and other officers of the public revenue authorized to receive the same, if offered to be so paid, where there are no fractional parts, of the sum of twenty shillings (1); and these notes, being commonly treated as money, are held to be included in that term within the meaning of the annuity act (2). A tender of a bank note for a large sum, from which the creditor can only pay himself by giving change, is not a good tender of the smaller sum (3). But a tender of a large sum in monies numbered, from which the creditor has only to select a portion, as of twenty guineas in payment of the sum of ten guineas, is valid, if the account on which the tender is made be specified (4). We have already seen that if the king by proclamation decries any coin, it cannot afterwards be tendered as money, but is only bullion (5); and that it seems the established opinion, contrary to that of Sir Edward Coke (6), that the king may make base or mixed money current as sterling (7). Therefore, if an obligation be to pay so much in current money at such a day, and before the day the money be enhanced by proclamation, payment or tender of the sum in the enhanced money is sufficient (8); and the rule applies, though the obligation was made in England, for payment in Ireland, and the money is enhanced there only, for the time and place of payment are principally to be regarded (9). So if the money was tendered after the day of payment, and before the enhancement, for there was a default by not tendering it at the day (10). But if money be tendered at the day in pure coin, and afterwards the money is debased, he shall have the value of the coin current at the time of the tender (11); or if a man be bound to restitution of pure coin received by him, and payable on request (12). So when a bill is drawn here, and payable in a foreign country in foreign coin, the value of which is reduced by the government of that country, it is said that the bill shall be payable according to the value of the money at the time it (1) 56 Geo. 3. c. 68. s. 18. (2) Wright v. Reed, 3 T. R. 554. 17 Geo. 3. c. 26., and see 53 Geo. 3. c. 141. s. 2. (3) Betterbee v. Davis, 3 Campb. 70. Robinson v. Cook, 6 Taunt. 336, 7. (4) Wade's Case, 5 Co. 115 a. Stra. 916. Latch. 70. (5) Davies, 206. (6) 2 Inst. 577, 8. (7) 1 Hale, P.C. 194. Davys, 48. was drawn (1); so a legacy must be paid in the currency of the country in which the testator was resident when he made his will (2); thus, where a party, living in Ireland or the West Indies, gave legacies by his will generally, they are payable according to the currency of those respective countries (3)—a fortiori, therefore, where the legacy was specifically left in sicca rupees, the decision of the court was, that though the legacy were paid by remittance to this country, the payment must be according to the current value of the rupee in India, without regard to the exchange or expence of remittance (4), and with interest from the time when the legatee's right accrued. (5) It is not within the scope of the present discussion to enter into those provisions of our criminal code which relate to forgery and other offences affecting the circulation of bank notes and coin: these considerations belong more peculiarly to treatises on the criminal law (6). The forgery of bank notes is a capital offence, and several laws of great severity have been made for their protection. With regard to the liability of a person into whose possession a forged bank note may come, it was decided in a late case, that where A. took a bank note in the course of business, which he paid to B., and the note was afterwards stopped at the bank as forged, and is brought by an inspector to A., who immediately paid to B. the amount of the note, and refused to give it up to the inspector, insisting on his right to retain it, in order to recover the amount from the person from whom he received it; the inspector was not justified, in the absence of all suspicious circumstances, in charging A. before a magistrate with feloniously having the note in his possession knowing it to be forged, for the purpose of compelling him to give up the note; for that the possession of the note by A. was legal (7). By possession, under the stat. 45 G. 3. c. 89. is meant the original possession of a note acquired in an illegal mode, and not a subsequent possession where the acquisition of it was legal. (8) (1) Dacosta v. Cole, Skinn. 272. Chitty on Bills, 367, 5th ed. (2) Toller on Executors, 3d ed. 322. (3) Wallis v. Brightwell, 2 P. Wms. 88, 9. note 1. Saunders v. Drake, 2 Atk. 465. 1 P. Wms. 696. note 2. 2 Bro. Ch. Rep. 38. 3 Id. 50. (4) Cockerell v. Barber, 16 Ves. j. 461. (5) Semb. admitted. Id. 464 and 465. (6) Hawkins, P.C. Hale, P.C. East, P. C. and 2 Chitty, Cr. Law, 103, &c. 1025. of treasons and other offences relating to the coin. (7) Brooks v. Warwick, 2 Stark. 389. (8) Id. ibid. CHAP. XII. Of the Restraint, Encouragement, and Protection of Trade, whether by the King's Charter, by the Common Law, or by Acts of Parliament.-And herein of Monopolies and exclusive Charters.-Of Patents.-Of Corporations and Bye-Laws incident thereto.-Of Contracts in Restraint of Trade.-Of Statutes of Apprenticeship.-Of Literary Property.-Of Bubbles, Forestalling, Regrating, and Engrossing, Conspiracies, Cheats, and False Pretences, Nuisances.-Other Encouragements, &c. by Exemption of Goods from Distresses, &c. THE domestic trade of this country is also subject to numerous laws which, with a view to its ultimate advancement, either impose RESTRICTIONS upon rights which would be otherwise unlimited and unqualified, or PROTECT the interests of persons engaged in it from injuries by which they are peculiarly liable to be assailed, or afford them some direct ENCOURAGEMENT. The RESTRAINTS imposed on trade depend either, first, upon the king's charter, in considering which we shall have occasion to inquire, 1. into the general power of the king to prohibit or restrain trade, 2. the law of patents; and 3. the establishment of corporations; secondly, the restraints by bye-law or custom; thirdly, the restraints imposed by contract; fourthly, those introduced by act of parliament, and herein of literary property. The PROTECTION of trade from injuries has been chiefly attended to in the laws against bubbles, forestalling, regrating, and engrossing; conspiracies to raise the prices of provisions, or the rates of wages; cheats and false pretences; nuisances by setting up offensive trades. The ENCOURAGEMENT held out to trade is further observable in the privilege which tenants have of removing articles annexed to the freehold for purposes of trade, in the protection of implements of trade from distresses, &c. I. Of the Restraints on trade. First, By the king's prerogative. The extent of the KING'S POWER over trade, although it has in former times occasioned much controversy, is now established. At common law, his majesty cannot grant a charter which operates as a total restraint of trade (1), nor an allowance to any particular person or persons, whether by grant, commission, or otherwise, for the sole buying or selling, making, working, or using of any thing which would operate as a restraint upon the freedom of trade, and a derogation from the rights of the public (2). Thus a grant from the crown in the reign of Queen Elizabeth, reciting the inconveniences which arose from the frequent making and use of playing cards, and confining the manufacture, importation, and sale thereof to a particular person, and his deputies and assigns, was holden void, as being an unlawful restraint of a mechanical trade, and in effect amounting to a monopoly (3). So a grant for suppressing the making of such articles, though they serve only for pleasure, and are productive of public inconvenience, is bad, for the making of them is a lawful occupation (4). So the king cannot grant that a corporation shall use a trade at a particular place exclusively of all others not free of the same corporation, although a custom to that effect would be good (5); or that only one hundred persons shall trade to a certain place (6); or that the master, wardens, and fraternity of Trinity Isle in Ireland, shall have the sole buying and selling of merchandize imported into Dublin (7); or that none shall practise physic without a licence from the college of physicians (8); or that the grantee alone shall have the making of ordnance for battery in time of war (9), or the exportation of kerseys out of the country (10). Nor can the king grant that goods shall be landed at a particular port; as for instance, all sweet wines at Southampton, and not else (1) Com. Dig. Trade, D. 1. D. 4. and title Prerogative, D. 36. 3 Mod. Rep. 126–131. (2) 3 Inst. 181. and see Com. Dig. tit. Trade, D. 1. and D. 4. and instances there cited. 2 Rol. Abr. 174. 1. 45. & 50. Stat. 38 Edw. 3. See as to patents for new inventions, 21 Jac. 1. c. 16. and infra. (3) The case of monopolies, 11 Coke, 84.; and see Blanchard v. Hill, 2 Atk. Rep. 484. where (1); nor to an abbot, that he alone shall have such a port (2); nor that all merchandize imported into a city shall be left at the guildhall there for forty days (3). So for other and constitutional reasons, the king cannot grant a new office with fees annexed to it,-as an office for measuring cloths and canvass, or worsteds (4). Nor can he grant a charter by which a forfeiture of goods would be incurred,—as for instance, a power to the dyers to search cloths, and to seize such as are not dyed with logwood (5). So with regard to the trade of the subjects of this country to foreign parts, although it has been laid down that where a place for trade is discovered at the great peril and expence of certain persons, the king may grant them the sole trade to that place, especially, as the books say, if the country was inhabited by infidels,-as the trade to the East Indies to the East India Company (6); yet the better opinion seems to be, that such an exclusive privilege can only be conferred by the authority of parliament (7), and that the only power which the king possesses over a subject in this respect, is to prohibit him from leaving the country by proclamation, or writ of ne exeat regno, or to com (1) 2 Rol. Rep. 114. Dig. Trade, D. 1. Com. Barbary trade; whereas there is a Com. (4) 2 Inst. 533, 534; and see Com. Dig. tit. Officer. (5) 8 Coke, 125. (6) Com. Dig. tit. Trade, D. 1.; and the numerous authorities on both sides there cited. 3 Mod. 127. (7) Id. ibid. Skinner's and Sands's case, and see' 2 Anders. Hist. Comm. Anu. 1660. 1684, and 1698. 2 Vol. 460. 566-634. See also Hawk. b. 1. c. 79. 3 Mod. 126. Skinner, 165. Vernon, 127. 1 Mod. 18. 1 Ventr. 47. And as to the disadvantages of exclusive corporations, see ante 1 Vol. 632. In Tucker on Trade, p. 28. he says, that in his time the French sustained disadvantage by their monopolies and exclusive charters. "They have an East India Company at Port P'Orient: Marseilles duty of 20 per cent. upon all merchandize of those countries if imported into any other port of France in the Mediterranean. And even at Marseilles there is a particular exclusive company for importing corn and wool from Africa. Lyons is free for all silk entering or going out; whereas there is a heavy duty in the neighbouring towns, by which means Lyons may be said to have an exclusive charter. And there is good reason to conclude there is something of the same nature for the Turkish cloth at Carcassonere, the silk and worsted stockings at Nismes, the clothing for the soldiery at Lodene, the superfine cloth at Abbeville, the stuffs at Amiens, the camblets at Arras, the painted linens and cotton at Rouen, &c." And see an account of the various exclusive charters, with comments thereon. Anderson's History of Commerce, Index, tit. Monopoly. |