CHAP. IX. of such company shall be liable for the whole amount of the issue, in addition to the sum for which they would be liable as members of a limited company." Practically, the amount in circulation is limited by the limits of effective demand and the amount upon which it is profitable to pay a £2 tax to the Crown. Protection of the Currency. The coinage, once established, is protected by the operation of the Crimes Act, part VI. of which deals, in a series of twenty-seven sections with great elaboration, with the various offences of counterfeiting, impairing, or defacing coin; and of possessing or uttering any counterfeit coin, or any coin which has been impaired or defaced; and of gilding coin; and of buying or selling counterfeit coin, or of importing it; and of conveying tools out of the Mint, &c., &c. The punishments which may be awarded those convicted of any of these offences are very heavy, and in the most serious cases penal servitude for fourteen years may be awarded. The sections of the Coinage Act of 1870, already referred to, have some protective effect, especially sections 5 and 7. The Crimes Act also protects the paper currency by the operations of sections 265-270, which impose heavy penalties for forgery of bank notes or unlawfully engraving plates for making bank notes, and kindred offences. Currency of the Commonwealth.-Two sections of the Commonwealth of Australia Constitution Act have an important bearing on the future currency of the country. By section 115 "a State shall not coin money nor make anything but gold and silver coin a legal tender in payment of debts," and by section 51 among the powers conferred upon the Federal Parliament is the right to legislate upon questions of currency, coinage, and legal tender for the whole of Australia. This power, however, CHAP. IX. has not, as yet, been exercised. Case Law I think I have now outlined to you the chief features of the statute law so far as it deals with the currency. Case law on the subject, however, remains to be considered. The leading case is that of Miller v. Race, which has been summarised as follows: One December night, about the middle of the eighteenth century, the mail from London to the west was attacked by highwaymen. Amongst other things taken was a bank note for £21 10s., which a Mr. Finney, of London, was sending down by the general post to a client in Oxfordshire. The next day the news of the disaster reached the ears of Mr. Finney, who rushed off immediately to the bank and stopped payment of the note. A few days afterwards the plaintiff, who had come by the note quite honestly, and had given value for it, presented it at the bank; but Mr. Race, one of the bank clerks, not only refused to cash it, but even to hand it back. Miller therefore sued him, and succeeded in making him cash it. There is another matter that should be made clear before going into details. I have already mentioned it; it is the quality of negotiability which attaches to all bills of exchange. The term "bills of exchange" includes bank notes, cheques, drafts, and promissory notes. All these, and some other documents are, in their nature, negotiable. Being negotiable, they have a quality which nonnegotiable documents and other goods and chattels do not possess that is, that the transferror can give the transferree a better title than he himself possesses. I have said this is not an attribute of other forms of personal property. If a man-a thief, for instance-having no title to a watch, sells it to someone else, that other person, however innocent, can acquire by the purchase no 1 Burr. 452, also Sm. L.C. This CHAP. IX. title to the watch, for the person from whom he got it had no title. It is otherwise in the case of a bill of exchange. If the holder of such a document have obtained it honestly and for value, he can keep it against the true owner, and enforce payment from those liable upon it. Such a holder has now, in fact, become the true owner. doctrine of negotiability is no part of the English common law, but has been imported into it from the law merchant, that is, from mercantile custom, which obtained so widely that it was recognised to be binding and have the full force and effect of law. In the case of bank notes, this doctrine was recognised as embodied in our law in the historical case of Miller v. Race. The Currency of Money.-Now, a negotiable instrument has been defined as "an instrument which, upon delivery, transfers the legal right to the property secured by it to the person to whom it is delivered." Since this quality of negotiability is firmly attached to paper money, and also to paper securities and credits, which are less exchanged than money, one would suppose a fortiori that all money must be negotiable, or have some similar characteristic; and, indeed, that is the law and the ground upon which the leading case was decided; the passage of Lord Mansfield's judgment, which I proceed to quote, for its general importance, has become classic among both lawyers and economists. "Now, they (bank notes) are not goods, not securities, nor documents for debts, nor are so esteemed, but are treated as money, as cash in the ordinary course and transaction of business, by the general consent of mankind, which gives them the credit and currency of money, to all intents and purposes. They are as much money as guineas themselves are, or any other current coin that is used in common payments as money or cash. "They pass by a will which bequeaths all the testator's money or cash, and are never considered as securities for money, but as money itself. Upon Lord Ailesbury's CHAP. IX. will, £900 in bank notes was considered as cash. On payment of them, whenever a receipt is required, the receipts are always given as for money, not as for securities or notes. "So, on bankruptcies, they cannot be followed as identical and distinguishable from money, but are always considered as money or cash. 'Tis pity that reporters sometimes catch at quaint expressions that may happen to be dropped at the bar or bench, and mistake their meaning. It has been quaint- But cf. post, ly said 'that the reason why money cannot be followed p. 120. is because it has no earmark,' but this is not true. The true reason is, upon account of the currency of it, it cannot be recovered after it has passed in currency. So, in case of money stolen, the true owner cannot recover it after it has been paid away fairly and honestly upon a valuable and bona fide consideration; but, before money has passed in currency, an action may be brought for the money itself." A more modern and a very interesting case is that 1899, of Moss v. Hancock, decided in the Queen's Bench Divi- 2 Q.B. 111. sion in 1899. In that case, one Thomas Neale, a servant, had stolen a £5 gold piece, the property of his master, Hancock. He was convicted, and the magistrates made an order that the coin, which was produced in evidence, should be restored to Hancock, the respondent. The £5 gold piece had been presented to respondent by the committee of the Goldsmiths' Company in 1887, and bore the date of that year. It was always kept by respondent in a case in a cabinet in his drawing-room, and had never been in circulation. Together with other property, it was stolen from Hancock's residence on November 20, 1898. Moss, the appellant, was a dealer in new and second-hand clothes and other articles, and Neale changed CHAP. IX. the gold piece at Moss's shop for five sovereigns. Moss objected to the order for restitution of the coin, and appealed. The gold piece had been made current coin of the realm by Royal proclamation issued under the Acts of Parliament dealing with the coinage. It was stated in argument the piece was of somewhat greater value than that of its denomination. From all the facts, which were stated for the Court in a special case by the magistrates, the Judges came to the conclusion that this gold piece never passed in currency, though it was the subject of a sale as a medal or curio might have been. The Judgment of Lord Mansfield in Miller v. Race was cited, and it was concluded that the question upon which the case should turn was, Whether, by the manner of dealing with it which the thief adopted, the gold piece passed in currency. The exchanging of a coin for other coins (it was said) is not conclusive proof that the exchanging is a dealing with current coin on both sides. Many coins which have not yet been formally withdrawn from currency have a price far beyond their denominated value by reason of their antiquity or rarity, or for their beauty of design or execution. It was held the order for restitution had been properly made. No. 40, 1900, s. 438. Restitution of paper money. The two cases quoted, taken together, go to show that bank notes may be currency even though they are not legal tender, and that current coins of the realm are not always currency, though if used as legal tender they could not fail to be so. Also, a consideration of these cases naturally leads to an inquiry as to the law in New South Wales as to orders for restitution of money stolen. Stolen Money in New South Wales.-We have an enactment in force here, as a section of the Crimes Act, which closely resembles the English section under which the order in Moss v. Hancock was made. And in a recent case in Hay, since known as the Hay bank-note case, facts arose which aptly illustrate the law. A stole |