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SEPT. 15, 1855.]
Mercantile Law-Second Report of the Commissioners.
necessary to notice. In England and Ireland a bill or note is not negotiable unless made payable to order or to beurer. In Scotland it is. On the one hand, it may be said, that the intention of parties is to be collected from their words, and if a bill or note is not in terms made payable to order or to bearer, it cannot be presumed that the parties intended it to be So. On the other hand, it has been observed, that bills and notes are essentially negotiable instruments, and that it must be presumed that the parties intended them to be so, unless the contrary be expressed; and we think this the more convenient rule, and that in future, throughout the United Kingdom, bills and notes should be negotiable, unless the negotiation of them is expressly on the face of them restricted.
With regard to the acceptance of bills. In England and Ireland, before the passing of the Statute 1 & 2 Geo. 4, c. 78, an acceptance by word only or by detached writing was held sufficient, at all events in favour of a party to whom such acceptance was communicated, and who took the bill on the faith of it. From time to time eminent Judges expressed their opinion "that it would have been better doctrine if it had been originally determined that nothing else should amount to an acceptance than a written acceptance on the bill itself." At length, in the 1 & 2 Geo. 4, an Act was passed whereby (c. 78, s. 2) it was enacted, for the whole United Kingdom, "that from and after the 1st day of August, 182i, no acceptance of any inland bill of exchange shall be sufficient to charge any person, unless such acceptance be in writing on such bill, or if there be more than one part of such bill on one of the said parts." But in England and Ireland the law still remains the same with regard to foreign bills, the acceptance of which may be verbal or by detached writing. In Scotland proof of a verbal promise to accept is inadmissible as to both foreign and inland bills; but a written promise on separate paper to accept a foreign bill still amounts to an acceptance, so as to ground an ordinary action, and complete the bill as an assignment, but not so as that summary diligence may be used. The extent of the mercantile transactions, which now take place between traders in the different parts of the United Kingdom renders it expedient that the same law should prevail in all parts of it; nor do we find sufficient reasons for adopting a different rule as to the acceptance of inland and foreign bills; and we recommend that the law on this subject shall be assimilated throughout the United Kingdom, and that no accept ance of a bill of exchange, whether inland or foreign, shall be sufficient to charge any person, unless such acceptance be in writing on such bill, and signed by the acceptor or some person duly authorised by him.
We also recommend that all bills drawn in one part of the United Kingdom (in which we would include the Isle of Man and the Channel Islands) upon a party in any other part shall be deemed inland bills.
In Scotland a bill of exchange operates from the time of presentment for acceptance as an assignment of debt owing by the drawee to the drawer; but in England and Ireland, although bills of exchange and promissory notes are excepted out of the general rule that choses in action cannot be assigned, yet a bill has not the effect of assigning a debt, or money of the drawer in the hands of the drawee. We believe that the Scotch Law on this subject is productive of benefit; and as debts may be assigned in equity, we see no sufficient reason for refusing to give the same operation to bills of exchange in England and Ireland in this respect that they have in Scotland, and recommend that the laws of the several countries shall on this point be assimilated.
When bills of exchange, whether inland or foreign, are presented for acceptance or payment, and dishonoured, it is necessary, in Scotland, that there should be a notarial protest, not only to found summary diligence, but to preserve recourse against drawer and indorsers, and no other evidence of dishonour is sufficient. In England and Ireland a notarial protest is required in the case of foreign bills only, and presentment and dishonour of an inland bill or note may be proved by any competent evidence in the same manner as any other disputed fact. With regard to foreign bills, the law is the same throughout the United Kingdom, and we see no reason for altering it; but as regards inland bills a notarial protest for the mere purpose of preserving recourse seems to occasion an unnecessary expense; and as in England and Ireland the fact of presentment is constantly proved by other evidence, we recommend that for this purpose the Scotch Law shall be assimilated to the English and Irish; but we must not be understood to recommend that any alteration shall be made in the proceeding by way of summary diligence in Scotland.
Notice of Dishonour.
In England and Ireland, when a bill, either foreign or inland, or promissory note, has been dishonoured, it is necessary to give notice of dishonour within a reasonable time, which in ordinary cases is held to be the next post after the day of dishonour. In Scotland the rule is the same as to foreign bills; but with regard to inland bills and notes, it suffices if notice is given within 14 days. This time is allowed by the express words of the 12 Geo. 3, c. 72, s. 41. It is by some supposed that this clause was introduced from a misunderstanding as to the effect of the English Statute 3 & 4 Ann., c. 9, s. 5. By that Act, s. 4, it was provided that inland bills might be protested, as in the case of foreign bills; and then s. 5 enacted that if such bills were not accepted in writing no drawer should be liable to pay any costs, damages, or interest thereupon, unless a protest were made for such non-acceptance, and within 14 days after such protest notice there
of given to the party from whom such bill was be put in force; and secondly, that during received; and there was a similar provision for that period, or at any time before the execution protest for nonpayment and notice thereof. It is completed, a Judge (being one of the Lords is supposed that the framers of the 12 Geo. 3. of Session) who officiates in a Court called the c. 72, s. 41, imagined that this Statute of Anne Bill Chamber, and is accessible every lawful had allowed 14 days for giving notice of dis-day throughout the year, may, if he see fit in honour to preserve recourse, and therefore the exercise of a sound discretion, stay the adopted that rule for Scotland. It cannot be execution until the merits of any objection or doubted that assimilation on this point is de-defence which may be stated by the debtor sirable; and we recommend that the English and Irish rule as to inland bills and notes shall be adopted in Scotland, where the same rule already exists with regard to foreign bills.
shall be decided by the Court of Session; and such interim stay of diligence, if it be ordered, may also in the discretion of the Judge be allowed either unconditionally or only on condition of the debtor's finding security for the debt, or consigning the amount in bank. From the several extensions of the proceeding by summary diligence before mentioned we may conclude that during the intervening period it was found to work well; and the information that has been given to us tends to confirm that conclusion. We therefore recommend that in United Kingdom should be assimilated by esthis respect the law of the several parts of the tablishing in England and Ireland some proceeding, similar to the Scotch summary diligence, to enforce payment of bills of exchange holder of a dishonoured bill from the expense and promissory notes, which will protect the and delay of a trial, when the debtor has no
answer whatever to the claim.
A Bill to facilitate the Re
With regard to enforcing payment of bills of exchange and notes, the Law of Scotland affords greater facilities than that of England and Ireland. In the latter portions of the United Kingdom payment can be enforced by action only; a course which has often been considered to impose unnecessary expense and delay on the holder, for needy debtors and their advisers are fertile in expedients to postpone the day of payment. Before the 6 Geo. 4, c. 96 [England], it was very common for defendants to suffer judgment by default, and then sue out a writ of error, which could not be disposed of for a considerable time. To remedy that evil in England the 6 Geo. 4, c. 96, was passed, requiring bail in error in all We have seen two Bills, one entitled "An such cases. Defendants then pleaded to the action, and so compelled the plaintiff to go to Bills of Exchange and Promissory Notes in Act to permit the Registration of dishonoured trial, and after obtaining a verdict, if the trial England, and to allow Execution thereon;" took place in Vacation, he could not thereupon the other entitled have judgment and execution until the follow-medies on Bills of Exchange and Promissory ing Term, which at some periods of the year Notes by the Prevention of frivolous or fictioccasioned a delay of several months. For tious Defences to Actions thereon," which apthis a remedy was given by the 1 & 2 W. 4, c. 7, s. 2, which enabled the Judge before pear to have been introduced for the purpose whom a cause is tried to give the plaintiff, ed out. We understand that both are at preof supplying a remedy for the evil above pointafter obtaining a verdict, immediate execution. Additional facilities for obtaining final judg- and therefore advisedly abstain from offering sent under the consideration of the Legislature, ment, where a defendant does not appear, were given by the 15 & 16 Vict. c. 76, ss. 25 and 27. any opinion as to their comparative merits. Similar enactments have been made for IreConsideration. land. But still a defendant may, on being served with a writ, appear and plead, and compel a plaintiff to go to trial before a jury, although he has no defence whatever to the action. In Scotland the proceeding known by the title of "summary diligence was granted as to foreign bills by Statute 1681, c. 20, and as to inland bills by Statute 1696, c. 36, and was still further extended by 12 Geo. 3, c. 72. This remedy of "summary diligence" is competent only on such bills and notes as are formal in all respects. It proceeds on an extract (or office copy) of the registered protest on the bill or note, which is a warrant for execution. The protest may be registered in the books, either of the Court of Session, or of the Sheriff Court, to whose jurisdiction the debtor is subject. The issuing of the warrant and the execution take place without any previous suit; the means of preventing abuse being first, that a charge or requisition of payment must be given to the debtor six free days before the warrant of execution can
In all parts of the United Kingdom bills and notes import consideration; and in Scotland the presumption that there was consideration cannot be rebutted otherwise than by writing, or the oath of the holder, which the party sued is entitled to call for, provided he consents to be conclusively bound by the answer; a proceeding technically called " oath on reference.” In England and Ireland the absence of consideration may be proved by any legal evidence, in the same manner as other disputed facts; and this rule we think should be adopted in Scotland.
Again, in England and Ireland proof that a bill or note had been lost, stolen, or fraudulently obtained, rebuts the original presumption of consideration, and casts upon the holder the burthen of showing that he gave consideration for it. In Scotland it is otherwise, and the party sought to be charged must show that the holder gave no consideration; but as that is a fact not within his knowledge, but within that of the holder, we think it much more reason
SEPT. 15, 1855.]
Mercantile Law.-Statute Law Commission.
able that the latter should be called upon to prove the affirmative.
Indorsement when overdue.
The holder of a bill or note who has boná fide given value for it has, in general, a good title, although it may have been found, stolen, or obtained from a prior party by fraud. But a party taking a bill or note over due, in England or Ireland, takes it subject to all equities and objections to which it was subject in the hands of the indorser, as far as they are intrinsic to the bill, but not subject to any collateral matter, such as a right of set-off against the former holder. In Scotland, the indorsee of an over due bill is not subject to latent objections attaching to it, if there be no marks of dishonour on the bill, and nothing suspicious in the transaction. But it seems to us that the English and Irish rule is preferable; that the fact of the bill being over due must be noticed by every person exercising reasonable care, and that the nonpayment of the bill at maturity ought to be considered sufficient to put the party on his guard as to taking it.
Evidence of Discharge before payment. The last difference which we propose to notice between the laws of the different parts of the United Kingdom with regard to bills and notes relates to the manner in which it may be established that the holder has discharged a prior party from his liability. In Scotland such discharge can only be proved by writing or oath on reference of the party suing. In England and Ireland such discharge may be proved by any competent evidence. It does not appear that there is any difference in the laws of the two countries as to the power of discharging a party orally, but only as to the medium of proof; and on this, as we have already stated under the head of DEBTOR AND CREDITOR, we have come to the conclusion that the fact of discharge should be deemed capable of being proved by any legitimate evidence.
[To be continued.]
STATUTE LAW COMMISSION.
tion of the Statutes relating to Bills of Exchange and Promissory Notes, by Mr. J. Warrington Rogers.
The Attorney-General brought forward some objections to the mode of proceeding adopted by the Board. He contended that the plan of taking at random isolated groups of Statutes and consolidating them into single Acts was not likely to produce valuable results, or to satisfy the expectations which the public had formed from the appointment of the Commission.
Before the process of consolidation is commenced, the whole body of the law ought to be reviewed and arranged analytically; the parts of it which consist of Statutes should next be placed under their proper heads; and the process of consolidation should then be applied to those parts of the Statute Law which fall together under this arrangement. The whole operation would thus be performed with regularity and system, and should be laid before Parliament, not in detached portions, but as a complete work. He thought that if it was shown that it was a mere consolidation, and that it was carefully executed on fixed principles, the bulk of the work would not be an obstacle to passing the whole through Parliament at once.
The Solicitor-General was also in favour of commencing with an analytical arrangement of the law; but he further contended that the process to be applied to the Statute Law ought not to be a re-writing of the old Statutes in a condensed form, but a digest of the existing statutory provisions, without alteration of language, but with explanatory additions where they have been judicially interpreted. A digest of this kind would admit of the incorporation of the Common Law wherever advisable, which could not be effected by merely producing ag-, gregations of old Statutes in new language. He contended that this was the process directed by the Royal Commission, taken in connexion with the Report of the Commissioners of 1835, whose suggestions were made binding on the present Board by the reference to them contained in the recitals prefixed to the Commission.
Sir W. P. Wood also thought that it would
EXTRACTS FROM THE MINUTES OF PRO- be useful to have a general analytical arrangeCEEDINGS OF THE COMMISSIONERS.
[Concluded from p. 304.] March 14, 1855.
ment of the subject to be dealt with, as otherwise difficulties would arise in deciding the exact parts of the existing Statute Law that ought to be taken into any isolated consolida
The following papers were laid before the tion.
1. The draft of a Bill to consolidate and
3. A preliminary Report on the Consolida
The Lord Chancellor explained that by the mention of the Common Law in the Commission he conceived nothing more was intended than that draftsmen should not be debarred by any rigid rule from introducing such portions of Common Law as should make a consolidated Act a complete and intelligible enactment instead of a collection of fragments; and with regard to the proposal of the Attorney-General, he observed that after the proposed analysis of the Statute Law was made, it would still be necessary to begin the actual work of consoli
dation with some isolated group; and he thought there would be great practical difficulty in passing an entire consolidation of the Statute Law through Parliament at once. He admitted that some imperfections might result from attempting to consolidate in partial groups, which might be avoided by a preliminary classification of the whole subject; but difficulties of detail would occur under any system, and the most scientific arrangement was not always found the most practically convenient. On the whole, his lordship thought it advisable to commence by attempting what we know to be practicable; well-drawn consolidated Acts were admitted to be useful, and were generally regarded with favour;-and if the Board could produce some good Bills of the same nature as "Peel's Acts" and other existing specimens of consolidation, he thought it would gain the confidence of the public, and perhaps be empowered hereafter to attempt something on a larger and more scientific scale.
After considerable discussion, in which Lord Lyndhurst, Lord Brougham and others took part, it was finally arranged that an analytical arrangement of the contents of the Statute Book, as a guide to the Board in the choice of subjects for consolidation, should be prepared; but that meanwhile the consolidation of separate groups of Statutes should be continued according to the plan already adopted by the Board.
The Attorney-General, the Solicitor-General, Mr. Coulson, and Mr. Ker, were named the sub-committee to superintend the preparation of an analysis of the Statute Laws, and it was agreed that Mr. Anstey should be employed in the work under their direction.
The Lord Advocate made some observations on the operation of the Commission with reference to the Statute Law of Scotland. He observed that there was no great necessity for consolidation of the Scotch Statutes; but what was principally required was a revision of the English Statutes from which Scotland was excepted, with a view to the assimilation of the law of the two countries wherever practicable. This was a process which must be performed sooner or later, and the only question therefore was, whether it should precede the consolidation of the English law, so that the new consolidated Acts might be made applicable to all Great Britain, or be postponed till afterwards.
Promissory Notes, as proposed by him in his Preliminary Report.
Mr. Ker reported that Mr. Walpole and himself had considered Mr. Jessel's Preliminary Report on the Consolidation of the Stamp Laws, and had approved thereof, with certain modifications, and that they proposed to authorise Mr. Jessel to prepare a Bill on the subject; also, that he had revised Mr. Cooke's Consolidation of the Copyhold Commissioners' Acts, and had approved thereof, so far as it was a consolidation of the former Acts, but that he did not think it necessary for this Board to give any opinion as to the alterations of the law which were introduced in it, as those were questions for the consideration of the Copyhold Commissioners, and of the Lord Chancellor, who, it was understood, was to bring the Bill into Parliament.
May 23, 1855.
Mr. Wingrove Cooke's scheme for a consolidation of the Statutes relating to Ecclesiastical Leases was referred to the Committee on the Laws of Real Property.
The Attorney-General produced the first part of an Analytical Arrangement of the whole Statute Law, prepared by Mr. Anstey under his direction.
After the Attorney-General had explained the division of the subject proposed by Mr. Anstey, a general discussion arose as to the course of proceeding to be adopted by the Board.
The Attorney-General urged the importance of laying down a complete and logical plan of the whole field to be operated upon before the work of consolidation was commenced. He contended that it was necessary for the satisfactory consolidation of any branch of the Statute Law that it should be executed with immediate reference to a methodical distribution of the whole contents of the Statute Book, and that if any isolated consolidations of particular subjects were commenced without any general plan, they must all be imperfect and unsatisfactory. He therefore proposed that the analytical arrangement of the Statutes should be first completed, and then a large body of draftsmen should be employed to recompose at once the body of law thus distributed into a complete and methodical digest. He thought that Parliament would be more ready to pass a work of this kind in its entirety than to take up Bills which should only profess to consolidate particular subjects.
The Solicitor-General remarked on the importance of making every division of the digest itself, so as to present a statement of the entire proposed by the Attorney-General complete in law on the subject comprised in it.
The Lord Chancellor observed that that would be to codify the whole law, a work which was not within the scope of the present Commission. With respect to the remarks of the Attorney-General, his lordship observed that no arrangement of the contents of the Statute Book, however logical, would present
SEPT. 15, 1855.] Statute Law Commission.-Law of Attorneys and Solicitors.
any complete body of law, as the Statute Law itself was only a collection of alterations of, or additions to, the unwritten law; and he therefore suggested that the Attorney-General's proposal, however just it might be if a codification of the whole law of the land were the object in view, was misapplied with reference to the Statute Law alone. But his lordship agreed that it would be advantageous to have some preliminary arrangement of the whole contents of the Statute Book, in order to settle what groups should be taken together for the purpose of consolidation, according to some uniform principle of classification, so far as any principle could be applied; though, owing to the fragmentary nature of the subject, there must be many cases in which the distribution could be little better than arbitrary.
against the State, by Mr. J. J. Lonsdale, being the first of a series of Bills for consolidating the whole Statute Criminal Law. The Lord Chief Justice of the Common Pleas and Mr. Baron Parke, to whom these Bills stand referred, directed the Secretary to request Mr. Lonsdale to proceed with the work, but to incorporate the whole subject in a single Bill.
3. A Bill for consolidating the Law of Prisons, by Mr. T. C. Anstey.
Mr. Anstey's Bill to be laid before Mr. J. F. Archbold, with a request that he would examine and test it, and point out any defects that he might detect, and any amendments that he could suggest, either in the way of condensation, improved arrangement, or otherwise.
The Lord Chancellor, after stating that he With regard to the disposition of Parliament, considered it desirable that a General Report, his lordship thought that it would be easier to setting forth what has been done by the Board, begin by passing a few consolidated Acts on and the course which it proposes to adopt in subjects which are generally admitted to re-future, should be made to the Crown as soon quire consolidation, and on which there are no as possible, proceeded to read the draft of a differences of opinion which would raise dis- Report, which, with a few amendments, was cussion, than to attempt to pass an entire agreed to. digest at once, as proposed by the AttorneyGeneral; the confidence of Parliament would thus be obtained, and measures of a more extensive character, if hereafter determined on, would be better received and more easily
[Several of the Minutes relate to the Fees claimed or paid to the Barristers employed to prepare the several Bills, but which we have not deemed it seemly to extract. We have
passed. Mr. Coulson pointed out a further advantage also omitted the Memoranda of applications of which would arise from having an exhaustive several Gentlemen of the Bar to be employed examination of the whole Statute Book in the by the Commissioners; and various sugfirst instance, namely, that it would ensure the detection of many scattered enactments which gestions postponed or negatived have also been omitted.-Ed. L. O.]
would otherwise be overlooked.
At the conclusion of the discussion, it was agreed that Mr. Anstey's Analysis should be printed for the use of the Board, and the Attorney-General was requested to empower Mr. Anstey to complete the work.
LAW OF ATTORNEYS AND
CHARGE ONLY COSTS OUT OF POCKET. -LIEN.-DELIVERY OF PAPERS.
Sir W. P. Wood reported that the Com- AGREEMENT mittee on Real Property, consisting of himself, Mr. Walpole, and Mr. Ker, had met and de. liberated on the best arrangement of the sub
ject for the purposes of consolidation, and the Mr. G., to act as his solicitor in a cause, THE plaintiff retained, on Jan. 10, 1854, best mode of conducting the process; that he
had drawn up and submitted to his colleagues and authorised him to obtain the usual a sketch of the heads into which the subject order to change solicitors, which was acshould be divided; and that he had received cordingly done on Jan. 13. At the time from Mr. Ker a paper of observations by him- of the retainer the plaintiff stated he conself and Mr. Brickdale on that sketch, sug-sidered the ordinary mode of remunerating gesting some difficulties and pointing out some solicitors objectionable in principle, but no preliminary questions which would require to other arrangement was made or even sugbe settled before the commencement of the work, and that he had prepared some notes in gested. answer to those observations, which were now in the hands of Mr. Walpole, and which he believed would meet the points referred to by
June 27, 1855.
The Secretary laid before the Board :-
Mr. G., however, on Jan. 20, wrote to the plaintiff, stating that he was not quite sure he understood the plaintiff's system of remuneration, and adding, "but until I have the pleasure of seeing you and of finally making some general and well-underof costs, it shall be understood on my part, stood arrangement with you on the subject that beyond costs out of pocket I have no claim upon you personally." Mr. G. con