to the other parts, a bona fide holder for value may recover on it as a separate bill: Davidson v. Robertson, 3 Dow, 218 (1815); Société Generale v. Metropolitan Bank, 27 L. T. N. S. 849 (1873).
70. Where a bill is drawn in a set, each part Bills in of the set being numbered, and containing a reference to the other parts, the whole of the parts constitute one bill: Imp. Act, s. 71 (1).
to different persons.
2. Where the holder of a set indorses two or If indorsed more parts to different persons, he is liable on every such part, and every indorser subsequent to him is liable on the part he has himself indorsed as if the said parts were separate bills: Imp. Act. s. 71 (2).
See Holdsworth v. Hunter, 10 B. & C. 449 (1830).
§ 70. 3. Where two or more parts of a set are negoIf negotia- tiated to different holders in due course, the holder different whose title first accrues is, as between such holders,
If more than one part is accepted.
deemed the true owner of the bill; but nothing in this sub-section shall affect the rights of a person who in due course accepts or pays the part first presented to him. Imp. Act, s. 71 (3).
See Perreira v. Jopp, 10 B. & C. 450 n. (1793); Lang v. Smyth, 7 Bing. 284 (1831).
4. The acceptance may be written on any part, and it must be written on one part only: Imp. Act, s. 71 (4).
5. If the drawee accepts more than one part, and such accepted parts get into the hands of different holders in due course, he is liable on every such part as if it were a separate bill: Imp. Act, s. 71 (5).
See Holdsworth v. Hunter, supra.
Payment without delivery
6. When the acceptor of a bill drawn in a set of proper pays it without requiring the part bearing his acceptance to be delivered up to him, and that part at maturity is outstanding in the hands of a holder in due course, he is liable to the holder thereof: Imp. Act, s. 71 (6).
7. Subject to the preceding rules, where any one part of a bill drawn in a set is discharged by payment or otherwise, the whole bill is discharged: Imp. Act, s. 71 (7).
As to how a bill may be discharged, see sections 59 to § 70. 63, inclusive.
The discharge results from the rule in sub-section 1, that the whole of the parts constitute one bill. See Wells v. Whitehead, 15 Wend. (N. Y.) 527 (1836); Durkin v. Cranston, 7 Johns. (N. Y.) 442 (1811); Ingraham v. Gibbs, 2 Dallas 134 (1791).
In an action against the drawer or indorsers, the part of the set which was protested must be produced: Downes v. Church, 13 Peters (U. S.) 205 (1839).
CONFLICT OF LAWS.
Section 71 lays down certain rules upon questions involving the conflict of laws or private international law. On some of the points thus settled, there had been a great conflict of authority and decisions in England and Canada. The section is copied from section 72 of the Imperial Act with the simple substitution of "Canada" for the words "United Kingdom" wherever they occur.
On account of the peculiar character of our federal constitution some new questions will arise here in consequence of the adoption of the language of the Imperial Act without change or definition. Is Canada one "country" within the meaning of sub-section 1? Or will the different provinces be considered as different countries for the purposes of the section with respect to matters as to which the Act itself makes different provisions for them, or where the provincial laws directly or indirectly affecting bills and notes differ so widely? The analogy of the United States does not afford us much assistance, as there the subject belongs to the individual States, each of which is, for purposes within its jurisdiction, considered a distinct and independent sovereignty. In these respects the States
§ 71. retain their separate autonomies, and are deemed as much foreign to each other, as if they did not form a Union at all. As the rules laid down in this section are those generally recognized, it is probable that our Courts will apply them to a settlement of interprovincial as well as international questions.
where laws conflict.
Validity, how determined.
The points which will arise under the Act involving such conflict between the laws of the different provinces, are numerous and important. Some of them will arise under provisions of the Act itself, such as that of the due date of a bill being affected in certain cases by the nonjuridical days differing in the different provinces under section 14; or the rules as to protests in Quebec differing from those in the other provinces. In clauses (c) and (e) of this section are laid down the rules which govern these cases. They will arise, however, chiefly from the conflict of provincial laws on such subjects as capacity, compensation, prescription, suretyship, etc.
It is to be borne in mind that it is a rule of international law that a discharge in the place where the contract is made is recognized as a discharge everywhere.
For a full discussion of the important questions arising under this head, the reader is referred to the standard works on the subject, and to the full reports of the leading cases, some of which are cited in the following notes on the various clauses of the section.
71. Where a bill drawn in one country is negotiated, accepted or payable in another, the rights, duties and liabilities of the parties thereto are determined as follows:
(a.) The validity of a bill as regards requisites in form is determined by the law of the place of
issue, and the validity as regards requisites in form § 71. of the supervening contracts, such as acceptance, or indorsement, or acceptance supra protest, is determined by the law of the place where such contract was made: Imp. Act, s. 72 (1).
"Country" is not defined in the Act. While, strictly speaking, Canada is one country for the purposes of bills and notes, these being assigned by section 91 of the British North America Act exclusively to the Dominion Parliament, it is probable that the Courts will apply the principles of the present section, which are the recognized rules of private international law, to cases where two or more provinces are concerned and there is a conflict between their laws.
'Drawing, in reference to bills of exchange, includes not only the writing and signing, but also the full execution by delivery": Wallace v. Souther, 2 S. C. Can. at p. 613 (1878). A bill is not "drawn " until it is issued, that is, delivered, complete in form to the payee or indorsee if it is payable to order, or to some person as bearer, if it is payable to bearer: section 2. The contracts of acceptance and indorsement, like that of the drawer, are only complete upon delivery, so that it is the delivery in each case which determines the place of the contract: Chapman v. Cottrell, 34 L. J. Ex. 186 (1865).
A bill is presumed to have been issued and indorsed at the place where it bears date, and to have been accepted at the place at which the drawee is addressed, unless there is something on it to show that the contract was in fact made in some other place.
The rule in this sub-section that the validity of a bill as regards the form of the bill itself, or of the acceptance or indorsement, is to be governed in each case by the lex loci contractus is one that is generally recognized.