inferences of fact, that it is very difficult, or altogether impossible, to trace out precisely their operation, and to determine what degree of weight-whether too much or too little-they may in any given case have had with a jury. And this remark would seem to apply, à fortiori, where conflicting presumptions of law are presented to notice, conjointly with direct and with circumstantial evidence. Nevertheless, upon the whole, we may concede that the disputable presumptions recognised in our law are supportable on solid grounds, and practically tend to produce correct results.

ART. VIII.-THE SUMMARY PROCEDURE ON BILLS OF EXCHANGE ACT, 1855.

TH

HIS measure having now become law, it is desirable that we should lay before those of our readers on whom the practical working of the new process must principally devolve, an explanatory account of its character and provisions. The Act, as is well known, is the result of the deliberations of the select committee to whom the Bills of Exchange Bill, presented to the House of Lords by Lord Brougham, and the Bills of Exchange and Promissory Notes Bill, prepared and brought in by Mr. Keating and Mr. Mullings, were referred. It purports to be for the prevention of frivolous or fictitious defences to actions on bills and notes; and that, no doubt, was the object its framers had in view; but the Act does more,-it takes away from the defendants in such actions, when commenced within a specified period, and under the Act, the ordinary right which defendants in other actions have of entering an appearance as of course, and putting the plaintiff to proof of his case, and thus gives a preference and advantage to creditors holding such securities over other creditors, and in this respect runs counter to the tendency of modern legislation, which has laboured for the fair and equal distribution of the assets of the insolvent or embarrassed debtor, and which, in many instances,

has in the most careful manner, as in the case of warrants of attorney and cognovits, guarded against the frauds that are liable to be perpetrated, and the oppression and injustice that may ensue, where any one peculiar description of instrument or security gives the creditor who holds it an advantage over others. Moreover, it cannot be considered sound and statesmanlike legislation, suddenly, and without some great and urgent necessity for the change, to attach new and grave incidents to instruments of such common and general use as bills of exchange and promissory notes. But, while we make these observations, we must not withhold from Mr. Keating and his coadjutors the award of merit due to them for having succeeded in substituting the comparatively moderate and reasonable provisions of this statute for the startling measure proposed by Lord Brougham; of which the principal feature was,--that a new functionary, to be called "the Registrar of Protested Bills of Exchange and Promissory Notes," should be appointed by her Majesty; and that on the mere registry of a protested bill or note, the holder was, without more, immediately to be entitled to an order of the Court of Common Pleas against the parties to the bill or note whose names were signed or endorsed thereon, for payment thereof; that such order was to have the effect of a judgment against the parties; and that after the brief period of six days from the service of the order, execution might issue against all or any one of them. But while the registration of the protested bill or note, and the rapid process of execution following upon it, was thus made the conspicuous and leading feature of Lord Brougham's Bill, it was, on the other hand, in a subsequent part of it provided, that the defendant might make a special application to the Court, or a judge, before execution levied, to stay execution, and power was proposed to be given to the Court or judge to direct an issue in fact to be tried, or a special case to be stated for the opinion of the Court; which issue or case would, the parties being hostile, have always to be settled by the judge at chambers, a task involving a nice and careful consideration by the judge of all the circumstances brought before him by the affidavits on both sides, and very probably also in most cases the necessity of one

or more adjournments of the summons. In addition to this, provision was made for the case of the verdict being set aside, and a new trial granted, or error brought. So that when it is considered that where the defendant was let in to defend, there must be, first, the investigation to settle the issue or case gone into, a proceeding both tedious, difficult, and expensive, when compared with the simple process of allowing the defendant to put issuable pleas on the record (and pleas at the present day must be issuable or they will not be allowed), and that all this was preliminary merely to the launching of the case for trial, this latter part of the scheme presents a singular contrast to the summary and precipitate character of the registration, order to pay, and execution thereon, with which it commences; the effect of the whole contrivance being, that if the defendant should survive the unparalleled celerity of the first attack, and be let in to defend, there should be a kind of compensating slowness in the subsequent proceedings, and more expense than in an ordinary action. This novelty was recommended to the English commercial world-we speak from the preamble of the Bill itself as the mode of recovering on dishonoured bills of exchange and notes which prevails in the law of Scotland, and as being found of beneficial operation, and expedient to be introduced into the law of England. The select committee to whom, as before mentioned, both Bills were referred, appear to have been impressed with a feeling, that a change having been proposed and energetically pressed forward, a change of some kind must be conceded; and, after some inquiry, directed principally to the forms and the costs of the proceedings involved in both measures, they very briefly reported, that they had proceeded to consider the two Bills committed to them, and that, as it appeared to them, that each Bill was founded on the principle of preventing fictitious defences on bills and notes, and of giving greater facilities to parties seeking the assistance of a Court of Justice, that they had determined to hear evidence as to the cost of proceedings under the Scotch system, as proposed in the Bills of Exchange Bill, and under the English system adopted in the Bills of Exchange and Promissory Notes Bill; and that they were of opinion that it was unadvisable to intro

duce a new system of procedure, if the forms of the English law could be made available for the object in view; and that on hearing the evidence it had appeared to them that the summary procedure might be easily introduced into the English law; and that the costs under the Scotch system would not on the whole be less than those which would be incurred under English practice; and that they, therefore, had determined to proceed with the Bills of Exchange and Promissory Notes Bill, and had carefully considered its provisions. And in this way the select committee happily disposed of the Scotch process of summary diligence, and the new registrar to be appointed by her Majesty.

The new Act came into operation from and after the 24th day of October, A.D. 1855, vide section 1, and consists of eleven sections, and the Schedules A and B annexed to the Act; the former schedule containing the form of the new writ and indorsements, the latter the form of final judgment on default of appearance to the writ. By section 11, "The Summary Procedure on Bills of Exchange Act, 1855," is made the short title of the Act; and by section 10 it is expressly enacted, that nothing in that Act shall extend to Ireland or Scotland.

1 We must here give a place to the observations made by Lord Brougham on this decision of the Select Committee. It is reported that Lord Brougham, in moving that the House should go into committee on the Bills of Exchange and Promissory Notes Bill, said, "it was part of a Bill for giving summary process to creditors upon biHs of exchange and promissory notes. At present a creditor could only enforce payment after the delay and expense of an action, before the termination of which the debtor might become insolvent, in which case the creditor would only come in with the rest of the creditors; and the object of the measure was to assimilate the law of England in this respect to what he believed was the law of every other country in Europe. A Bill on this subject had been sent down to the other House last session, but was not passed. He thought that Bill was more complete than the present one, but at that late period of the_session he would not expose the Bill to the risk of being rejected by those who were adverse to all measures of this kind, when it went back to the other House, by proposing any addition to it in committee. He would, however, at a future stage move some amendments, without any expectation that they would be adopted." And, in answer to an observation of the Lord Chancellor, as to the risk of losing the bill if amendments were proposed, he added that he (Lord Brougham) "had carefully abstained from suggesting that an 'i' should be dotted or a 't' ticked, for he knew that if he had done so, the adversaries of the measure would have seized upon the opportunity of objecting to the Lords' amendments."-Vide Rep. Times Newspaper.

VOL. LIV. NO. CIX.

3 E

The Act leaves untouched all other remedies on bills and notes, and at the same time it applies exclusively to bills and notes. If, therefore, in suing on a bill or note, it is desired not to rest the action on the bill or note alone, but to join other causes of action, either founded on the consideration for which the bill or note was given, or being distinct and separate claims, whether for liquidated demands or unliquidated damages; the proper course in such case will be, not to adopt the proceeding given by this Act, but to issue the writ under the Common Law Procedure Act, 1852: i. e., either the writ under section 25 of that Act, with a special indorsement of the particulars of the debt or liquidated demand, or the ordinary writ of summons applicable to any cause of action, whether for a liquidated demand or unliquidated damages.

By the first section it is enacted, that all actions upon bills of exchange or promissory notes, commenced within six months after the same shall have become due and payable, may be by writ of summons in the special form contained in Schedule A to that Act annexed and indorsed as therein mentioned; and that it shall be lawful for the plaintiff, on filing an affidavit of personal service of such writ within the jurisdiction of the Court, or an order for leave to proceed as provided by the Common Law Procedure Act, 1852, and a copy of the writ of summons and the indorsements thereon, in case the defendant shall not have obtained leave to appear, and have appeared to such writ according to the exigency thereof, at once to sign final judgment in the form contained in Schedule B to that Act annexed (on which judgment no proceeding in error is to lie), for any sum not exceeding the sum indorsed on the writ, together with interest at the rate specified (if any) to the date of the judgment; and a sum for costs to be fixed by the masters of the superior Courts, or any three of them, subject to the approval of the judges thereof, or any eight of them (of whom the Lord Chief Justices and the Lord Chief Baron shall be three), unless the plaintiff claim more than such fixed sum, in which case the costs shall be taxed in the ordinary way; and that the plaintiff may upon such judgment issue execution forthwith.

The new writ thus given is, it will be observed, for service