Abbildungen der Seite
PDF
EPUB

Repeal of Usury Laws' Bill.Court of Chancery, County Palatine of Lancaster Bill. 175 in the Courts of Law and Equity when a On the whole, however, we can discern clerk in Court must be employed as well no necessity for this new law. The recent as an attorney or solicitor ; or, as still pre- alterations in the mode of proceeding, the vails in the Écclesiastical Courts, where a sufficient rapidity of those proceedings, and solicitor prepares the will, but a proctor the moderation of the expense, render any must prove it, and then it comes back to change uncalled for; and we trust that the the solicitor to get it construed by the objections on public grounds will prevail and Judges of Westminster Hall.

that the Bill will be rejected altogether. It is not to be wondered at that the bankers in London, who are in daily com

REPEAL OF USURY LAWS' BILL. munication with their notaries, prefer that their mode of business should not be disturbed; but it must be recollected that we It is proposed by section 1 of this Bill, to are now dealing with unpaid bills on which repeal the whole of the following Acts :—37 legal proceedings must be taken ; and which Hen. 8, c. 9; 13 Eliz. c. 8 ; 21 Jac. 1, c. 17; are now intrusted to the attorneys of the 1& 14 Vici. c. 56; 14 Jac. 6, c. 225 (Scotch);

12 Car. 2, c. 13; 12 Anne, Stat. 2, c. 16; 13 holders. It seems reasonable, therefore, 15 Jac. 6, c. 251 (Scotch); 23 Jac. 6, c. 28 that if for the public advantage the mode (Scotch); 10 Car. 1, Sess. 2, c. 22 (Irish); of proceeding should be changed, the duty 2 Anne, c. 16 (Irish); 8 Geo. 1, c. 13 (Irish); should be performed by the attorney and 5 Geo. 2, c. 7 (Irish); together with so much not the notary. At present the mass of of the 3 Car. I, c. 4, s. 5, as makes perpetual inland bills are noted only, not protested, the 21 Jac. 1, c. 17, so much of the 13 Car. 2, and returned by the banker to his customer. and so much of the 5 & 6 Wm. 4, c. 41, as

Stat. 1, c. 14, as confirms the 12 Car. 2, c. 13; The notary will retain all his ordinary busi

relates to securities given for considerations ness, and cannot be entitled to the advan- arising out of usurious transactions. tage of the new course of proceeding which Section 2 provides, that nothing contained is to be substituted for that which is now in the Act shall prejudice or affect the rights performed by the attorney. It clearly or remedies, or diminish or alter the liabilities should be given to the latter in return for of any person in respect of any act done prethat of which he is deprived.

viously to the passing of the Act; and section With the country attorney, however, the 3 proposes to enact, that where interest is now case is different. The notaries in the coun- for payment of the legal or current rate of in

payable upon any contract, express or implied, try are in general attorneys, and if the terest, or where upon any debt or sum of holder of a dishonoured bill is compelled to money interest is now payable by any rule of resort to a notary for the first step towards law, the same rate of interest shall be recoregistration, the holder may leave him to verable as if this Act had not been passed. carry forward the rest of the proceeding, instead of employing his usual attorney, COURT OF CHANCERY, COUNTY and thus the latter may be frequently pre

PALATINE OF LANCASTER BILL. judiced in his practice.

It seems necessary, therefore, that if the Bill is to pass, the proper amendments

The Chancellor of the Duchy and the should be made to remove this objection,

Lords Justices of the Court of Appeal in Chanand that at all events the attorneys and so

cery shall form the Court of Appeal in Chan

cery of the County Palatine; (s. 1). licitors practising beyond 10 miles from After the commencement of Act the jurisdicLondon should be expressly authorised for tion of the Court of Chancery of the County the purposes of the Act, to note and pro- Palatine and in matters of appeal therefrom test bills which are intended to be registered. now exercised by the Chancellor alone or along They of course will not interfere with other with the Judges of assize shall be exercised by notarial business, especially in the sea-ports the Court of Appeal; (s. 2). where notaries are extensively engaged in

The Court of Appeal may direct that any shipping transactions.

cause, interlocutory application, or other matter

shall be heard originally before it, and shall With regard also to bills which have to have as full jurisdiction over all matters in the be given in evidence in foreign Courts, it Court of Chancery of the County Palatine as appears that the protests of the regular nota- it has over matters depending in the Court of ries public are alone receivable, and, conse-Chancery; (s. 3). quently, bills or notes which may probably

The jurisdiction of the Court of Appeal may have to be enforced abroad should be sent Chancellor of the Duchy sitting together or by

be exercised by one Lord Justice and the to a general notary, instead of an attorney both Justices sitting apart from the Chancellor acting under the special provisions of the of the Duchy : provided that the Chancellor Statute.

L 2

176

Court of Chancery, County Palatine of Lancaster Bill. of the Duchy may, while sitting alone, exercise person, make such order for transferring the the like jurisdiction as might have been exer- case to the High Court of Chancery, or othercised by him sitting alone, if this Act had not wise, as shall seem just ; (s. 10). been passed; (s. 4).

In case such suit shall be so transferred, all Decrees, &c., of the Court of Appeal may be proceedings therein shall be transmitted by the appealed from to the House of Lords; (s. 5). Officer of the Palatine Court to the proper officer

The decision of the majority of the Court of of the High Court of Chancery, to be filed, and Appeal shall be the decision of the Court; and the same shall thereafter be proceeded with acif the Judges be equally divided in opinion, the cording to the practice of that Court; and in case decree or order appealed from shall be affirmed; service shall be directed as aforesaid, the same (s. 6).

shall be of the same effect, and the same proThe Court of Appeal shall make regulations ceedings may be had thereupon, as if service for the sittings and business of the Court ; and had been duly effected within the jurisdiction the registrar and other officers now attendant of the Palatine Court; (8. 11). on the Chancellor of the Duchy in matters of The provisions in the 13 & 14 Vict. c. 43, appeal shall be the registrar and officers of and for enforcing decrees and orders of the Palatine attendant on the Court of Appeal : provided Court, by making them decrees or orders of that any order of the Court of Appeal shall be the High Court of Chancery, shall apply to drawn up by any registrar of the High Court decrees or orders of the Court of Appeal; (s. of Chancery, if so directed; (s. 7).

12). The powers given by the 13 & 14 Vict. c. The power of the Vice-Chancellor of the 43, s. 1, to the Chancellor of the Duchy, with County Palatine, when out of the limits of the the advice and consent of the Vice-Chancellor jurisdiction of the said Court to hear and deof the County Palatine, and one of the Vice- termine pleas, demurrers, exceptions, applicaChancellors of the High Court of Chancery tions for injunctions, both upon notice and by any rules or orders to make alterations in exparte, for dissolving injunctions, for the apthe form of writs and commissions, and the pointment of receiver, for the payment of mode of sealing, issuing, executing, and re- money into and out of Court, or for confirming turning the same; and also in the form of and reports, and all motions, petitions and other mode of filing bills, answers, depositions, affi- matters for facilitating the progress of any davits, or other proceedings, and in the form suit pending in the said Court, extended to the or mode of obtaining discovery by answer in final hearing and determination of causes and writing or otherwise; and in the form or mode other matters ; provided, that the Vice-Chanof pleading and of taking evidence, and ge- cellor shall hold in every year at least four nerally of proceeding to obtain relief and in the Courts for the despatch of business within the general practice, and in the form and mode of said county, at such places and intervals of proceeding before the registrar, and of drawing time as the Chancellor of the Duchy shall apup, entering, and enrolling orders and decrees, point; (s, 13). and of making and delivering copies of plead- All the powers and authorities given by the ings and other proceedings, and also to regu- Trustee Act, 1850, and by the 15 & 16 Vict

. c. late the taxation, allowance, and payment of 55, to the Court of Chancery in England may costs, and all other the business of the said be exercised in like manner, and are extended Court, shall be exercised with the advice and to the Palatine Court of Chancery with respect consent of one of the Lords Justices of Appeal to lands and personal estates within the County and the Vice-Chancellor of the County Pala- Palatine ; provided that no person who is any, tine; (s. 8).

where within the limits of the jurisdiction of The Court of Appeal, upon the application the High Court of Chancery, shall be deemed of any person concerned, may make orders for by the Palatine Court to be an absent trustee the protection of any ward, or executor, admi- or mortgagee within the meaning of the said nistrator, officer of the Court, or other person Acts; (s. 14). entitled to the protection of the Court, or for The powers of the High Court of Chancery the punishment of any contempt, as to the to deal with the property of infants or others Court of Appeal shall seem just, and according under disability, and in the administration of to the practice of the High Court of Chancery assets, may be exercised by the Palatine Court in like matters ; (s. 9).

as regards persons and property within its juIn cases in which any necessary party shall risdiction ; (s. 15). not be subject to the jurisdiction of the Court, All moneys payable under the 13 & 14 Vict. the Court of Appeal, on the application of the c. 43, s. 12, into the Bank of England in replaintiff or of the party proceeding, may direct spect of lands within the County Palatine under that the same be transferred to the High Court the Lands Clauses' Consolidation Act, 1845, or of Chancery, or that such service be effected any local or special Act, or under the 10 & 11 upon such person out of the jurisdiction of the Vict. c. 96, may be paid into the branch Bank Palatine Court

, and such application shall be of England within the County Palatine, to the made ex parte or on such notice as the Court of joint account of the Clerk of the Council of the Appeal shall think fit : provided that if such Duchy and the Registrar and Comptroller of order for service shall have been made without the district within which such bank is situate ; notice to any person affected thereby, the

Court provided that no moneys shall be so paid under of Appeal may, upon the application of such the Lands Clauses' Consolidation Act, 1845, or

Letters Patent for Inventions' Bill.Differences in the Mercantile Laws. 177 any local and special Act, in case the party who ther one month or more than one month, after would have been entitled to the rents and the expiration of the term of provisional proprofits of the lands in respect of which such tection (whether such expiration has happened moneys shall be payable, or any guardian or before or shall happen after the passing of this committee in case of infancy or lunacy, shall Act), and may extend the time for filing the serve a notice in writing at the office of the specification whether for one or more than one company taking the lands, requesting them not month, provided the delay in such sealing and to make the payment; (s. 16).

the filing of such specification has not occurred In all proceedings under this Act the Pala- through the neglect or wilful default of the tine Court of Chancery and the Court of Appeal applicant. respectively, shall have full jurisdiction to deal It also provides, that in cases occurring with the costs, and all orders made by the said after the passing of the Act, the applicant or Courts respectively, in pursuance of this Act, bis agent shall give notice to the Commissioners shall be subject to appeal in the same manner of Patents the day after the expiration of the as any other orders of the Palatine Court of term of provisional protection, that he will Chancery ; (s. 17).

apply to be allowed to have his letters patent

sealed and specification filed under the proviLETTERS PATENT FOR INVEN- sions of this Act. TIONS' BILL.

It is further provided, that in such cases oc

curring after the passing of this Act, it shall This Bill (which is to be construed as one not be lawful for the Lord Chancellor to exAct with the Patent Law Amendment Act, tend the time for sealing any letters patent, or 1852) proposes to enact that the Lord Chan-filing the specification, beyond the period of cellor may seal letters patent at any time, whe-six months.

DIFFERENCES IN THE MERCANTILE LAWS OF ENGLAND AND IRELAND

FROM THOSE OF SCOTLAND.

BILLS AND NOTES.

The proposed assimilation of the Law of England, in regard to bills of exchange and promissory notes, with that of Scotland, being now under the consideration of the Legislature, it may be useful to compare the two systems as set forth by the Mercantile Law Commissioners in their paper of questions which has been sent to the several Law Societies :England and Ireland.

Scotland.
BILLS AND NOTES.
Construction of Contract.

Construction of Contract. 1. If blank as to date are deemed to be 1. If blank as to date, summary diligence dated on the day of issue, of which oral evidence cannot be used : and if the sum exceed 1001. may be given.

Scots (81. 68. 8d.) the date, even in an ordinary

action, can be supplied only by written evidence. 2. A bill has no operation to charge specific 2. A bill operates as an assignment of funds funds of the drawer in the bands of the of the drawer in the hands of the drawee. drawee. Laycock v. Johnson, 6 Hare, 199.

3. A bill drawn on a party in Scotland is a 3. A bill drawn on a party in England or foreign bill.

Ireland is a foreign bill. It therefore requires protest, to preserve re

course against the drawer and indorsers,

and the acceptance need not be in writing. 4. Inland bills need not be protested for 4. Inland bills must be protested for nonnon-acceptance or non-payment.

acceptance or non-payment, to preserve recourse against the drawer and indorsers. 12

Geo. 4, c. 72, s. 41. 5. Though bills and notes import consider- 5. The presumption of onerous consideraation, yet the absence of consideration may be tion given cannot be rebutted otherwise than shown by any legal evidence.

by the writing or oath of the holder. 6. Proof that the bill had been lost, stolen, 6. Notwithstanding that the bill is shown or fraudulently obtained, throws upon the to have been lost or stolen, the onus is on the holder the onus of showing that he gave con- party sought to be charged, to show that the sideration for it.

holder gave no consideration. 7. Minors cannot become parties to bills or 7. Minors engaged in trade may become notes, so as to render themselves liable to an parties to bills and notes, in the course of their action during minority, or after minority unless business, so as to render themselves liable they confirm them.

without the concurrence of their curators. 8. In general, married women cannot be 8. A married woman, whose husband has parties to bills or notes, so as to sue, or be left Scotland, carrying on business apart from sued upon them.

him, may become a party to bills or notes in

BILLS AND NOTES.

[ocr errors]

178 Differences in the Mercantile Laws of England and Ireland from Scotland.
England and Ireland.

Scotland.
BILLS AND NOTES.
Construction of Contract.

Construction of Contract.
that business, so as to sue and be sued upon
them, See Churnside v. Currie, 2 Bell's

Comm. 167. 9. In general, corporations can bind them- 9. Corporations may by the signature of selves under seal only, and therefore they can their office-bearers become parties to bills or not be parties to bills or notes.

notes. Thomson on Bills, 216. 10. Proceedings to enforce payment of a bill 10. An action to enforce payment of a bill or note, must be taken within six years after or note must be raised within six years after the time at which it became payable, if not re- the sum has become exigibles ; tot vived by acknowledgment. 21 Jac. I, c. 16, But after the expiration of the six years, it 8. 3 (England); 10 Car. 1, sess. 2, c. 6 (Ire- is competent to raise an action for the land).

debt for which the bill or note was granted, and to prove that the sum is owing by the writing or oath of the

debtor. 11. Notice of dishonour by non-acceptance 11. Notice of dishonour given within 14 days or non-payment must be given within a reason- is sufficient to preserve recourse agaiņst the able time.

drawer and indorsers. Reasonable time is, in the general case, the

next post after the day of dishonour. 12. An inland bill may be protested for non- 12. Protest on the dishonour of an inland acceptance or non-payment -9 & 10 Wm. 3, bill by non-acceptance on non-payment is inc. 17, and 4 Anne, c. 9 (England); 9 Geo. 4, dispensable to preserve recourse against the c. 24, s. 1 (Ireland)—but it is not imperative, drawer and indorsers. and in practice a protest is seldom made.

13. Proof of presentment may be made by 13. Presentation cannot be proved by parole oral evidence.

evidence, but by notarial protest only. 14. A bill is not negotiable if it be not made 14. A bill is negotiable, though not expressed payable “ to order” or “to bearer.”

to be payable " to order” or “to bearer.” 15. Payment can be enforced by an action 15. Summary diligence or execution to enonly.

force payment is competent within six months Upon non-appearance of the defendant with- after registration of the protest. in eight days of the service of a writ of The debtor may obtain suspension of the summons specially indorsed, execution diligence, on cause being shown to the may issue after eight days from the last satisfaction of the Court of Session; but, day for appearance; but if the defendant in the general case, only on the terms of appear, the plaintiff can recover only by obtaining a cautioner. proceeding with his action-15 & 16 Vict. c. 76, s. 27 (England); 16 & 17 Vict. c. 113, s. 96 (Ireland)-contains a somewhat

similar provision. 16. Indorsee of a bill overdue takes it sub- 16. The indorsee of a bill overdue is not ject to all the equities and objections to which subject to latent objections attaching to the bill

, it was subject in the hands of the indorser, as if there be no marks of dishonour on the bill far as they are intrinsic to the bill, but not sub- and nothing suspicious in the transaction. ject to collateral matter, such as a right of set

11 T', , off against the former holder.

17. Acceptance of an inland bill must be in 17. A written promise on a separate paper to writing on the bill.

accept a bill amounts to acceptance so as to But the name of the acceptor need not be ground an ordinary action, and complete the signed.

bill as an assignment, though not so as that

summary diligence may be used. 11 18. Acceptance of a foreign bill may be 18. Proof of a verbal promise to accept a bill verbal or detached.

is incompetent as to foreign as well as inland

bills. 19. The liability of any party to a bill or 19. Express discharge of any party to a bill note may discharged orally before it becomes or note from liability upon it can only be payable. Foster v. Dawber, 6 Exch. 839. proved by writing, or oath on reference. And perhaps after it has become payable.

.

[ocr errors]

jii. Ibid. p, 851.

[ocr errors][ocr errors]

IN

IMPROVEMENT

ACT.

DEATH OF

[ocr errors]
[ocr errors]
[ocr errors]

.

8 4 8

.

ACTION AT LAW.

[ocr errors]
[ocr errors]

Construction of Statutes:-Judges' Salaries.--Taxes on Administration of Justice. 179 CONSTRUCTION OF STATUTES. the following Courts, payable out of the ConJURISDICTION EQUITY

solidated Fund, or a grant of Parliament, are as follow:

Court of Chancery (England) - £39,000 0 ORDER UNDER S. 52 ON

OF- Queen's Bench

28,000 0 FICIAL ASSIGNEE.

Common Pleas

27,000 0 The supplemental order to be obtained on

Exchequer

27,000 0 0

Admiralty motion under the 15 & 16 Vict. c. 86, s. 52, Insolvent Debtors' Court

4,000 0

5,000 0 0 upon the death, pending the suit, of a defendant, the official assignee of a bankrupt, sub

£130,000 0 stitating his successor, is as of course and Court of Chancery (Ireland) £11,969 4 without affidavit in support. Gordon v. Jesson, Common Pleas

Queen's Bench

16,177 13 1o Beay. 440.

15,678 15 Exchequer

15,678 15

Insolvent Debtors' Court 1,846 3 IXJUNCTION UNDER S. 58 TO RESTRAIN Civil Bills' Court

32,516 15 0

Incumbered Estates' Court 5,500 0 0 Ona motion for an injunction to stay further Admiralty Court

500 0 0 proceedings in an action at law, the Master of the Rolls said, “the 58th section of the

£99,867 7 8 Improrement of Jurisdiction Act does not de

Court of Session (Scotland) £42,300 0 0
Sheriffs' Court

53,260 0 stroy the plaintiff's right to the benefit of a discovery, in aid of his defence to an action at

£95,560 0 0 law, and it does not assimilate the practice, completely and entirely, to that in special in- TAXES ON THE ADMINISTRATION junctions, but so far only as the nature of the

OF JUSTICE. case will admit,”—that is, the common injunc. tion is not now to be obtained merely on the

THE COUNTY COURTS. defendant's default, as formerly, but a primá We have a hundred times during the facie case must be stated on the bill, and be last twenty years called the attention of the supported by affidavit. Where, therefore, the Profession to the enormous grievance of the defendant has not answered the bill, but has fees paid by the suitors in the first instance filed affidavits, stating facts, which if there advanced by their attorneys and solicitors) were nothing more in the case, would be suffi- at almost every step in an action or suit. cient to displace the plaintiff's equity, yet, as

We are aware that those who think “ litiit is quite possible that additional facts restor- gation is an evil,” maintain that its extent ing that equity may be brought out by the an

should be checked by throwing a large swers to the interrogatories, the Court will it must be recollected that if not only the

part of the expense upon the litigants; but grant'an injunction till answer. The Judges, but all their officers were paid by adoption of any other course would, practically, the state, there would still remain an ample prevent the defendant at law obtaining the be- impediment in the risk, uncertainty, and nefit of a discovery in such cases.

trouble of legal proceedings, and in the "The injunction will stay the trial, and on large and unavoidable outlay for witnesses, the answer being put in, the defendants may

fees of counsel and attorneys. However move in the same way as formerly and have cheap and expeditious may be the course the injunction dissolved, if cause is not shown of proceeding in any Court, the plaintiff

, on the injunction dissolved, if cause-is not shown the one hand, must always incur the danger on the answer. I do not, however, decide of increasing his loss if he is unsuccessful whether an affidavit may or may not be filed or the defendant be unable to pay; and, on on the motion to dissolve." Senior v. Pritch- the other hand, the latter in resisting the ard, 16 Beav. 473. 1. 20:

claim encounters the risk of increasing the

debt by his own and his adversary's costs. 10 JUDGES! SALARIES.

Apart, therefore, from grounds of po.

licy, it seems just and right, and the first PAYABLE OUT OF CONSOLIDATED FUND.

duty of the Government, to provide the It appears from a return to the House of means for determining questions arising Lords, ordered to be printed June 1st, that the either out of the doubtful state of the law, total amounts of the salaries of the Judges of or the uncertainty of the facts upon

which

de hond

« ZurückWeiter »