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*The Attorneys' and Solicitors' Act, 6 & 7 Vict. c. 73, s. 21, enacts, that an application to tax an attorney's or solicitor's bill must be made within twelve months after payment. Where a promissory note is given for an attorney's bill, payable at a future day, the twelve months run from the time the note was paid, and not from the time it was given, unless it were treated as payment at that time.(j)

If the debtor, instead of paying the creditor, directs him to take a bill of a third person, which the creditor does, and the bill is dishonoured, the liability of the original debtor revives;(k) and it is not necessary to give the original debtor notice of the dishonour.(1) But if the debtor refer his creditor to a third person for payment generally, and the creditor having the option of taking cash, elects to take a bill, which is dishonoured, the original debtor is discharged.(m)

The consequence of giving a bill to an auctioneer, or other agent who has no authority to receive anything but cash, is, that the party giving the bill is not discharged from the demand of the principal, although the bill fell due at the period when the debt ought to have been discharged, and is regularly paid to the holder.(n)

The taking of his separate bill from one of several partners for a joint debt, will, as we have seen, discharge the others. Such transaction imports an agreement between the creditor and the firm, that the creditor shall rest on the liability of the one partner alone, and shall discharge the other; that is, an accord and the separate bill is a satisfaction. For the separate liability of one partner may, in many cases, be more advantageous than his joint liability with others. It is not extinguished, at law, by his pre-decease; in the event of a separate adjudication of bankruptcy against him, it would be satisfied

though due on a parol lease, is of as high a nature as an obligation. 11 Vin. Ab. 289.

(j) Sayer v. Wagstaff, 5 Beav. 415; In re Harries, 13 M. & W. 3, S. C.; In re Wilton, Q. B.

(k) Marsh v. Pedder, 4 Camp. 257; Holt, N. P. C. 72, S. C.; Ex parte Dickson, cited 6 T. R. 142; Taylor v. Briggs, M. & M. 28; and see Robinson v. Read, 9 B. & C. 449; 4 M. & Ry. 349, S. C.

(1) Swinyard v. Bowes, 5 M. & Sel. 62.

(m) Strong v. Hart, 6 B. & C. 160; 9 Dowl. & R. 189; 2 C. & P. 55, S. C.; Smith v. Ferrand, 7 B. & C. 19; 9 Dowl. & R. 803, S. C.; and see Baillie v. Moore, 15 L. J. 169, Q. B.; 8 Q. B. Rep. 489, S. C.

(n) Sykes v. Giles, 5 M. & W. 645.

before joint *debts; (o) and it avoids difficulties which might arise in suing him with another defendant.(p)

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Where the creditor's rights against an original debtor are reserved, whether by express agreement,(g) or by the nature of the transaction, or by the original debtor's name being on the new bill, the taking of the bill of one of several, or of a stranger, does not discharge the original debtor.

Where a debtor indorses a bill to his creditor, the creditor cannot sue for his debt without proving presentment of the bill and notice of dishonour.(r) But where he does not indorse it, it seems sufficient for the creditor, when suing for the original debt, to show that the bill still remains in his hands, without proving presentment(s) or notice of dishonour;(t) for that is presumptive evidence of dishonour, sufficient to throw it on the defendant to show that the bill has been paid.

If the party who gave the bill knew at the time that it was of no value, the holder, on discovering the fraud, may immediately sue such party on his original liability; or, if the bill were given for goods delivered at the time, he may disaffirm the contract, and sue in trover for the goods. Thus, where a vendee, under terms to pay for goods on delivery, obtained possession of them by giving a check which was afterwards dishonoured, Lord Tenterden said, "If the vendee had reasonable ground to expect that the check would be paid, the transaction was not fraudulent, and the property would pass to him: if he had not reasonable ground for so expecting, the transaction was fraudulent, and the vendors are entitled to recover their property in an action of trover."(u)(1)

(0) 6 Geo. 4, c. 16, s. 62.

(p) Evans v. Drummond, 4 Esp. 89; Reed v. White, 5 Esp. 122; Thompson v. Percival, 5 B. & Ad. 925; 3 N. & M. 667, S. C.

(1) Bedford v. Deakin, 2 Stark. 178; 2 B. & Ald. 210, S. C.

(r) Kearslake v. Morgan, 5 T. R. 513; Bridges v. Berry, 3 Taunt. 130.

(s) Goodwin v. Coates, 1 M. & Rob. 221.

(t) Bishop v. Rowe, 3 M. & Sel. 362.

(u) Hawes v. Crowe, 1 R. & M. 414; Puckford v. Maxwell, 6 T. R. 52; Owenson v. Morse, 7 T. R. 64; Bishop v. Shillito, 2 B. & Ald. 329, n. ; Taylor v. Plumer, 3 M. & Sel. 562; Brown v. Kewley, 2 B. & P. 518; Gladstone v. Hadwen, 1 M. & Sel. 517; Noble v. Adams, 7 Taunt. 59; Earl of Bristol v. Wilsmore, 1 B. & C. 514; 2 D. & R. 755, S. C.; Kilby v. Wilson, 1 R. & M. 178.

(1) Markle v. Hatfield, 2 Johns. 455. Ontario Bank v. Lightbody, 13 Wendell,

101. Lowrey v. Murrell, 2 Porter, 280. Bayard v. Shunk, 1 Watts & Serg. 94.

A bill given in discharge of a debt, and then lost, is payment;(v) but not if proved to be destroyed.

*We have already seen(w) that it has been held that, where [*307] a bill or note is delivered without indorsement, not in payment of a pre-existing debt, but in payment or exchange for goods or other securities sold at the time, such a transaction amounts in general to a sale of such a bill or note, and to an election by the transferee to take it as money with all its risks, and, consequently, to complete payment by the transferer.(x)(1)

If, in payment of dishonoured bills, other bills are given for the sum due, and the first remains in the hands of the holder, if the latter bills are not paid, the liability of parties on the former revives.(y) And even if the new bill be duly paid, the holder may recover on the old bill, if the amount of principal and interest due thereon, is not covered by the amount of the new bill.(z) The holder of an old bill for the full amount of which, a new bill is given, cannot sue on it, till the new one is at maturity.(a)

The taking of a bill or note in payment will, in general, determine a lien. Thus, where the owner of a ship having a lien on the goods, until the delivery of good and approved bills, took a bill of exchange in payment, and, though he objected to it at the time, afterwards ne

(v) Woodford v. Whiteley, M. & M. 517. N. B. In this Chapter the word payment is not always used in its strict legal sense.

(w) Chapter on Transfer; and see p. 229.

(x) Camidge v. Allenby, 6 B. & C. 373; 9 D. & R. 391, S. C.; Ward v. Evans, 2 Ld. Raym. 928; Brown v. Kewly, 2 B. & P. 518. See the Chapter on Transfer. (y) Ex parte Barclay, 7 Ves. 597; Bishop v. Rowe, 3 M. & S. 362; Dillon v. Rimmer, 1 Bing. 100; 6 Moo. 427, S. C.

(z) Lumley v. Musgrave, 4 Bing. N. C. 9; 5 Scott, 230, S. C. (a) Kendrick v. Lomax, 2 C. & J. 405; 2 Tyr. 538, S. C.

(1) Patten v. Ash, 7 Serg. & Rawle, 116. People v. Howell, 4 Johns. 296. Dennis v. Hart, 2 Pick. 204.

Where the vendor of goods is induced to take the note of a third person as pay ment, by a fraudulent representation of the solvency of that person, the note is no satisfaction. Pierce v. Drake, 15 Johns. 475. Martin v. Pennock, 2 Barr,

Where a man in payment of a debt to another gives him a counterfeit bill, if he has notice that it is counterfeit within a reasonable time he is bound to take it back, and the question of reasonable time is one for the jury. Simms v. Clark, 11 Illinois, 137. Ramsdale v. Hor ton, 3 Barr, 330. Raymond v. Baur, 13 Serg. & Rawle, 318.

gotiated it, it was held that such negotiation amounted to an approval of the bill by him, and to a relinquishment of his lien on the goods. (b) So, where, for goods sold, the vendor took the vendee's promissory note, and negotiated it with his banker, and it was subsequently dishonoured, but continued outstanding in the banker's hands, it was held that the vendor had, by taking the note and negotiating it, relinquished his lien, and that the lien did not revive on the dishonour of the note, the note continuing in the banker's hands.(c)

But if a bill or note is taken, and, remaining in the vendor's hands is dishonoured, the goods not being delivered, it should seem that the lien revives.(d)

On the sale of real property the taking and negotiating a *note or bill, does not amount to a relinquishment of the lien(e) on the land.(ƒ)

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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.(g)

FOREIGN bills (a) are often drawn in sets: that is, exemplars or parts

(b) Horncastle v. Farran, 3 B. & Ald. 497; 2 Stark. 590, S. C.

(c) Bunney v. Poyntz, 4 B. & Ad. 568; 1 N. & M. 229, S. C.

. (d) New v. Swain, 1 Dans. & Ll. 193.

(e) Ex parte Loring, 1 Rose, 19; Grant v. Mills, 2 V. & B. 306. See as to the effect of taking a void check, Bond v. Warden, 14 L. J. 154, Chan.

(f) As to the circumstances under which the transfer of a bill is payment in bankruptcy, see the Chapter on Bankruptcy.

(g) Chitty on Bills, 8th ed., 80, note b. p. 84.

(a) Il existe dans la negotiation des lettres de change un usage qui la facilite

of the bill are made on separate pieces 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.(b)(1)

A firm, who were both payees and acceptors of a foreign bill in three [*310] 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. (c)

But as between bona fide holders for value of different parts of the

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 rapporte au milieu du seizème siècle.

Il n'est pas sans intérêt de reproduire ses observations fort sensées :

"Et de autant que les lettres de change sont des papiers volans, des petits poulets, ou billets, Polizza di Cambio, qui se peuvent facilement esdirer et perdre. Comme aussi le banquier correspondant à Paris peut manquer au paiement, c'est pourquoi, tant le bourgeois qui a tiré, que son commissionnaire residant à Paris, ont chacun besoin d'une copie pour faire leurs diligences. A cette cause le banquier doit écrire, et fournir par précaution deux ou trois copies de la même lettre de semblable teneur." Nouguier des Lettres de Change, 1, 104.

(b) The facility which drawing a bill in sets affords for its presentment, has been held to accelerate the time within which a bill, payable after sight, ought to be presented for acceptance. Straker v. Graham, 4 M. & W. 721.

(c) Holdsworth v. Hunter, 10 B. & C. 449.

(1) The whole of a set of exchange constitutes but one bill, and payment or cancelling of either of the set extinguishes all. Durkin v. Cranston, 7 Johns. 442. Ingraham v. Gibbs, 2 Dall.

134. Miller v. Hackley, Anthon, 68.

As to the different sets of bills, see Kenworthy v. Hopkins, 1 Johns. Cas. 107.