$ 69. apply to the drawer to give him another bill of the same tenor, giving security to the drawer if required to indemnify him against all persons whatever in case the bill alleged to have been lost shall be found again (c). If the drawer on request as aforesaid refuses to give such duplicate bill, he may be compelled to do so (d). (a.) Vide $$ 10, 14, 45. (b.) Vide § 2. (c.) Where a bill has been lost the person who was in right of it is entitled to recover it from a finder; but if it has passed into the hands of a holder in due course, vide § 29, his right to the bill is gone. He can, however, recover from the finder whatever value he received for it. A holder even for value, if not in due course, is bound to give up the bill; and if he has obtained payment from the acceptor or drawee, he will be obliged to account for the sum so received, but not if he has merely acted as the agent of the person in possession of the bill in receiving payment, Clydesdale Bank v. Royal Bank, 11th March, 1876, 3 R., 586. The acceptor, if he has paid in due course the sum in the bill, either to the finder or to any holder to whom he has transferred the bill, will not be bound either to give up the bill or to pay the sum contained in it, vide §§ 38 and 59; but if he has paid the bill before maturity to a person whose title is defective, he will be bound to pay a second time. If the bill cannot be found, the person who was in right of it, including an acceptor who has paid the bill, but requires it as a voucher of a payment made by him for the drawer, may in Scotland bring an action of proving the tenor, before the Court of Session, in which he must prove (1) the facts relating to the loss of the instrument, and (2) its tenor. The proof of the loss of the bill must be distinctly made out, and will not be inferred from the mere fact of its not being found among the creditor's papers, Mac farlane v. M'Nie, 1st March, 1826, 4 Sh. 509. On the creditor obtaining decree in such an action, he will be entitled to sue all the parties liable on the bill, but if the bill was payable, either originally or by indorsation, to bearer, he will not be entitled to enforce payment of it without giving an indemnity against the claims of any holder of it, Thomson on Bills, pp. 204-206. Under the provisions of this section, which applies to all bills, whether inland or foreign, a simpler remedy has been introduced. The holder-i.e., the payee or indorsee of a bill who is in possession of it, or the bearer of it, but not the acceptor, unless it has been negotiated to him, may, but only before its maturity, demand another bill of the same tenor from the drawer. Whether the bill be payable to bearer, or to order and unindorsed, he must tender a complete indemnity. The holder cannot claim a new acceptance from the drawee, if he has already accepted the original bill. And the payee of a promissory note cannot demand a new note from the maker, because the maker is held to correspond to the acceptor, vide § 89 (2); but apparently the first indorser of a note will be bound to deliver a duplicate bill to the holder, ibid. (d.) If the lost bill be known to be in the hands of a holder in due course, the person who was the holder of it, but has ceased to be so by the bill passing into the hands of a holder in due course, will apparently not be entitled to demand a duplicate bill. The section refers to an indemnity being given to the drawer to protect him in the event of the bill being found, but in this case the bill has been found, and it is certain that the drawer has lost his title to it. In these circumstances it would be useless to ordain the drawer to give a new bill under an indemnity which he must enforce so soon as the bill reaches maturity. A duplicate bill requires to be stamped, because it is a new contract, and not a copy of a bill, 33 & 34 Vict. c. 97, § 93, vide Appendix. $ 69. 70. In any action or proceeding upon a bill the Action on court or a judge judge may order that the loss of the M lost bill. $ 70. Rules as to sets. instrument shall not be set up, provided an indemnity be given to the satisfaction of the court or judge against the claims of any other person upon the instrument in question (a). (a.) This section applies to all bills, foreign and inland, before and after maturity, but does not affect summary diligence, the rules of which are not altered by this Act, vide § 98. The action may be at the instance of a holder of the bill, or of the acceptor, who requires the bill in suing the drawer for whose accommodation he has accepted; or, as a voucher of money paid away by him. Where the action is not laid on a bill, but on the debt in it, the holder will not thereby escape the necessity of giving indemnity, because the bill, if paid by the drawee, will be a complete discharge of the debt, Maberley v. Bank of Scotland, 27th Feb. 1822, 1 Sh. 401; rev. 1st March, 1825, 1 W. and S., H. L. Appeals, 10. The former holder of a lost note is not, by its loss, relieved from the performance of the holder's duties, and is not entitled to delay taking any steps until he has brought his action under either this or the preceding section, but if the loss be not imputable to his own default, misconduct, or negligence, delay in presenting for payment will be excused, vide § 46 (1), and presentment, after the exercise of reasonable diligence, will be dispensed with in certain cases, vide § 46 (2), but the loss of the bill will not excuse delay in giving notice of dishonour, nor of protesting when necessary, because the Act provides that a protest may be taken on a copy, or on written particulars of the bill, vide § 51 (8). Bill in a Set. 71. (1.) Where a bill is drawn in a set, each part of the set being numbered, and containing a reference to the other parts, the whole of the parts constitute one bill (a). (2.) Where the holder (b) of a set indorses two or more parts to different persons (b), 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. (3.) Where two or more parts of a set are negotiated (c) to different holders in due course (d), the holder (b) whose title first accrues is as between such holders deemed the true owner of the bill (e); but nothing in this subsection shall affect the rights of a person who in due course accepts or pays the part first presented to him (ƒ). (4.) The acceptance may be written on any part, and it must be written on one part only (g). If the drawee accepts more than one part, and such accepted parts get into the hands of different holders in due course (d), he is liable on every such part as if it were a separate bill. (5.) When the acceptor of a bill drawn in a set pays it without requiring the part bearing his acceptance to be delivered up to him, and that part at maturity (h) is outstanding in the hands of a holder in due course (d), he is liable to the holder (b) thereof. (6.) Subject to the preceding rules, where any one part of a bill drawn in a set is discharged by payment or otherwise (g), the whole bill is discharged (i). (a.) For the form of a bill drawn in a set, vide Appendix. One part of the set only requires to be stamped, vide the Stamp Act, 33 & 34 Vict. c. 97, § 55, Appendix; and upon proof of the loss or destruction of a duly stamped part of the set, an unstamped part not negotiated apart from the lost part may be given in evidence, ibid. A promissory note cannot be drawn in a set, vide § 89 (3 d). In a bill drawn in a set, each part is made payable only if § 71. § 71. Rules where laws conflict. the others are unpaid, and as all the parts constitute one bill, an obligation to deliver a bill is not implemented by delivery of one of the parts, Kearney v. West Granada Mining Co., 22 L., 2 Ex. 15. The transferee of one part is entitled to demand delivery of the other parts. (b.) Vide § 2. (d.) Vide § 29. (e.) The true owner of the bill, in virtue of his title to the bill through the indorsement to him of one part, is entitled to sue all the prior parties to the bill, and to present for acceptance and payment. The presentment of his part will have the effect of a completed assignation, vide § 53 (2), unless prior to his presentment for acceptance or payment, another part of the bill has been accepted or paid in due course, vide SS 41 and 45. The holders of other parts have only a claim against the drawer or holder who has indorsed their part, and indorsers on that part subsequent to him. (f.) Vide § 59. (g.) Vide § 17. (h.) Vide $$ 10, 14, 45 (2). (i.) Vide § 59-64. Conflict of Laws. 72. Where a bill drawn in one country is negotiated (a), accepted, or payable in another, the rights, duties, and liabilities of the parties thereto are determined as follows: (1.) The validity of a bill (b) as regards requisites in form is determined by the law of the place of issue (c), and the validity as regards requisites in form of the supervening contracts, such as acceptance (d), or indorsement (e), or acceptance supra protest (f), is determined by the law of the place where such contract was made (g). |