220 Analytical Digest of Cases: Bills of Exchange. may be presumed to be acquainted with the lav) is, or has been, in a position to render it probable that he would make himself acquainted with it. Therefore, an hotel keeper in London, a native of Belgium, who stated that he had formerly carried on the business of a merchant and commissioner of stocks in Brussels, was permitted to prove the law of Belgium on the subject of the presentment of a promissory note made in that country payable at a particular place. Vander Donckt v. Thellusson, 8 C. B. 812. Case cited in the judgment: The Sussex Peerage case, 11 Cl. & Fin, 85, 134. 13. Custom as to remitting foreign bills.The purchaser or remitter in London, of a foreign bill, getting from the drawer, according to the usage in London, credit until the next foreign post day for the amount, and delivering the bill to the payee, who receives it bona fide and for value, the drawer is liable for the amount to the payee, although, in consequence of the purchaser or remitter's failure before the next foreign post day, the drawer never receives value for it. Munroe v. Bordier. 8 C. B. 862. 14. Indorsement by partners, sufficiency of. -A. and B. carried on business in partnership. The firm being indebted to C., A. (who acted as C.'s agent), with the concurrence of B., indorsed a bill of exchange in the name of the firm, and placed it amongst the securities which he held for C., but no communication of the fact was made to C.: Held, a good endorsement by A. and B. to C. Lysaght v. Bryant, 9 C. B. 46. 15. Action by holder against drawer.-Notice of dishonour.-The holder of a bill of exchange may, in an action against the drawer, avail himself of a notice of dishonour given in due time by any party to the bill, who, at the time of giving such notice, was under liability to him. Lysaght v. Bryant, 9 C. B. 46. 16. Satisfaction by drawer or indorser and indorsee, not discharge acceptors' liability to indorsee.-Satisfaction of a bill as between a drawer or indorser and an indorsee, whether before or after the bill became due, does not necessarily enure as a satisfaction on behalf of the acceptor, or operate to discharge him from liability to the indorsee. Jones v. Broadhurst, 9 C. B. 173. Cases cited in the judgment: Bacon v. Searles, 1 Carr. & P. 134; Pierson v. Dunlop, 2 Cowp. N. S. 939; Reid v. Furnival, 1 C. & M. 588; Exparte De Tastet, in re Corson, 1 Rose, 10; Grymes v. Blofield, Cro. Eliz. 541; Hooper's case, 2 Leonard, 110; Edgcombe v. Rodd, 5 East, 294; Thurman v. Wild, 11 A. & E. 453; 3 P. & D. 289. 17. Plea of delivery of goods in discharge by drawer to indorsees. Action by indorsees against acceptor.-To a count on a bill of exchange for 497., by indorsees against acceptor, the latter pleaded, that, after the indorsement, and before the commencement of the action, the drawer delivered to the plaintiffs, and the plaintiffs accepted, goods of the value of 50%, in satisfaction and discharge of the bill, and of all damages and causes of action in respect thereof; and that the plaintiffs, from the time of the said satisfaction of the bill, had always held the same against the will and consent of the drawer, and so still held the same; and that the plaintiffs had commenced the action, and prosecuted the same, against, and in opposition to, the will and consent of the drawer. Held, after verdict for the defendant, that the plea was no bar to the plaintiff's' right to recover against the defendant on the bill. Jones v. Broadhurst, 9 C. B. 173. 18. Bill accepted by manager of mining company without authority of co-partners.-A bill "The Allty Crib Mining Comaddressed to pany," and accepted by the defendant, as follows:-" Per proc. The Allty Crib Mining Company, W. T. Van U., London, Manager." It was proved that four persons, one of whom was the defendant, had agreed to work a mine, under the name of The Allty Crib Mining Company, and had for some time worked it accordingly; and that the bill in question had been accepted by the defendant without the authority of his co-partners: Held, that the defendant was liable upon the bill, as acceptor. Owen v. Van Uster, 10 C. B. 318. 19. Addressed to firm and accepted by one.— Held, that one who individually accepts a bill addressed to a firm of which he is a member, is individually liable thereon. Owen v. Van Uster, 10 C. B. 318. 20. Payment suprà protest for honour of indorser.-Evidence.-Where a foreign bill is paid suprà protest, for the honour of an indorser, the bill must be protested for nonpayment before payment for honour is made; but the formal instrument of protest may be drawn up, or extended, at any time afterwards, even after the commencement of an action by the person so paying, against the indorser for whose honour payment was made. Where, therefore, a bill had been duly paid suprà protest, and a formal protest transmitted abroad to the party for whose honour the payment was made,-quære, whether secondary evidence of the protest was admissible? the notary from his book, after the commenceBut, held, that a formal protest extended by ment of the action, but bearing date the day of actual protest, was primary evidence of the payment suprà protest. Geralopulo v. Wieler, 10 C. B. 690. The Legal Observer, DIGEST, AND JOURNAL OF JURISPRUDENCE. SATURDAY, JANUARY 22, 1853. COMMENTS ON THE NEW COM- in which the practice of one Court differed MON LAW RULES. UPON the earliest opportunity, and by resorting to a double Number, we were enabled last Saturday, to put our readers in possession of the Code of Rules, sanctioned by the Judges, for regulating and assimilating the practice of the Courts of Queen's Bench, Common Pleas, and Exchequer, in civil actions. from the other two; and, in several instances, that which was already established as the practice is now, for the first time, embodied in the authoritative form of a General Rule of all the Courts. The Rules absolutely new, are, for the most part, founded upon the alterations of procedure effected by the operations of the Act 15 & 16 Vict. c. 76, but, in some instances, the framers of the present Rules, acting it may As no interval was allowed to elapse be- be supposed upon the dictates of experitween the promulgation of the Rules and ence, and with a view to the improvement the commencement of their operation, the of the administration of justice, have enimportance of placing them, without delay, joined the observance of fresh or altered in the hands of every Common Law prac- regulations independent of any statutory titioner, was manifest. No attorney who provisions. We select a few of the most had business depending in any of the three striking instances falling under both diCourts, could rest securely until he had visions. ascertained how far his individual duties Amongst the earliest examples of a new and responsibilities were affected by ordi- Rule, wholly founded upon the provisions nances in force at the moment they were of the Common Law Procedure Act, 1852, announced, and the scope and tenour of we may refer to the Rule relating to the which could only be matter of vague con- joinder of parties (R. 6), which directs jecture; and to a practitioner thus circum- thatstanced, no commentary-however precise and elaborate—would have been an ade- after notice by the defendant, or a plea in "Whenever a plaintiff shall amend the writ quate substitute for the Rules themselves. abatement of a nonjoinder by virtue of the To such practitioners, as well as to others Common Law Procedure Act, 1852, sect. 36, who have perused the new Rules without he shall file a consent in writing of the party any reference to their operation in particular cases, some observations upon their general character and tendency may not be deemed unacceptable; whilst to those who have not yet found time for the perusal, a notice of the most striking changes effected in practice can scarcely fail to be satisfactory. or parties whose name or names, are to be added, together with an affidavit of the handwriting, and give notice thereof to the defendants, unless the filing of such consent be dispensed with by order of the Court or a Judge." To understand the applicability and operation of this Rule, we must refer exclusively to the provisions of the Statute upon As already intimated (page 186), only a which it is founded. As our readers will small proportion of the Rules now issued recollect, sect. 34 of the Common Law Procan be said to be altogether new. Many cedure Act provides, that the nonjoinder of of those Rules are simple re-enactments; plaintiffs may be amended before trial, by others are framed with a view of rendering adding the names of those who ought to be the practice uniform in particular instances joined, if no injustice will be done by such VOL. XLV. No. 1,298. N 222 Comments on the New Common Law Rules. on any day in Term after trial, when the trial took place at the Sittings in Term, the successful party was generally entitled at any time, after the fourth day, to sign judgment, tax his costs, and issue execution. The jury process is abolished altogether by the recent Act (s. 104), and sect. 120 provided, "that a plaintiff or defendant having obtained a verdict in a cause tried out of Term, shall be entitled to issue execution in 14 days, unless the Judge who tries the cause, or some other Judge, or the Court, shall order execution to issue at an earlier or later period, with or without terms." amendment, and that the persons to be added consent to be so joined. The next sect. (35) enacts, that the nonjoinder of plaintiffs may be amended at the trial, upon the like consent, if the defendant does not, at or before the time of pleading, give notice that he objects to such nonjoinder, and that it appears to the Judge that the nonjoinder was not for the purpose of obtaining an undue advantage, and that its amendment will not work injustice. Then comes sect. 36, referred to in the Rule, which provides, that "In case such notice be given, or plea in abatement of nonjoinder pleaded by defendant, the plaintiff may, Express provision is thus made for the without any order, amend the writ and time of issuing execution, upon a verdict other proceedings, before plea, by adding obtained in a cause tried out of Term, but the persons named in such notice, or plea, no provision was made in the Act for the and proceed in the action without any issue of execution on a verdict obtained in further appearance on payment of the costs Term, or a nonsuit in or out of term; whilst of amendment only, and in such case de- the foundation upon which the old practice fendant shall be at liberty to plead de rested-the return of the jury process-was novo." Here the Rule carries out the completely demolished. To supply this object of the Act, and supplies what it palpable and very serious defect, the Judges omitted to provide. When the defendant who sat at Nisi Prius during Michaelmas objects by notice or plea, that the proper Term, deemed it expedient to make an parties are not joined as plaintiffs, and the defendant defers to that objection and adds the names of the plaintiffs so omitted, he is required by the Rule to file a consent of the parties to be added, verifying their signatures, and to give notice to the defendant that he has filed such consent. By this proceeding, the defendant, who has a wellfounded objection to the nonjoinder of parties, obtains all that he could effect by a successful plea in abatement, but without the delay and expense such a plea, if maintained, throws upon the plaintiff. TIME FOR ISSUING EXECUTION. A very remarkable omission in the Common Law Procedure Act, which has already occasioned some doubt and inconvenience, is supplied by Rule 57, which declares, that order in every case tried, authorising the successful party to sign judgment and issue execution at the end of a stipulated period. This necessity will in future be prevented by the General Rule above cited, which is intended to govern the practice in ordinary cases. The change effected by the combined operation of the Statute and the new Rule, may be thus stated. Under the old practice, a successful party trying in Term was generally entitled to sign judgment and issue execution on the fifth day after the trial, whereas he is not now entitled to sign judgment until 14 days after the verdict or nonsuit. On the other hand, under the old the Sitting after Term, was not ordinarily practice, the party successful in a trial at entitled to his judgment and execution until the fifth day of the following Term, whereas he will now be entitled to issue his execution in 14 days after trial, unless a Judge or the Court orders it to be issued at a later period. It will be advisable, therefore, to apply for a stay of execution in cases tried out of Term, whenever it is intended to apply for a rule for a new trial. It may be observed, that both the Statute and the new It will be recollected, that, before the Rule refer only to "causes" tried in or out passing of the Common Law Procedure of Term, and not to causes tried upon Act, a party obtaining a verdict or nonsuit Circuit; but it may be presumed that causes was at liberty to sign judgment and issue tried upon Circuit, will be considered to fall execution on the day after the appearance within the category of those tried "out of day of the return of distringas juratores, Term," and will be subject to similar reguor habeas corpora, and as the distringas or lations, as to the time for signing judgment habeas corpora might be made returnable and issuing execution. "When a plaintiff or defendant has obtained a verdict in Term, or in case a plaintiff has been nonsuited in or out of Term, judgment may be signed and execution issued thereon in 14 days, unless the Judge who tries the cause, or some other Judge, or the Court, shall order execution to issue at an earlier or later period, with or without terms." Comments on the New Common Law Rules. PRACTICE BY SUMMONS AND ORDER. 223 We have some reason to believe, that Amongst the changes in practice intro- this alteration will be received with satisfaction by the Profession. The power to deduced by the new Rules, suggested by experience, and which are wholly irrespective liver papers until the advanced hour of 9 of statutory enactments, we may notice the o'clock was sometimes vexatiously used, alteration made in the Chamber practice of and the latter branch of the Rule, which the Judges, dispensing with the service of a provides that service after the prescribed second summons when the party summoned hour shall not be void, but shall be has failed to attend upon the return of the deemed as made on the following day," is a first. Formerly, when the party summoned sensible arrangement which can scarcely fail to obtain general concurrence. neglected to attend, the order must in general be preceded by three summonses and an affidavit of attendance thereon. According The Rules of Hilary Term, 1853, recog to the modern practice, however, when de- nise a principle which, it is submitted, may fault was made, it was only deemed neces- be advantageously extended,—namely, that sary to serve a second summons, but, in the formal authority of the Court may be general, to obtain a Judge's order by de- dispensed with where the attorneys of the fault, it was indispensibly necessary that litigant parties are agreed upon any proceedthere should be an affidavit of the service ing in a cause, and signify their acquiescence of two summonses and of the attendance of by a written consent. For example, it is the party issuing such summonses at the provided by Rule 8 that— appointed time and place. According to "It shall not be necessary to issue more than one summons for attendance before the Judge, upon the same matter, and the party taking out such summons shall be entitled to an order on the return thereof, unless cause is shown to the contrary." By the new practice, the expense of issuing and serving a second summons, as well as the delay occasioned by waiting its return will be spared, whilst, on the other hand, the practitioner is deprived of the option, often exercised with great convenience, of choosing between attending one day or the next. SERVICE OF NOTICES, PLEADINGS, &c. PROCEEDINGS BY CONSENT. "The defendant shall not be at liberty to waive his plea, or enter a relicta verificatione after demurrer, without leave of the Court or a Judge, unless by consent of the plaintiff or his attorney." So we find, in Rules 36 and 37, that "Notice of trial or inquiry may be continued to any sitting in or after Term, on giving a notice of continuance four days before the time mentioned in the notice of trial or inquiry, unless short notice of trial has been given, in which case two days' previous notice shall be sufficient, unless otherwise ordered by the Court, or a Judge, or by consent. "Continuance of notice of inquiry shall be given four days before the day of inquiry mentioned in the notice, unless short notice of inquiry has been given, and then two days before such day, unless otherwise ordered by the Court, or a Judge, or by consent." CHANGE OF VENUE. The most remarkable instance, however, in which the consent of parties is made equivalent to the order of the Court or a Judge, is, in the Rule relating to change of 2 venue. It would appear, from one of the new Rules, that the influence of "the early closing movement" had extended to the Legal Profession. A rule of Michaelmas Term (41 Geo. 3) directed, that no rules, orders, or notices should be served later 10 o'clock at night, and that a service after that hour should be void. By R. Hil., Wm. 4, service of rules, orders, and notices, if made before nine at night, were to be deemed good, but not if made after that hour, and by the Rules now under consideration (R. 164), it is declared that— "Service of pleadings, notices, summonses, orders, rules, and other proceedings shall be made before seven o'clock P. M. If made after that hour, the service shall be deemed as made on the following day." As all our readers are aware, in transitory actions, the venue might be laid, in the first instance, in any county at the option of the plaintiff, subject, however to being changed to the county in which the cause of action really arose upon what was called "the common affidavit ;" and subject again, to be brought back, upon an undertaking of the plaintiff to give material evidence in the county in which the venue was originally laid.3 The plaintiff's right to lay the venue in any county he thinks 3 1 Rule H., 2 Wm. 4, s. 103. N 2 224 Comments on the New Common Law Rules.-Remuneration of Solicitors. proper, is not now interfered with, but it is In future, therefore, the venue, whether local or transitory, can only be changed upon special grounds, as by satisfying the Court or a Judge that injustice may be done, or great additional expense incurred, by the trial of the cause in the county in which the venue is laid. It is contemplated, however, that the parties may sometimes be able to agree upon the county in which the cause should be tried, and upon such agreement, the venue may be changed to the county determined upon by consent. ACTIONS BY PAUPERS. take their fees. Under the new Rule, even when a pauper recovers more than 57., he is entitled to consider the services of his counsel and attorney as gratuitous, but the latter is not prohibited from recovering his costs from the opposite party. The question, we apprehend, which the Courts will have to decide in such a case is, whether the attorney for a successful pauper plaintiff shall be entitled to costs taxed in the ordinary way, or only allowed the costs out of pocket? We shall resume the further consideration of the new Rules upon an early occasion. REMUNERATION OF SOLICITORS. We have only space to direct the atten- THE old rules by which the remuneration of our readers to the very salutary tion of solicitors was estimated,-1st, by check put upon the multiplication of actions the length of the instruments prepared, by pauper plaintiffs, by the Rule numbered whether deeds, pleadings, briefs, or other 121. The privilege humanely allowed to paupers, to bring actions without any liability for costs has, no doubt, in some late instances been grossly abused. The Rule referred to provides that :— "No person shall be admitted to sue in formá pauperis, unless the case laid before counsel for his opinion, and his opinion thereon, with an affidavit of the party or his attorney, that the same case contains a full and true statement of all the material facts, to the best of his knowledge and belief, shall be produced before the Court, or Judge, to whom application may be made; and no fees shall be payable by a pauper to his counsel and attorney, nor at the offices of the Masters or Associates, or at the Judge's Chambers, or elsewhere, by reason of a verdict being found for such pauper exceeding 51." The latter branch of this Rule does not appear to be very clearly expressed; if by the words "no fees shall be payable by a pauper to his counsel and attorney," &c., although he obtains a verdict exceeding 57., it is meant that the pauper's attorney is not entitled to demand any costs from the adverse party even when a pauper plaintiff is successful, the effect will be not merely to limit, but to abolish, pauper actions, and it would have been better to repeal the Statute 23 Hen. 8, c. 15, upon which the pauper privilege rests. The terms of the Rule, however, admit of a narrower construction, and one which it is probable it may yet receive. It seems that where a pauper recovered less than 5, although he was entitled to have his costs taxed in the usual way, the officers of the Courts refused to papers; and 2nd, by the time occupied in formal and technical proceedings,-appear now to be inapplicable to the altered state of professional business. The various new Statutes and Rules and Orders of the Courts of Law and Equity have, in a great degree, either wholly abolished or largely diminished the emoluments which were previously derived by solicitors under the old system. followed by new regulations in the taxation It is evident that these changes must be of costs. The solicitor, according to the fixed scale of the old clerks in Court, was not allowed for a multitude of services which he rendered in the progress of a cause, but was supposed to be compensated by allowances on the length of pleadings, the copies of proceedings, and other emoluments of which the new system has almost wholly deprived him. It is manifestly just that he should be fairly and properly paid for all the actual labour and skill bestowed in his clients' affairs. We are fully convinced that the best interests of the public, in the due administration of justice, are deeply involved in the speedy and right adjustment of this matter. For if fair and proper (not to say liberal), allowances are withheld from the solicitor in the conduct of actions and suits, the class of men now practising in the Superior Courts, and possessing large capital, will gradually withdraw and give place to a needy and inferior order of persons. A certain number of influential practitioners, connected with noble and wealthy families, will confine |