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The Legal Observer,
SATURDAY, SEPTEMBER 27, 1856.
NOTES ON THE MERCANTILE LAW AMENDMENT ACT, 1856.
THIS Act, which received the royal assent on the 29th July last, and came into immediate operation, is intended to remove the inconvenience occasioned by the difference, in some particulars, between the laws of England and Ireland and those of Scotland, in matters of trade.* It relates, 1st, to the title to goods and their delivery; 2nd, to guarantees and sureties; 3rd, to bills of exchange and promissory notes; 4th, to the repairs of ships; 5th, to the limitation of actions on merchants' accounts and the disabilities occasioned by the absence of creditors and debtors beyond the seas; 6th, the authority of agents in binding their principals; 7th, the liability of co-con
I. OF THE TITLE TO GOODS AND THEIR
No writ of execution or attachment against the goods of a debtor will prejudice the title to such goods by a bonâ fide purchaser for a valuable consideration before an actual seizure or attachment, provided such purchaser had no notion of the writ (s. 1).
Very special provisions are made relating to the specific delivery of goods sold. In actions for breach of contract to deliver goods, the jury are to find (1) what are the goods remaining undelivered; (2) what sum the plaintiff would be liable to pay on the delivery; (3) what damages the plaintiff would sustain if the goods should be delivered under execution; (4) what damages if not so delivered.
Then, if judgment be given for the plaintiff, the court or judge may order execution to issue for delivery on payment of the sum found payable, without giving the defendant the option of retaining the same on payment of the damages. And if such goods cannot be found, then to distrain the lands and chattels of the defendant, until such delivery, or, at the plaintiff's option, the payment of the damages (s. 2).
II. OF GUARANTEES AND SURETIES. The promise of any person to answer for the debt, default, or miscarriage of another
The Act is given in extenso, p. 332 ante.
person, being in writing and signed by him or his authority, shall not be invalid by reason that the consideration for such promise does not appear in writing, or by necessary inference, from a written document (s. 3).
But no promise to answer for the debt, default, or miscarriage of another made to a firm, consisting of two or more persons, or a single person trading under the name of a firm, and no promise to answer for the debt, &c., of a firm, shall be binding after a change in any one or more of the persons constituting the firm, unless expressly stipulated (s. 4).
Every person who, being surety or liable for another, shall pay the debt or perform the duty, shall be entitled to have assigned the judgment, specialty, or other security held by the creditor, and such person shall stand in the place of the creditor; provided that no co-surety shall recover from another co-surety more than a just proportion (s. 5).
III. BILLS OF EXCHANGE AND PROMISSORY
The acceptance of a bill of exchange, whether inland or foreign, made after 31st December, 1856, shall not be binding unless in writing on the bill; or, if more than one part, on one of such parts, and signed by the acceptor or by his authority (s. 6).
Bills of exchange and promissory notes drawn in any part of the United Kingdom, the islands of Man, Guernsey, Jersey, Alderney, aud Sark, and islands adjacent, and payable in the United Kingdom or those islands, are to be deemed inland bills; but this enactment is not to affect the stamp duty, if any, now payable (s. 7).
IV. REPAIRS OF SHIPS IN HOME PORTS.
In relation to the rights and remedies of claimants for repairs to, or supplies for, ships, the ports within the United Kingdom, the islands of Man, Guernsey, Jersey, Alderney, and Sark, and adjacent islands, being her Majesty's dominions, shall be deemed home ports (s. 8).
V. ACTIONS ON MERCHANTS' ACCOUNTS.
Actions of account concerning the trade of merchandise between merchant and mer
chant, their factors or servants, must be commenced within six years after the cause of action, or if such cause has already arisen,
Notes on the Mercantile Law Amendment Act, 1856.-Recent Statutes.
then within six years after the passing of this | act. And no claim which arose more than six years before the action, can be enforced by reason only of some other claim comprised in the same account within six years (s. 9).
It will be observed that this provision applies expressly to "the trade of merchandise between merchant and merchant;" but we presume will be construed to extend to bankers, manufacturers, and traders generally.*
The limitation of actions by the 21 Jas. 1, c. 16, s. 3; the 4 Anne, c. 16, s. 17; the 53 Geo. 3, c. 127, s. 5; the 3 & 4 W. 4, c. 27, ss. 40, 41, 42; the 3 & 4 W. 4, c. 42, s. 3; the 16 & 17 Vic. c. 113, s. 20, shall not be extended beyond the period therein enacted, by reason only of the creditor, or one of the creditors, being, when the cause of action accrued, beyond the seas, or being imprisoned (s. 10).
Where the cause of action, with respect to which the period of limitation is fixed by the enactments above-mentioned, lies against two or more joint debtors, the time within which the action is to be commenced shall not be extended against the debtor who shall not be beyond the seas, by reason that one or more of the joint debtors is or are beyond the seas. And the creditor shall not be barred from suing the joint debtor after his return, by reason only of the judgment recovered against the other (s. 11).
No part of the United Kingdom, nor the islands of Man, Guernsey, Jersey, Alderney, and Sark, nor adjacent islands of her Majesty, shall be deemed beyond the seas (s. 12).
VI. AUTHORITY OF AGENTS.
In reference to the provisions of the 9 Geo. 4, c. 14, ss. 1 & 8, and the 16 & 17 Vic. c. 113, ss. 24 and 27, an acknowledgment or promise made in writing, signed by an agent of the party chargeable thereby, duly authorised, shall have the same effect as if signed by the party himself (s. 13).
VII. LIABILITY OF CO-CONTRACTORS.
In reference to the provisions of the 21 Jas. 1, c. 16, s. 3; 3 & 4 W. 4, c. 42, s. 3; 16 & 17 Vict. c. 113, s. 20. where there are two or more co-contractors or co-debtors, whether liable jointly or severally, no such co-contractor or co-debtor shall lose the benefit of the enactments, so as to be chargeable by reason only of payment of principal or interest by any other co-contractor or debtor (s. 14).
Rules and regulations are authorised to be made by the superior courts for giving effect to the act, and for framing forms of writs and proceedings; and the Common Law Procedure Act, 1852, ss. 223, 224, and the Common
* An attorney's bill of costs would not come within the meaning of the act. Unfortunately, some suits last more than six years; and the whole bill would be recoverable; yet it would be well to bar the statute by commencing an action.
Law Procedure Act (Ireland), 1853, ss. 233, 240, are incorporated in this act (s. 15). The act does not extend to Scotland (s. 17).
NEW STATUTES EFFECTING ALTERATIONS IN THE LAW.
POLICE (COUNTIES AND BOROUGHS) ACT.
1. Where a constabulary is not already established for the whole of a county, the justices in general or quarter sessions to cause the same to be established; if already established in part of a county, then for the residue of such county.
2. Not to apply to counties where parties have sent to Secretary of State a report as required by 2 & 3 Vict. c. 93, for the establishment of a police force.
3. Where constabularies have been established in divisions of a county, such establishments to be consolidated into one county police force. 4. Her Majesty may by Order in Council, require separate police districts to be constituted in counties.
5. Her Majesty in Council, on representations from Boroughs, may arrange terms of consolidation with counties; power to Her Majesty to vary such terms from time to time.
6. County constables to have the like powers, &c., in boroughs as borough constables have in the county.
7. Constables to perform duties connected with the police as directed by justices or watch committees.
8. Constable not to receive to his own use fees for performance of his duties.
9. Borough constables disqualified from voting at certain elections.
10. Power to grant out of the Superannuation Fund, gratuities to incapacitated constables who have not served fifteen years.
11. Deficiency in Superannuation Fund to be made up out of Police Rate.
12. Gratuities may be granted to officers superseded by the county police.
13. Power to grant superannuations to chief constables, to be paid out of the police rate.
14. Annual statement as to crime in counties and boroughs to be furnished to Secretary of State.
15. Power to her Majesty to appoint inspectors for inquiring into state and efficiency of the police in counties and boroughs, &c. 16. On certificate of Secretary of State that an efficient police has been established in any county or borough, one fourth of the charge for pay and clothing to be paid to the Treasury;
17. But not to any borough where population does
New Statutes effecting Alterations in the Law.
20. No agreement under section 14 of 3 & 4 Vict. c. 88, to be put an end to without the sanction of Secretary of State.
21. Section 24 of 3 & 4 Vict. c. 88, repealed. 22. Power to justices to purchase station houses or strong rooms provided under 3 & 4 Vict. c. 88, and cause the same to be paid for out of the county rates.
23. Provisions of 8 & 9 Vict. c. 18, for purpose of purchases of station houses, &c., by justices, incorporated with this aet.
24. Provisions of 7 G. 4, c. 18, as to disposal of unnecessary station houses, &c., extended to this act.
25. Powers of 15 & 16 Vict. c. 31, to continue in force in the county of Chester until police shall be established under this act.
26. If two chief constables appointed in Cheshire, the preceding section to apply to district of
each chief constable.
27. Provision as to Superannuation Fund under 15 & 16 Vict. c. xxxi.
28. As to superannuations to police offices who have served under 15 & 16 Vict. c. xxxi, and appointed under this act.
29. Police rates in the county of Chester made liable to annuity paid to the widow of an officer who died in the execution of his duty.
30. Interpretation of certain terms.
31. 2 & 3 Vict. c. 93, and 3 & 4 Vict. c. 88, and this act to be as one.
32. Extent of act.
The following are the title, preamble, and sections of the act:
An Act to render more Effectual the Police in Counties and Boroughs in England and Wales.
[21st July, 1856. WHEREAS an act was passed in the session holden in the second and third years of her Majesty (chapter ninety-three), "For the Establishment of County and District Constables by the Authority of Justices of the Peace," which act was amended by an act passed in the session holden in the third and fourth years of her Majesty, chapter eighty-eight and whereas a police force has been established under the authority of the said acts in several counties and parts of counties in England and Wales: and whereas by the act of the session holden in the fifth and sixth years of King William the Fourth (chapter seventysix), "To Provide for the Regulation of Municipal Corporations in England and Wales," provision is made for the appointment of constables in all boroughs in England and Wales which are subject to
that act and whereas, under the said secondlymentioned act, power is given to justices of counties and councils of boroughs to agree for the consolidation of the county and borough police establishments: And whereas, for the more effectual prevention and detection of crime, suppression of vagrancy, and maintenance of good order, it is expedient that further provision should be made for securing an efficient police force throughout England and Wales: be it therefore enacted, by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
1. In every county in which a constabulary has not been already established for the whole of such county under the said acts of the second and third and third and fourth years of her Majesty, or either of them, the justices of such county, at the general or quarter sessions holden next after the first day of December, one thousand eight hundred and fifty-six, shall proceed to establish a sufficient police force for the whole of such county, or where a constabulary is already established in part of such county, then for the residue of such county, and for that purpose shall declare the number of constables they propose should be appointed, and the rates of pay which it would be expedient to pay to the chief and other constables, and shall report such their proceedings to one of her Majesty's principal secretaries of state; and upon the receipt from the Secretary of State of such rules as are mentioned in section three of the said act of the second and third years of her Majesty, all the provisions of the said acts of the second and third and third and fourth years of her Majesty shall take effect and be applicable in relation to such county, in like manner as by the said acts provided, upon the adoption of such acts for any county by the justices thereof, and the receipt of such rules as aforesaid from the Secretary of State, subject, nevertheless, to the amendments contained in this act.
2. Provided always, that the enactment hereinbefore contained shall not apply to any county where, before the said general or quarter sessions holden next after the said first day of December, the justices of the peace of such county have sent to the Secretary of State such report as is required by the said act of the second and third years of her Majesty, in order to establish a police force for the whole of such county, or for such residue thereof as aforesaid (as the case may be), and the proceedings upon and in relation to such report, and consequent thereupon, shall and may be had and continued according to the said acts as amended by the enactments herein contained.
3. In any county where, after the establishment, under the said acts of her Majesty or either of them, of a constabulary for any division or divisions thereof, constables have been or shall be appointed under such acts and this act, or any of them, for the residue of the county, or for divisions constituting together such residue, there shall be one general county police establishment, and any divisional police establishment or establishments which may have been constituted in such county, shall be consolidated with, and form part thereof, and a chief constable shall be appointed for such county, in like manner, and with the like powers, as in any case where a police force is established for the whole county in the first instance.
4. In case it appear to her Majesty in council, upon the petition of persons contributing, or who, on
New Statutes effecting Alterations in the Law.
the establishment of a constabulary under the said acts of the second and third and third and fourth years of her Majesty, or this act, will be liable to contribute to the police rate of any county, that a distinction should be made in the number of constables to be appointed to keep the peace in different parts of such county, it shall be lawful for her Majesty, by the advice of her Privy Council, to order and require the justices of such county to exercise the powers given by the said act of the third and fourth years of her Majesty, for the division of such county into police districts; and the said justices shall thereupon, in manner directed by such act, and subject to such approval as therein mentioned, divide such county into such police districts as shall appear to them most convenient, and declare the number of constables which ought to be appointed for each police district; and the extent of such districts, and the number of constables appointed for each may be altered as in the said act provided: and the expenses to be defrayed by each such police district shall be ascertained in the manner provided by the said last-mentioned act, and the police rates assessed and levied therein accordingly: provided, that notice of every such petition, and of the time when it shall please her Majesty to order that the same be taken into consideration by her Privy Council, shall be published in the London Gazette one month at least before such petition shall be considered.
5. In case it be represented to one of her Majesty's principal Secretaries of State by the council of any borough, that application has been made by such council to the justices of any county in or adjoining to which such borough is situate, to consolidate the police of such county or borough in the manner provided by the fourteenth section of the said act of the third and fourth years of her Majesty, and that such consolidation has not been effected, if shall be lawful for such principal Secretary of State to inquire into the terms of consolidation proposed, and to report thereon to her Majesty in council; and it shall be lawful for her Majesty, with the advice of her Privy Council, to fix the terms and conditions and date upon and from which such consolidation shall take effect, and thereupon the provisions of such lastmentioned act shall become applicable as if such consolidation had been effected by an agreement made under the said section, save so far as such provisions relate to the determination of such agreement; and it shall be lawful for her Majesty, with the advice of her Privy Council, at any time, and from time to time, to vary the terms of any such consolidation or at any time to determine such consolidation upon such terms as to her Majesty in council may seem just.
6. The constables of every county appointed under the said acts of the second and third and third and fourth years of her Majesty or either of them, or this act, shall have, in every borough situate wholly or in part within such county, or within any county or part of a county in which they have authority, all such powers and privileges and be liable to all such duties and responsibilities as the constables appointed for such borough have and are liable to within any such county, and shall obey all such lawful commands as they may from time to time receive from any of the justices of the peace having jurisdiction within any such borough in which they shall be called on to act as constables, for conducting themselves in the execution of their office.
7. The constables acting under the said acts of the second and third and third and fourth years of
her Majesty, the fifth and sixth years of King William the Fourth, and this act, or any of the said acts, shall, in addition to their ordinary duties, perform all such duties connected with the police in their respective counties or boroughs as the justices in General or Quarter Sessions assembled, or the watch committees of such respective counties or boroughs, from time to time direct and require
8. It shall not be lawful for any constable acting under the said acts of the second and third and third and fourth years of her Majesty, and the fifth and sixth years of King William the Fourth, and this act, or any of the said acts (other than a local constable appointed under the said act of the third and fourth years of her Majesty), to receive to his own use any fee for the performance of any act done by him in the execution of his duty as such constable; but this enactment shall not extend to prevent the receipt by any such constable of any fee or other payment legally payable which he may be liable to account for and pay over to the treasurer of the county or borough, or otherwise for the use of the county or borough, or which may be payable to, or applied in aid of, any police superannuation fund established or to be established in any borough, under the provisions of the act of the session holden in the eleventh and twelfth years of her Majesty, chapter fourteen, or of any local or other act of parliament.
9. No head or other constable already appointed or hereafter to be appointed for any borough, under the said act of the fifth and sixth years of King William the Fourth, except special constables, shall, during the time he continues to be such constable, or within six calendar months after he has ceased to be such constable, be capable of giving his vote for the election of any person to any municipal office in such borough, or for the election of a member to serve in Parliament for such borough or any county in or to which such borough is situate, either wholly or in part, or adjoins, or for any borough within any such county, nor shall any such constable, by word, message, writing, or in any other manner, endeavour to persuade any elector to give or dissuade any elector from giving his vote for the choice of any person to hold any municipal office in such borough, or to be a member to serve in Parliament for any such borough or county; and if any such constable shall offend therein he shall forfeit the sum of ten pounds, to be recovered in any court of competent jurisdiction, by any person who shall sue for the same within six months after the commission of the offence, and one half of the sum recovered shall be paid to the person suing for the same, and the other half to the treasurer of the borough: provided always, that nothing herein contained shall subject any constable to any penalty for any act done by him at or concerning any of the said elections in the discharge of his duty.
10. It shall be lawful for the justices of any county in General or Quarter Sessions assembled, if they think fit, upon the recommendation of the chief constable, and upon his certifying that any constable belonging to the police force of the county, who has not served so long as fifteen years, is incapable from infirmity of mind or body to discharge the duties of his office, to order that such constable shall receive out of the Superannuation Fund mentioned in the said act of the third and fourth years of her Majesty such sum in gross as a gratuity upon his retirement as to the said justiees may seem proper.
11. If at any time the superannuation fund mentioned in the said act of the third and fourth years of
New Statutes effecting Alterations in the Law.
her Majesty be insufficient (otherwise than by reason of any default of any treasurer or other person entrusted with the custody or management thereof) to pay the superannuation or retiring allowances and gratuities payable thereout, the amount which such fund shall from time to time be insufficient to pay shall be defrayed by the police rate, and, where the county is divided into police districts, shall be defrayed by the several districts as parts of the local expenditure thereof, rateably in proportion to the number of constables appointed for each such district respectively.
12. It shall be lawful for the magistrates in General or Quarter Sessions assembled, if they so think fit, to grant gratuities to such officers as may be removed from their appointments in consequence of the duties of such officers being transferred to persons belonging to the police establishment.
13. It shall be lawful for the justices of any county in general or quarter sessions assembled, if they see fit, to grant to any chief constable of the county, on his ceasing to be such chief constable, such annual sum by way of superannuation allowance as they think fit; and such superannuation allowance shall be paid out of the police rate of the county, and shall, in the case of a county which is divided into police districts, be deemed part of the general expenditure, and be defrayed acccordingly: provided always, that no such allowance shall be granted to any chief constable under sixty years of age, unless the said justices be satisfied that he is incapable from infirmity of mind or body to discharge the duties of his office; and section eleven of the said secondly recited act, as to the proportionate amount of the superannuation allowance of any petty constable, shall apply to the superannuation allowance to be granted to any chief constable.
14. The justices of every county and the watch committee of every borough shall, in the month of October in every year, transmit to one of her Majesty's principal Secretaries of State a statement in such form as one of the said Secretaries of State may from time to time direct, for the year ending the twenty-ninth day of September then last, of the number of offences reported to the police within such county or borough respectively, the number of persons apprehended by the police, the nature of the charges against them, the result of the proceedings taken thereupon, and any other particulars relating to the state of crime within such county or borough which such justices or watch committee may think it material to furnish, and a classified abstract of all such reports and returns shall be annually prepared and laid before Parliament.
15. It shall be lawful for her Majesty, by warrant under her royal sign manual, to appoint during her Majesty's pleasure three persons as inspectors under this act, to visit and inquire into the state and the efficiency of the police appointed for every county and borough, and whether the provisions of the acts under which such police are appointed are duly observed and carried into effect, and also into the state of the police stations, charge rooms, cells, or lock-ups, or other premises occupied for the use of such police; and each of the inspectors so appointed shall report generally upon such matters to one of her Majesty's principal Secretaries of State, who shall cause such reports to be laid before Parliament; and such inspectors shall be paid out of such money as may be provided by Parliament for the purpose, such salaries and allowances as shall be determined by the Commissioners of her Majesty's Treasury.
16. Upon the certificate of one of her Majesty's
principal Secretaries of State, that the police of any county or borough established under the provisions of the said acts and this act, or any of them, has been maintained in a state of efficiency in point of numbers and discipline for the year ending on the twenty-ninth of September then last past, it shall be lawful for the Commissioners of her Majesty's Treasury to pay from time to time, out of the moneys provided by parliament for the purpose, such sum towards the expenses of such police for the year mentioned in such certificate as shall not exceed one fourth of the charge for their pay and clothing, but such payment shall not extend to any additional constables appointed under the nineteenth section of the said act of the third and fourth years of her Majesty; provided that before any such certificate shall be finally withheld in respect of the police of any county or borough, the report of the inspector relating to the police of such county or borough shall be sent to the justices of such county, or to the watch committee of such borough, who may address any statement relating thereto to the Secretary of State; and in every case in which such certificate is withheld, a statement of the grounds on which the Secretary of State has withheld such certificate, together with any such statement of the justices or watch committee as aforesaid, shall be laid before Parliament.
17. No such sum as aforesaid shall be paid towards the pay and clothing of the police of any borough, not being consolidated with the police of a county under the said act of the third and fourth years of her Majesty, or this act, the population of which borough according to the last Parliamentary enumeration for the time being does not exceed five thousand.
18. Until the constables or watchmen appointed in and for any parish, town, or place under the act passed in the session holden in the third and fourth years of King William the Fourth, chapter ninety, or under any local act authorizing the appointment of constables or watchmen, and authorizing rates to be made and levied for the purpose of defraying the expenses of such constable or watchmen, are discontinued as a separate force in manner provided by section twenty of the said act of the third and fourth years of her Majesty and by this act, all the provisions of this act applicable to the constables of any borough acting under the said act of the fifth and sixth years of King William the Fourth shall be applicable to the constables of any borough acting under the said act of the third and fourth years of King William the Fourth, or under such local act as aforesaid, in and for such parish, town, or place, and until such discontinuance all the provisions of this act applicable to the watch committee of a borough shall be applicable to the inspectors, commissioners, or other persons having the appointment of constables or watchmen in and for such parish, town, or place, and the police of such parish, town, or place shall be visited and inquired into by the inspectors under this act; and the provision in this act enabling the Commissioners of her Majesty's Treasury to make payment towards the expenses of the police of a borough having a population exceeding five thousand, shall, until such discontinuance, extend to the police of such parish, town, or place as aforesaid having the like population.
19. Provided, that where any such parish, town, or place, having such constables or watchmen as aforesaid, contains, according to the last Parliamentary enumeration, a population of fifteen thousand persons or upwards, the chief constable of the county