March: defence, that it was drawn in London, and proof that the drawer was in London, the 3rd March, at eleven in the forenoon. Lord Ellenborough:-"It is not very probable this bill was drawn in Paris, on the 1st March; but if it were proved ever so distinctly that it was not drawn in Paris on the 1st of March, it would not follow that it was not drawn there at some other time, or that it was drawn in England. Drawing here with a foreign date, to evade the stamp duties, is a very serious offence, and the fact must be made out by distinct evidence" (N Even a party to the fraud was not precluded from showing that a bill purporting to be a foreign bill, is really an inland. one (h).a But now by the Stamp Act of 1854, 17 & 18 Vict. c. 83, s. 4, every bill purporting to be drawn out of the United Kingdom shall, for all the purposes of that act, be deemed to be a foreign bill. CHAPTER The following are instances of the application to bills of APPLICATION exchange of the last rule, viz.;-that though the lex loci OF THE LEX contractus must regulate and interpret the contract, yet that FORI TO FOthe lex fori must govern the remedy. REIGN BILLS. Statutes of Limitation in general affect the remedy only Statutes of and not the substance of the contract (i). Therefore, where, by the law of the country where the contract was made, the plaintiff would have had forty years to bring his action, yet, as he sued in England, it was held, that he must bring his action within six years (k). So on the other hand, though the payee of a French promissory note must, if he had sued in France, have brought his action (g) Abraham v. Dubois, 4 Camp. 269; Bire v. Moreau, 2 C. & P. 376. (h) Steadman v. Duhamel, 1 C. B. 288. (i) Quære, whether that be so where the statute not merely limits the remedy but actually extinguishes the debt. See Huber v. Steiner, 2 Bing. N. C. 202, 211; 2 Scott, 304; 1 Hodges, 206, S. C.; Don v. Lipman, 5 Cl. & Fin. 1, 16, 17; Story, 2nd ed. 840. In such a case it should seem that the statute is equivalent to a re- The rule as to the application (k) British Linen Company v. Drummond, 10 B. & C. 903. Limitation. CHAPTER Set-off. Power of arrest. Statute of Frauds. Protest and no there within five years, it was held that he might here bring his action at any time within six years (1). So, the power to set off a cross debt depends on the law of the country where the remedy is sought (m). So, though a defendant may not be subject to arrest in the country where the contract is made, yet he is subject to arrest where the law of this country gives the creditor the right to arrest, if the remedy be sought here (n). So, where by the law of the foreign country a criminal prosecution must be a preliminary to a civil action, the absence of such a previous prosecution is no defence to an action here (o). So, again, the fourth section of the Statute of Frauds enacts, that no action shall be brought on certain agreements unless they are in writing. It has been held that this enactment does not affect the solemnities of the contract but only the rules of procedure. And, therefore, though a parol contract, within the fourth section of the Statute of Frauds, be made in France, and be valid there, yet that an action on it will not lie in England ( p). The protest and notice of dishonour are parcel of the contice of dishonour. tract, and not incidents of the remedy for the breach of it. They must, therefore, be regulated by the law of the country where the bill is payable (q), or where the contract is made or where the notice is given, and not solely by the law of the country where the remedy is sought. Pleading foreign law. Burthen of proof. When foreign law is relied on in pleading, it is proper first to state what the foreign law is, and then to allege the facts, bringing the case within that foreign law (r). It will in general be assumed, that the law of a foreign country is the same as the law of this country in respect of (1) Huber v. Steiner, 2 Bing. N. C. 202; 2 Scott, 304; 1 Hodges, 206, S. C.; Harris v. Quine, L. R., 4 Q. B. 653. See Don v. Lipman, 5 Cl. & Fin. 1, 15, 16. (m) Byles on Bills, 5th American ed. p. 572. (n) De la Vega v. Vianna, 1 B. & Ad. 284; and see Shaw v. Harvey, M. & M. 526. (0) Scott v. Lord Seymour, 31 L. J., Exch. 457. (p) Leroux v. Browne, 12 C. B. 801. (q) Rothschild v. Currie, 1 Q. B. 43. See Rothschild v. Barnes, Q. B. 1842. (r) Benham v. Lord Mornington, 3 C. B. 133. negotiable instruments till the contrary be proved. Therefore, if a promissory note made in Scotland (s) be sued upon in this country, and there be any difference in the law of the two countries favorable to the defendant, it lies upon the defendant to prove that difference (†). (8) As to the law of Scotland, see 19 & 20 Vict. c. 60. (t) Brown v. Gracey, D. & R., N. P. C. 41, n., per Abbott, C. J., but see De la Chaumette v. Bank of England, and Gibbs v. Fre- CHAPTER XXXII. B. D D CHAPTER Who may sue on a bill. AFFIDAWIT TO HOLD TO Statement of the Sum Statement of Indorsements. 406 Character of Defendant 406 Advantages of suing on the Consideration 414 Tien Interposition of Equity 414 414 415 THE holder of the bill at the time of action brought, i.e. the person who is then entitled at law to receive its contents, is the only person who can then sue on it (a). It is a good defence, that at the time of action commenced the bill was outstanding in the hands of an indorsee. But if such indorsee held the bill as agent or trustee for the plaintiff, the plaintiff may sue, though not in actual possession of the (a) Emmett v. Tottenham, 8 Ex. 884; Gill v. Lord Chesterfield, ib.; and see Jungbluth v. Way, 25 L. J., Exch. 257; 1 H. bill (b), even though the agent's authority depend on a rati- CHAPTER fication after action brought (c). XXXIII. An indorser who pays an indorsee has no right to sue a Suing in the name prior party in the name of the indorsee without his consent, of another. and the Court has allowed the defendant, as well as the indorsee, whose name has been usurped, to raise the objection (d). consideration. Where there is a count on the bill, and a count on the Joining count on consideration, the plaintiff may be entitled to enter his verdict on both counts (e). parties actions Wherever, to the holder of a bill, several parties are Against what liable, he is not obliged to single out one only, but may may be brought. proceed at once in distinct and concurrent actions against them all, or against as many as he may think fit; but a substantial and not a mere technical satisfaction of the debt by any one will discharge all subsequent parties (ƒ). two parties. After a party has once levied the amount of the debt on Judgment against the goods of one party, the Court will grant a rule to restrain him from levying it over again on the goods of another, and have intimated that they would punish a plaintiff who should take out execution on both judgments (g). is liable in two If a party be liable on a bill in two or more capacities, he Where defendant may be the object of several actions on the same bill, at the capacities on the suit of the same plaintiff. Thus, where a party was sued same bill. jointly with others, as a drawer, and separately as the acceptor, of a bill, the Court, considering him liable in the two characters, and the plaintiff entitled to both remedies, which could not be comprised in the same declaration, refused to stay the proceedings in either, as vexatious (h). (b) Stones v. Butt, 2 C. & M. 416; 2 Dowl. P. C. 335; Dabbs v. Humphries, 10 Bing. 446; 1 Scott, 325, S. C.; 4 Moore & S. 285, S. C.; Ancona v. Marks, 7 H. & N. 686; National Savings Bank v. Tranah, L. R., 2 C. P. 556; 36 L.. J. 260. (c) Ancona v. Marks, ubi supra. (d) Coleman v. Bredman, 7 C. B. 871; but see Doe d. Vine v. Figgins, 3 Taunt. 440. (e) Ryder v. Ellis, 8 C. & P. 357. (f) He may now even join all defendants in one writ of summons; 18 & 19 Vict. c. 67, s. 6. (g) Windham v. Wither, 1 Stra. 515; Ex parte Wildman, 2 Ves. n. 115. (h) Wise v. Prowse, 9 Price, 393. |