The plaintiffs in an action on the second set of a foreign bills
of exchange which was protested for nonacceptance, with the
protests thereto attached, can recover without producing the first
of the same set or accounting for its nonproduction.
This was an action of assumpsit founded on the second of a
foreign bill of exchange by the endorsee against the endorser for
nonacceptance. The plaintiffs declared upon the "second" of the set
of exchange, which "second of the set" was protested for
nonacceptance, and the same, with the protest thereto attached, was
read in evidence to the jury. Whereupon a question arose whether
the plaintiffs could recover upon the said second of exchange
without producing the first of the same set or accounting for its
nonproduction, upon which the judges were opposed in opinion.
Whereupon the same was ordered to be certified to the Supreme Court
of the United States.
Page 38 U. S. 206
MR. JUSTICE STORY delivered the opinion of the Court.
The action was assumpsit, founded on the second part of a
foreign bill of exchange by the endorsee against the endorser for
nonacceptance. The plaintiffs declared upon the second of the set
of exchange, which second of the set was protested for
nonacceptance, and the same, with the protest attached thereto, was
read to the jury. Whereupon a question arose whether the plaintiffs
could recover upon the said second of exchange without producing
the first of the same set or accounting for its nonproduction, upon
which question the judges were opposed in opinion. And the same has
been accordingly certified to this Court under the act of
Congress.
We are of opinion that the plaintiffs are entitled to recover
upon the second of the set without producing the first or
accounting for its nonproduction. No authority has been referred to
which is
Page 38 U. S. 207
exactly in point, nor are we aware that the question has ever
been judicially decided. Mr. Starkie, in his work on Evidence (part
iv. 228, 1st edit.) has said, "In the case of a foreign bill drawn
in sets, both the sets should be produced." But for this
proposition he has cited no authority. The question must, then, be
decided upon principle. The object of drawing a foreign bill in
sets is for the convenience of the payee, or other holder, to
enable him to forward the same for acceptance by different
conveyances, and thus to guard against any loss, by accident or
otherwise, which might occur if there were but a single bill. But
from the very frame of the set, if one is paid or discharged by the
acceptor or other party liable on it, he is ordinarily discharged
from the others, since each part contains a condition that it shall
be payable only when the others remain unpaid. Now when one of the
set is protested for nonacceptance, and due notice is given to an
endorser, and on the trial of an action brought against him by the
endorsee, the same bill of the set on which the protest is made is
produced, that is
prima facie proof of his being
responsible thereon. Either of the set may be presented for
acceptance, and, if not accepted, a right of action presently
arises upon due notice against all the antecedent parties to the
bill, without any others of the set being presented, for it is by
no means necessary that all the parts should be presented for
acceptance before a right of action accrues to the holder. Under
such circumstances it is properly a matter of defense on the other
side to show either that some other bill of the set has been
presented and accepted or paid or that it has been presented at an
earlier time and dishonored, and due notice has not been given, or
that another person is the proper holder and has given notice of
his title to the party sued, or that some other ground of defense
exists which displaces the
prima facie title made out by
the plaintiff. The law will not presume that the other bills of the
set have been negotiated to other persons merely because they are
not produced. And the endorser is not put to any hazard or peril by
the nonproduction of them, since, like the acceptor, if he once pay
the bill without notice of any superior adverse claim by a
negotiation of another of the set to another party, he will be
completely exonerated. On the other hand, great inconveniences
might arise from compelling the plaintiff to produce the other
parts of the set or to account for their nonproduction, as he might
not be able satisfactorily to prove that they had not been
negotiated or that they had been lost. In short, if the plaintiff,
before he could recover, were required to produce or to account for
all the parts of the set, he would be obliged, in every case where
the bills had been transmitted by different conveyances abroad, to
arm himself with proofs of every stage of their route and progress
until they should come back again into his hands as preliminaries
to his right to recover upon their being dishonored. Such a
requirement would create most serious embarrassments in all
commercial transactions of this sort, and instead of bills drawn in
sets being a public convenience, they would be greatly
obstructed
Page 38 U. S. 208
in their negotiability, since the rights and the remedies of the
holder might be materially impaired thereby. We are therefore of
opinion that the question upon which the judges of the circuit
court were opposed ought to be answered in the affirmative, and we
shall send a certificate to the court accordingly.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Mississippi, and on the point and question on which the judges of
the said circuit were opposed in opinion and which was certified to
this Court for its opinion agreeably to the acts of Congress in
such case made and provided and was argued by counsel. On
consideration whereof it is the opinion of this Court that the
plaintiffs in this case could recover upon the second of a foreign
bill of exchange, which was protested for nonacceptance with the
protest thereto attached, without producing the first of the same
set or accounting for its nonproduction. Whereupon it is ordered
and adjudged by this Court that it be so certified to the said
circuit court accordingly.