matter of convenience. Where the instrument is signed by a marksman, or by initials only, it may be important to a have the act attested by a witness, in order to establish the genuineness of the mark or initials, and the occasion of its execution. When there is an attesting witness, the signature or mark to the instrument must be proved by him and not otherwise, unless by reason of his death, absence from the country, or other cause, he can not be produced at the trial ; 8 but when such is the case, the next best evidence, that is, proof of the party's signature or mark, is not required, but proof of the attesting witness' signature is required instead. Such is also the rule where the attesting witness is blind 5 or insane. Such are the rules of evidence of the common law on this subject. In regard to promissory notes the rule has been so far relaxed, in some cases, that the admission of the party that he executed the instrument may be shown without calling the subscribing witness. And the doctrine has been repudiated that those who attest such an instrument are agreed upon as the only witnesses to prove it; but only applied where the note is fully identified, and there is no chance of mistake in respect to what the party intended to admit.8 In England, 1 2 Chitty on Bills (13 Am. ed.), (*166], 190 ; Story on Notes, $ 54; Edwards on Bills, 175. Story on Notes, $ 54. • Greenleaf on Evidence, SS 569, 572; Chitty on Bills [*166), 190 ; Edwards on Bills, 175; 2 Parsons N. & B., 474 ; Stone v. Metcalf, i Starkie, 53; Lemon v. Deane, 2 Camp., 636; M'Craw v. Gentry, 3 Camp., 232; Burt v. Walker, 4 Barn. & Ald., 697 ; Richards v. Frankum, 9 Car. & P., 211; January v. Good 9 man, i Dallas, 208. * Greenleaf on Evidence, $ 575; Story on Notes, $ 54; Chitty on Bills (13 Am. ed.), (*166], 190; 2 Parsons N. & B., 480; Page v. Newman, Mood. & M., 79. Kay v. Brookman, Id., 286; Shiver v. Johnson, 2 Brev., 397 ; Dunbar v. Marden, 13 N. H., 311; Lyons v. mes, 11 S. C., 429; Bussey v. Whitaker, 2 N. & McC., 374. Doury, 1 Ld. Raym., 734. But see Cronk v. Frith, 9 Car. & P., 197. • Nelson v. Whittall, 1 B. & Ald., 22, note; Carrie v. Child, 3 Camp., 293. Shaver v. Ehle, 16 Johns, 291 ; Hall v. Phelps, 2 Id., 451; Henry v. Bishop, 2 Wend., 575; Williams v. Floyd, 1. Penn. St., 499; Hodges v. Eastman, 12 Vt., 358; Edwards on Bills, 176. • Shaver v. Ehle, 15 Johns, 201 ; Edwards on Bills, 176. Wood v. 7 by statute of 1854, such instruments may be proved by other than subscribing witnesses." If the attesting witness is not able to prove the signature, by reason of not having seen the party write, secondary evidence is admissible. So, if he does not recollect his own signature, it may be proved by other testimony ;; and so if his own testimony is not clear." 2 SECTION III. THE SEVERAL PARTS OF A FOREIGN BILL CALLED A SET. $ 113. In order to avoid delay and inconvenience which may result from the loss or miscarriage of a foreign bill, and to facilitate and expedite its transmission for acceptance or payment, the custom has prevailed from an early period for the drawer to draw and deliver to the payee several parts of the same bill of exchange, which may be forwarded by different conveyances, and any one of them being paid, the others are to be void. These several parts are called a set, and constitute in law one and the same bill. Sometimes there are four, but usually three parts. And if any person undertakes to draw or deliver a foreign bill to another person, it seems that he is bound to deliver the usual number of parts, and it has been thought that the promisee may in such a case demand as many parts as he pleases. But this is questionable.' 3 Edwards on Bills, 176. ? Lemon v. Dean, 2 Camp., 636. Shiver v. Johnson, 2 Brev., 397 ; Quimby v. Buzzell, 16 Me., 470. *Walker v. Warfield, 6 Metc., 466. Story on Bills, $ 66; Edwards on Bills, 161; Byles [*376], 555; Chitty (*155], 178; 1 Parsons N. & B., 58, 60; Thomson on Bills, 45; Bayley on Bills, 24. 6 7 Ibid. * Kearney v. West Granada Mining Co., 1 H. & N., 412; Byles (*376], 555 ; Thomson, 46, 92. 'Chitty on Bills (*154], 178; Edwards, 151 ; Byles (*376], 556. 'Story on Bills, $ 66. In Europe, it is not unusual for the original bill to be forwarded for acceptance, and, in the meantime, a copy of it negotiated. But this practice is not followed in England or in the United States. § 114. It is usual for the drawer, and to his protection it is essential, to incorporate in each part of the set, a condition that it shall only be payable provided the other remain unpaid ; in other respects the parts are identical in terms. Thus the first part should be expressed : “Pay this my first of exchange—second and third remaining unpaid "; where there are three parts, or where there are four parts, there should be added, “second, third, and fourth remaining unpaid." This condition operates as notice to the world that all the parts constitute one bill, and that if the drawee pay any part the whole is extinguished. The condition should mention every part of the set, for if a person intending to make a set of three parts should omit the condition in the first, and make the second with a condition, mentioning the first only, and in the third take notice only of the other two, he might be obliged to pay each, for it would be no defence to an action by a bona fide holder on the second that he had paid the third, nor to an action on the first that he had paid either of the others. But an omission is not material, perhaps, which upon the face of the condition must necessarily have arisen from a mistake, as if mention of an intermediate part were omitted: for instance, “pay this my first of exchange, second and fourth unpaid." § 115. The indorser or transferer is bound to pass to his 1 4 "Byles on Bills (Sharswood's ed.) (*377], 557. ? 1 Parsons N. & B., 60. • Thomson on Bills, 45; Bayley, 24; Chitty (*155), 178. * Holdsworth v. Hunter, 10 B. & C., 449; Wells v. Whitehead, 15 Wend., 527 ; Durkin v. Cranston, 7 Johns, 442; Ingraham v. Gibbs, 2 Dallas, 134 Byles (*376], 555; Edwards, 161. • Davison v. Robertson, 3 Dow., 218; Thomson on Bills, 45 ; Byles (Sharswood's cd.) (*376), 556; Chitty [*155], 178. • Chitty [*155), 178. 3 transferee all the parts of the bill in his possession, and he may be even liable to hand them over to a subsequent transferee if he have them still in his possession. If the indorser improperly circulate two parts to distinct holders he may be liable on each." § 116. The drawee should accept but one part of the And having accepted one part, he should not pay another part, for he would still be liable on the accepted part. When, however, he pays the part he accepts, the whole bill is extinguished. The party entitled to the bill * should claim and hold all the parts, for payment of any one part to another person might defeat him. But he to whom any one part of the set is first transferred acquires a property in all the other parts, and may maintain trover even against a bona fide holder, who subsequently, by transfer or otherwise, gets possession of another part of the set.® For it is the duty of the person taking one part to inquire after the others; and he is advertised by their absence, that they, or one of them, may be outstanding in the hands of a prior bona fide holder.? $ 117. In a suit against the drawer or indorser, the very part of the set which has been protested, must be produced, and there is authority for the view, that in a suit against the indorser, all of the set must be produced, or their non-production satisfactorily accounted for." But the United States Supreme Court has held that, when the part which has been protested is produced, it is sufficient. The 1 3 Pinard v. Klockman, 32 L. J. Q. B., 82; 3 Best & Smith, 388 (113 E. C. L. R.) * Holdsworth v. Hunter, 10 B. & C., 449. 'Holdsworth v. Hunter, 10 B. & C., 449; Chitty on Bills (*155], 178; Byles [*377), 556. • Ibid. * Holdsworth v. Hunter, 1o B. & C., 449. * Perreira v. Jopp (1793), cited 10 B. & C., 450, note a , Chitty, Jr., 1477 Holdsworth v. Hunter, 10 B. & C., 449; Byles on Bills (*376], 556. 'Lang v. Smyth, 7 Bing., 284, 294 (20 E. C. L. R.); 5 M. & P., 78. $ indorser may defend by showing that another person than the plaintiff has a superior adverse claim by reason of prior acquisition of another part, but unless he can prove that fact, the law protects him in making payment to the holder of the part protested, and requires no explanation from him as to the whereabouts of the other parts." Downes v. Church, 13 Peters, 205, Story, J. But see Wells v. Whitehead. 15 Wend., 527, and Edwards on Bills, 163. |