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town, or place provided by the Commissioners immediately preceding the passing of this Act, of her Majesty's Treasury, under the Act of or of such shorter period as such clerk of the the Session holden in the 9 & 10 Vict. c. 95, peace or other officer shall have been in office, may be used for the purpose of holding such of the fees and emoluments in criminal prosepetty sessions, without any charge for rent or cutions received by such clerk of the peace or other payment, save and except the reasonable other officer; and the said Commissioners and necessary charges for lighting, warming, shall, upon the like application, also ascertain, and cleaning, when such public building is in such manner as they may think proper, the used for the purpose of holding such Courts total amount of fees and emoluments in criminal of Petty Sessions, and for all other expenses prosecutions received by such clerk of the necessarily incidental to the use of the said peace or their officer during any year after the building for the purposes of the said Courts: passing of this Act; and the said CommissionProvided always, that the necessary arrange- ers are hereby authorised and empowered, by ments shall be made so that the sittings of the warrant under their hands, to award to such said Courts of Petty Sessions shall not inter- clerk of the peace or other officer the deficiency, fere with the business of the county, city, when and so often as the same shall occur, beborough, town, or place or other business usu- tween the last-mentioned amount and the anally transacted in such town hall, court house, nual average amount so ascertained as aforeor other public building, or any purpose for said, and the sum so awarded shall be paid out which any such town hall, court house, or of any moneys which may be provided by Parother public building may be used by virtue of liament for that purpose; provided, that in all any Act of Parliament in that behalf. cases where any such clerk of the peace, by reason of his being paid by salary, under an order made by virtue of the Act of the Session holden in the 14 & 15 Vict. c. 55, shall pay such fees and emoluments as aforesaid to the treasurer of the county or borough for which he is clerk of the peace in aid of the county or borough rate, as the case may be, such deficiency, when so ascertained as aforesaid, shall be paid to the treasurer of such county or borough respectively.

16. Any one of the magistrates appointed to act at any of the police courts of the metropolis, and sitting at a police court within the metropolitan police district, or any magistrate appointed to act at the police courts of the Dublin metropolitan district, and sitting at a police court within the said district, or any stipendiary magistrate appointed for any city, town, liberty, borough, or district, and sitting at a police court or other place appointed in that behalf, may, in the case of persons charged before such magistrate, do alone all acts by this Act authorised to be done by justices of the peace in petty sessions, and all the provisions of this Act referring to justices in petty sessions shall be read and construed as referring also to such magistrate.

17. Nothing in this Act shall affect the provisions of the Act of the Session holden in the 10 & 11 Vict. c. 82, "For the more speedy Trial and Punishment of Juvenile Offenders," or of the Act of the Session holden in the 13 & 14 Vict. c. 37, "For the further Extension of Summary Jurisdiction in Cases of Larceny," or of the Summary Jurisdiction (Ireland) Act, 1851; and this Act shall not extend to persons punishable under the said Acts, so far as regards offences for which such persons may be punished thereunder.

18. And whereas the fees and emoluments of clerks of the peace for counties and boroughs, and of other officers of the Courts of Quarter Sessions, in criminal proceedings, may be seriously diminished by the operation and effect of this Act, and it is just and reasonable that full compensation for any such loss should be made in respect thereof to such clerks of the peace and other officers appointed before the passing of this Act: Be it therefore enacted, that immediately after the passing of this Act the Commissioners of her Majesty's Treasury shall, upon the application of any such clerk of the Peace or other officer, by such means and in such manner as they think proper, inquire into and ascertain the annual amount, to be computed upon an average of five years

19. And whereas by section 9 of the Act of the Session holden in the 2 & 3 Vict. c. 71, provision is made for payment out of the moneys in the hands of the receiver of the metropolitan police district of such salaries as her Majesty shall direct to the magistrates of the police courts of the metropolis, the salary to the chief magistrate not being more than 1,200., and to each of the other magistrates not more than 1,200l.: And whereas after the passsing of the said Act the salary of the chief magistrate was fixed at 1,2007., and the salaries of the other police magistrates at 1,000l.: And whereas the duties of the said chief and other magistrates have increased, and are subject under this Act to be further increased: And whereas the salaries of such other magistrates have, in consequence of such increase of duty, been increased from 1,000l. to the limit permitted by the said Act, and it is expedient to authorise such increase of the salary of the said chief magistrate as hereinafter mentioned: The salary to be paid out of the moneys aforesaid to the said chief magistrate shall be such yearly sum, not exceeding 1,500l. as her Majesty may direct.

20. And whereas by the Act of the Session holden in the 15 & 16 Vict. c. 73, certain powers were granted and provisions made for the payment to the several clerks of assize of annual sums for salaries, and for the expenses of their office, in respect of their duties as associates, in lieu of the fees and emoluments appertaining to those duties: And whereas it is expedient that the principle of payment by salary in lieu of fees should be further provided

SEPT. 15, 1855.]

New Statutes effecting Alterations in the Law.

381

money, or valuable security," as used in the Act of the Session holden in the 7 & 8 Geo. 4, c. 29; and in the case of any "valuable security" the value of the share, interest, or deposit to which the security may relate, or of the money due thereon or secured thereby, and remaining unsatisfied, or of the goods or other valuable thing mentioned in the warrant or order, shall be deemed to be the value of such security.

24. This Act shall not extend to Scotland.

SCHEDULE.

FORM (A.)
Conviction.

for, and that the clerks of assize should be so paid for the performance of all their other duties: Be it therefore enacted, That all fees and emoluments heretofore payable to the clerks of assize for the performance of their duties as clerks of the Crown shall be and they are hereby abolished; and all the powers and provisions made by the before-mentioned Act, except as is hereinafter provided, for the payment of clerks of assize by salary in lieu of fees, in respect of their duties as associates, shall be and the same are hereby extended and made applicable to the payment of clerks of assize by salary, and the expenses of their offices, in lieu of fees and emoluments, for the performance of their duties as clerks of the Crown and of all other duties appertaining to the office of clerk of assize: Provided always, that the Commissioners of her Majesty's Trea- Lord sury for the time being shall fix and determine A. B., being charged before us the undersigned the amount of salary to be allowed to any subof her Majesty's Justices of the Peace ordinate officer now employed or who shall for the said [county], and consenting to our hereafter be employed by any clerk of assize, and shall be empowered to order the payment of such salary to the said officers in the first instance, and not through the medium of the clerk of assize: Provided also, that the salaries and expenses of the officers of the said clerks of assize for the whole of their duties on the criminal and civil sides of the Court shall be paid out of any moneys which may be provided by Parliament for that purpose.

21. And whereas by Acts of the 12 and 14 Rich. 2, payments are provided for justices of the peace and their clerks in each county, as wages by the day for the time of their sessions, to be payable by the sheriff, as therein mentioned, and in several counties in England sums are claimed from the sheriff's and paid in respect of such statutory wages, and it is expedient that such payments should be discontinued: Be it therefore enacted, That so much of the several Acts of the 12 Rich. 2, c. 10, and of the 14 Rich. 2, c. 12, or of any other Act now in force as directs or authorises the payment of wages to justices of the peace and their clerks for the time of their sessions, shall be repealed.

22. And whereas it is expedient to amend the law as to witnesses in cases of wilful or malicious injuries to property: Be it further enacted, That in all cases where any justice or justices of the peace have or shall hereafter have power to order a sum of money to be forfeited and paid to the party aggrieved, as amends or compensation for any injury to property, real or personal, the right of such party to receive the money so ordered to be paid shall not be affected by such party having been examined as a witness in proof of the offence, any Law or Statute to the contrary notwithstanding.

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23. In the interpretation of this Act "county" shall be construed to include riding, parts, liberty, and division of a county; "borough to include city, county of a city or town, and town corporate; "property" to include every thing included under the words "chattel,

BE it remembered, That on the

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in the year of our in the said [county],

deciding upon the charge summarily, is con-
victed before us, for that [he the said A. B.,
&c., stating the offence, and the time and place
when and where committed]; and we adjudge
the said A. B. for his said offence to be impri-
soned in the [house of correction] at
in the said [county], [and there kept to hard
labour] for the space of

Given under our Hands and Seals, the day
and year first above-mentioned, at
in the [county] aforesaid.

WE

FORM (B.)

J. S.

H. M.

(L.S.) (L.S.)

Certificate of Dismissal.

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in
of our Lord
in the
said [county] A. B. being charged before
us, and consenting to our deciding upon the
charge summarily, for that [he the said A. B.,
stating the offence charged, and the time and
place when and where alleged to be committed,]
we did, having summarily adjudicated thereon,
dismiss the said charge.

Given under our Hands and Seals this
day of
in the [county]
aforesaid.

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Conviction upon a Plea of Guilty. Be it remembered, That on the to wit. in the year of our Lord in the said [county], A. B., being charged before us, the undersigned of her Majesty's Justices of the Peace for the said [county], for that [he the said A. B., &c., stating the offence, and the time and place when and where committed], and pleading guilty to such charge, he is thereupon convicted before us of the said offence; and we

382 Standing Orders of the Houses of Parliament.—Mercantile Law. [LEGAL OBSERVER,

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THE Standing Orders of both Houses of Parliament relating to Private Bills have been revised, as is usual, at the close of each Session, and some alterations and additions have been made.

The principal alterations in the orders of the House of Commons are as follow::

All opposed Private Bills of whatever class or description, are to be referred to a Committee of five members not locally or otherwise interested, and local members are no longer to sit upon the Committee as heretofore.

In the case of Bills of the first class, by which any lands or houses are intended to be taken, and in respect of which, by an order of last Session, plans are required to be deposited, the published notices are to contain a description of all the termini of the work proposed to be authorised by the Bill, together with the names of the parishes, &c., through which it passes, and also the time and place of deposit of the plan with the clerk of the peace and parish clerks.

The Standing Order relating to cross sections has been made conformable to the corresponding order of the House of Lords.

An addition has been made to the 136th Order, empowering the Committee on a Railway Bill, in cases where the clause requiring the company to enter into a bond for the completion of the line is not applicable, to make such other provision for securing that object as they shall deem necessary.

There are several other alterations and additions, some of which are merely verbal, and others which relate to the practice and proceedings in the House after the introduction of the Bill.

The alterations and amendments in the Orders of the House of Lords are all purely verbal.'

MERCANTILE LAW.

SECOND REPORT OF THE COMMISSIONERS.

To the Queen's Most Excellent Majesty in her High Court of Chancery. [Continued from page 369.]

II. DEBTOR AND CREDITOR.

Minors engaged in Trude.

In England and Ireland, a minor, or person under the age of 21, is not liable on any contract, except for necessaries, as food, lodging, and clothing; in Scotland, males under the age of 14, and females under 12, are not bound by any contract, although their property is liable for necessaries furnished for their benefit; but after those ages, if in trade, alone or in partnership, they are bound by contracts made in that trade. We prefer the Scotch rule as to the liability of the infant trader. No doubt there is and must be some difficulty in determining what is a sufficient trading to make the infant a trader within the rule; that, however, is a difficulty rather of fact in each case than of principle. But it does seem unjust towards the minor, and unreasonable, that he should and consequently on equal terms with others, be deprived of the power of dealing on credit, if he can find persons willing to trust him as tenant, employer of labour, or purchaser of goods. It is a disability on him, not merely of getting into debt to supply personal wants by purchasing for his own consumption, but of getting credit with a view to make a profit of the articles purchased on credit. It would seem almost as reasonable to avoid the contracts of a minor for ready money. Moreover, frauds this rule of the English and Irish Law on are continually practised by infants through persons dealing with them in the belief they are of full age. We therefore recommend the assimilation of the Law of England and Ireland on this head to that of Scotland; and of course,

in the capacity of contract, which we think should be given to minors in England and Ireland, we include the power of binding themselves by bills and notes, as in Scotland.

Married Women engaged in Trade. There is a somewhat similar difference in the laws as to married women. In Scotland, a married woman whose husband is residing in a foreign country, and who is engaged in trade, can make contracts binding on her and capable of being enforced by her. In England and Ireland, with certain exceptions, the rule is different; her contracts in such case cannot be name. enforced against her, except in her husband's In the case of married women living apart from their husbands, and carrying on a a trade, it would probably be advantageous to them, if they were enabled to bind themselves tiable instruments; and they would be preby contracts made in their trade, and by negovented in some instances from perpetrating frauds, by using their coverture as a protection

1 From the Circular of Messrs. Gregory & Co. from the payment of debts, which have been

fairly contracted. But in order to give the

SEPT 15, 1855.]

Mercantile Law-Second Report of the Commissioners.

creditors in such cases an efficient remedy for the recovery of such debts, it would be necessary take some new law, settling the title to property acquired by married women under such circumstances; and that can hardly be done a satisfactory manner, without considering the general state of the laws relating to the property of husband and wife, which we abstain from doing for two reasons,-first, because the subject is not within the scope of our commission, and secondly, because we think that it would be injudicious to introduce any a terations into an important and extensive systein of law in order to effect an object of comparatively little importance.

Evidence of Discharge from Performance of

Contract.

There is an important difference in the laws of the two countries in relation to a discharge from the performance of a contract. In Eng land and ireland, the discharge may be proved as an ordinary fact, unless the question arises in a Court of Common Law upon a contract under seal, or of a more solemn nature, as of record; in Scotland the discharge must be proved by writing, or by the oath of the person supposed to have given the discharge; in other words, by him who denies it: the difference being-not as to the power of giving an oral discharge-but as to the mode of proving it. On this point we prefer the English and Irish Law, having come to the conclusion that the fact of discharge-as well from liability on bills and notes, as in other cases-should be deemed capable of being proved by any legitimate evi

dence.

III. PRINCIPAL DEBTOR AND SURETY. Evidence of Guarantee.

In England, the Statute 29 Car. 2, c. 3, s. 4, enacted, that "no action shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person, unless the agreement upon which such action shall be be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised;" and a similar enactment was made for Ireland in 7 Wm. 3, c. 12, s. 2. But in Scotland, although in general a mercantile guarantee can be proved only by writing or the oath of the cautioner, yet it may be established by oral evidence, where it is an integral part of a contract between the creditor and principal debtor, which may competently be proved by oral evidence. We prefer the rule that prevails in England and Ireland on this subject, for it is one on which oral communications may frequently lead to mistakes. A vendor of goods may very honestly suppose that a third person means to guarantee the payment of the debt, when the latter may just as honestly mean only to express an opinion as to the solvency of the buyer, and to stop short of becoming security for him. Such mistakes lead to litigation and a

383

conflict of testimony much to be regretted, whereas the English and Irish rule is simple, and easy of application, except in one particular, viz., the statement of the consideration for such guarantee; a matter which has occasioned some litigation, and, we fear, some failure of justice, in the English Courts. The majority of us are not disposed to interfere with the maxim that prevails in England and Ireland, "ex nudo pacto non oritur actio," but would preserve in those parts of the United Kingdom the rule that some consideration is essential to a valid contract; but we think that although a contract of guarantee to be valid should be in writing, oral evidence of the consideration for such contract should be competent.

66

Analogous to guarantees are "representations and assurances as to the character, conduct, credit, ability, trade, or dealings of any other person, to the intent or purpose that such other person may obtain credit, money, or goods." By the 9 Geo. 4, c. 14, s. 6, these in England and Ireland are required to be in writing, and signed by the party to be charged therewith; and we think that the same rule should be extended to Scotland, if it does not already exist there,-a point upon which doubts are entertained.

Guarantee to or for a Firm.

With regard to the duration of a guarantee, it appears to be doubtful whether any substantial difference exists between the laws of the different parts of the United Kingdom; but to extinguish such doubts it may be expedient to settle by an enactment when a guarantee given to or for a firm composed of several persons shall be deemed to have been extinguished by a change in the parties composing such firms. We would be disposed to recommend that a of two or more partners, should cease as to guarantee, whether to or for a firm consisting fresh transactions, when a change takes place in the partners, unless the contrary appears to be the intention, either expressly or by impli

cation.

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If in an engagement by principal and cautioner the latter binds himself only as a cautioner, he has in Scotland a privilege, technically called the benefit of discussion; which means that he cannot be compelled to pay the debt until a step of execution, called a charge, be used against the principal debtor. In England and Ireland the surety has no such indulgence. Where the engagement of the principal and surety is joint, a suit for performance of the engagement must be directed against both, yet having obtained judgment or decree, the creditor is at liberty to enforce payment exclusively against the surety being living, and if there be two or more sureties, against any one of them who is living; such surety being left to adjust with the principal, and with the other sureties, if any, his rights to indemnification and contribution. When the obligation of the principal and surety is expressly joint

and several, the creditor need not even sue the impossible to estimate the extent of this loss, principal debtor before proceeding against the surety. As the object of a creditor in requiring a surety is generally to obtain payment of the debt when it becomes payable without the necessity of having recourse to legal proceedings, we think that the surety should not be indulged with the benefit of discussion, and that in this respect the law of Scotland should be assimilated to the Laws of England and Ireland.

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it is a salutary rule, that when a creditor so interferes with the interests of the sureties, they should be entirely discharged; and we recommend that this should be the rule in Scotland as well as in England and Ireland. But we make this recommendation only on the clear ground of equity above stated, and do not suggest the introduction into the Law of Scotland of a theory on which the practical rule is founded in the laws of the other countries, as to the effect of the entire extinction of a joint obligation by the discharge of any of the obligants.

opinion as to other kinds of transactions), we do not see why such a discharge should be ineffectual, although it be not embodied in writing, if it can be satisfactorily proved by oral evidence. We therefore think that this should be the rule in all parts of the United Kingdom. IV. BILLS AND NOTES.

In Scotland a surety has likewise the privilege, on his performing the obligation, of de- Evidence of Discharge of Guarantee. manding from the creditor an assignation of According to the Laws of England and Irethe creditor's claim, not only on the principal land the discharge of a written guarantee may debtor, but also on co-cautioners, and of all be proved without writing. In Scotland such securities held by the creditor from or against a discharge is proveable only by the writing of the principal debtor, unless such assignation the creditor, or by his unqualified admission on would operate to the detriment of the creditor." oath of reference." In regard to guarantees In virtue of such assignation the surety, in in mercantile transactions (and we give no order to operate reimbursement of his advances, may exercise all the rights of the original creditor, excepting that in claiming against his co-sureties he must deduct the amount of his own rateable share of the debt. In England and Ireland the surety cannot have the benefit of such bonds or judgments or other securities as are held to be extinguished by the performance by the surety of the principal obligation; and is entitled only to an assignment of any bond or security by the principal debtor other than that which is so extinguished. The equity and the propriety of the Scottish rule are obvious, inasmuch as the surety obtains much aid in operating his relief from the hardship of having been compelled to pay another party's and married women to bind themselves by The laws differ as to the capacity of minors debt; and yet no detriment is thereby inflicted such instruments. Our opinion on this subon any other party. The theory on which inject is embodied in our observations under the England and Ireland a surety is prevented head of DEBTOR AND Creditor. from obtaining a similar privilege is a subtlety which ought not to prevent the adoption of the Scottish equitable rule into the laws of those countries, and we recommend that such adop-in tion should take place.

Discharge of Surety.

Between the Laws of England and Ireland and of Scotland affecting negotiable securities, we have found considerable differences to exist; and we are of opinion that those laws in many particulars may be assimilated with advantage. Parties.

Form.-Absence of Date.

With regard to the form of bills or notes: Scotland, if they are issued without date, that omission can only be supplied by written evidence; whereas in England and Ireland, as in the case of deeds without date, which are In England and Ireland an unqualified dis- treated as made when delivered, they are deemcharge by the creditor of one of several sureties ed to be dated on the day when they are issued, operates as a discharge of all of them. In and of which oral evidence may be given. We Scotland such a discharge of one would ope- believe the issue of bills and notes without date rate as a discharge of the co-sureties only to to occur very rarely, and then by the neglithe extent to which the one, in whose favour gence of the maker; and if any inconvenience the discharge is granted, is bound to contri- arises from permitting the time when such an bute to the relief of the others. The Scottish instrument was issued to be proved, by oral rule appears to proceed on an assumption that evidence, it seems reasonable that the careless the co-sureties suffer no detriment from such a maker should suffer it; and we recommend discharge beyond the loss of a claim on the that in future the English and Irish rule on discharged surety for a contribution of his this subject should be adopted in Scotland; rateable share of the debt. But a majority of but inasmuch as the instrument to found sumus think that there is a fallacy in such assump-mary diligence should be perfect on the face tion, because the co-sureties lose also the be- of it, we do not propose any alteration with nefit of the discharged surety's assistance and regard to that remedy. co-operation (on which they may have mainly relied on undertaking the engagement) in endeavouring to make the principal debtor him- There is another difference prevailing as to self perform his obligation; and that as it is the form of a bill or note, which we think it

Form.-Negotiability.

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