CHEQUES.

part of the draft, and should not be obliterated or added to or altered CROSSED after the draft was issued; and the banker on whom the draft is drawn is prohibited from paying to any one except the banker with whose name the draft is crossed.a

The drawer of a bank draft cannot plead against an onerous indorsee compensation in respect of a debt due to him by the payee.1 It was observed, in M'Gilchrist's case, that such a draft was equally free from compensation with a bank-note.'

BANK DRAFT.

The Juridical Styles contain the form of the protest of the draft on a banker for non-payment, and the form of letters of horning on the protest registered.2 But in M'Gilchrist's case it was questioned whether horning was competent on such a document; and the charge there was PROTEST OF turned into a libel. Mr. Thomson expresses doubt whether even protest is competent,3 and says that summary diligence is not warranted; that being a statutory remedy, not extended, as he thinks, to bank drafts. The safe remedy, in case of non-payment, is an ordinary action.5

4

Apart from the Act regarding the effect of obliterating or adding to or altering the crossing written upon drafts, which does not extend to bills or promissory-notes, drafts on bankers are on the same footing as bills and promissory-notes, as regards vitiations by erasure or alterations. These, if made in material parts after the draft is issued, or without consent of parties before issue, render the document void."

.

We have now completed the consideration of this important class of

1 M'Gilchrist's case.

2 Style Book, ii. 22, & iii. 596.

3 Thomson, p. 191.

4 Ibid. 557.

5 See on this subject, Menzies, p. 385.

6 Edinburgh & Glasgow Bank v. Forbes & Samson, 13 July 1858, 20 D. 1246.

a The above-mentioned Statutes relating to crossed cheques were repealed by 39 CROSSED & 40 Vict. cap. 81.

By sect. 4, where a cheque bears across its face an addition of the words "and Company," or any abbreviation thereof, between two parallel transverse lines, or of two parallel transverse lines simply,'... the cheque shall be deemed to be crossed generally.' Where the cheque is crossed with the name of a banker, it is 'deemed to be crossed specially, and to be crossed to that banker.'

Section 5.-Where a cheque is uncrossed, a lawful holder may cross it generally or specially.

Where a cheque is crossed generally, a lawful holder may cross it specially. Section 6. The crossing is a material part of the cheque, and it is declared unlawful to obliterate, or, except as authorised by the Act, to add to or alter the crossing. Section 7.-'Where a cheque is crossed generally, the banker on whom it is drawn shall not pay it otherwise than to a banker.'

'Where a cheque is crossed specially, the banker on whom it is drawn shall not 'pay it otherwise than to the banker to whom it is crossed or to his agent for 'collection.'

Section 8.-Payment is to be refused of a cheque crossed specially to more than one banker, except when crossed to an agent for collection.

Section 9 provides for the protection of the banker, or the drawer, where the banker has paid a crossed cheque in terms of the provisions of the Act 'in good faith and without negligence.'

Section 10.-A banker paying a crossed cheque contrary to the provisions of the Act is liable to the true owner of the cheque for any loss he may thereby sustain.

CHEQUES ACT,

1876.

documents as far as our limits will allow; and, in concluding, I shall only press upon your attention that, as these writings enjoy remarkable privileges, they have corresponding peculiarities, requiring minute and anxious care and accuracy in framing, negotiating, and enforcing them, the non-observance of which may involve serious professional responsibilities.

TITLE VIII.

ENFORCEMENT OF OBLIGATIONS.

CHAPTER I.

a

WE have now considered the mode in which ordinary obligations, including those contained in bills and promissory-notes, are constituted, transmitted, and extinguished; and we shall proceed to examine the various modes in which, when necessary, lawful force is applied for compelling the fulfilment of such obligations,-that is, the circumstances and manner in which the law steps in, and the proceedings which may be adopted under sanction of the law, in case the debtor or obligant refuses or is unable to fulfil his obligation, or to comply with the decree of the Court against him. In such cases, both the debtor's person and estate may be attached or affected at the instance of his creditor; but the law does not allow the creditor to proceed either at his own hand, or in his own name. The steps which may competently be taken have a certain degree of violence in them, authorising, on the one hand, the apprehension and detention of the debtor's person, and, on the other, the forcible withdrawal from him of the control, and finally of the actual property, of his estate, unless he shall fulfil his obligation; and although these steps are purely of a civil character, and proceed on the petition or at the instance of the private party, that is, the creditor, they run either in the name of the Sovereign, or of a Court having jurisdiction, and are executed and enforced by public officers only. The steps here referred to are, in England, termed 'writs of execution;' in Scotland, they are called 'diligence;' a term, the origin of which, as applicable to such writs, does not appear to be very clearly known. Lord Stair's ex- DILIGENCE. planation, that they are called diligence, because they excuse the users thereof from negligence,-is thought to be no other than an ingenious conjecture by Mr. Ross,' who says the word is purely French, and is the ordinary practical term synonymous with the word 'pursuit,'-sometimes meaning the process itself, and at other times the execution. Lord Stair 1 Ross' Lectures, i. 234.

a See note at end of next chapter.

REAL AND
PERSONAL
DILIGENCE.

draws a distinction between diligence and executorials, which, Mr. Ross says, is from the French practice, and coincides exactly with our own.1 When letters are issued by the King, or the Sovereign Courts, for compel'ling obedience in civil business, they were, and still are, termed "Letters 'Exécutoires:" when executed they become diligences. Our letters and precepts, before execution, are also termed executorials; hence the 'language of our clauses of registration,-" that letters of horning, or other executorials necessary, may pass hereon." It is only after 'execution, that, properly speaking, they become diligences, in which 'term are included the executions or indorsations themselves. In general, however, the King's letters are termed diligences even before execution.' Mr. Ross here, you will observe, uses the term 'indorsations' as synonymous with 'executions ;'-that is because the executions were, in practice, indorsed on their warrants.

From the undoubted influence of French customs upon judicial forms and practice during a pretty long period in this country, it is natural to suppose that our word 'diligence' is immediately derived from France; but, probably, the origin of the word used both there and here is the Latin word 'diligentia,' in the sense of earnestness or eagerness. The proceedings by which alone force could be employed, in order to bring about the payment of a debt, or fulfilment of a decree, and by the employment of which a creditor would evince his determination to recover his debt, and a debtor would be made immediately to employ his utmost efforts to satisfy the claim, might well be regarded as the only evidence of earnestness. Viewed as a practical matter, the definition given by Professor Menzies appears to be very satisfactory, viz., 'Diligence is the legal procedure, by which a creditor strives to obtain. 'performance of his debtor's obligation.'2

Diligence is divided into real-that is, against the debtor's real or heritable estate, or which requires a real right in such estate as its warrant; and personal-that is, against his person, and personal or moveable estate; though, in a certain sense, diligence against the personal estate ought to be considered as real diligence. The proceedings applicable to diligence against the heritable estate will be considered in connection with heritable or real rights. We shall, at present, confine our attention to diligence against the person and personal estate; not including poinding the ground, which, though affecting only moveable or personal effects, is available exclusively to creditors holding heritable or real securities over the ground.

A great change, in regard to the form of procedure applicable to ordinary cases of personal diligence, was introduced by the Personal Diligence Act of 1838.3 But, substantially, the mode of proceeding thereby authorised is of the same import as that which was superseded. And the consideration of the older forms will greatly facilitate the understanding of the forms introduced by the Act, and now in general use. 1 Stair, iv. 41. 1. 2 Menzies, p. 285. 31 & 2 Vict. cap. 114.

IMPRISONMENT

SCOTLAND.

BURGHS.

These older forms, it may be also observed, are not abolished. They may HISTORY OF competently be adopted; and I think it of importance to examine them, FOR DEBT IN and, before doing so, to touch very briefly on the history of the power of imprisonment for debt in Scotland. That power appears to have been admitted only with difficulty, and by slow degrees. We find it allowed in royal burghs, under the Act of Warding,—a form of procedure supposed to have been introduced by a Statute of Robert Bruce,1 and which, IN ROYAL in such burghs, is still in use. The imprisonment, in such cases, proceeds on a decree of the magistrates. But not only was the Act of Warding confined in its operation to royal burghs, but the diligence against the person even there was not authorised as a first step of execution. The form bears (what was at one time, no doubt, a reality, though now a mere fiction)2 that the officer has reported on oath that he has sought for moveables in order to poind them,-that is, to set them apart with a view to their being sold, and the creditor paid out of the price, but has found none; and thereupon authority is issued to him by the magistrates to put the debtor's person in ward, there to remain until he shall make payment of the debt.

Passing beyond royal burghs, the first case in which we meet with authority to imprison is that of the non-fulfilment of an obligation ad factum præstandum. And here the warrant to imprison was issued as a first step of diligence, and without discussion of the obligant's moveables being previously required. In the case of ordinary debts, however, the spirit of the law appears to have been very averse to acknowledge the right of imprisonment. This may in some measure be accounted for by the fact, that the feudal law was practically the law of the land. Imprisonment, when it took place, deprived the superior of the services of a vassal or dependant; and superiors, as we know, were very jealous of any interference with their rights and privileges. But the power of imprisonment, already known in burghs under the Act of Warding, and beyond burghs in reference to obligations ad facta præstanda, came to be a desideratum as to all obligations; and the Church Courts-very CHURCH powerful at the period now referred to-were made available as the means of obtaining that power in reference to ordinary debts. The Church having had the right to imprison those who disobeyed her injunctions, it became usual, before the time of the Reformation, to take obligations for payment of debt under sanction of an oath by the debtor, and containing consent to his excommunication on failure to pay. By this means the matter was subjected to the cognisance of the Church Courts; and if the debtor failed to pay,-if he did not fufil what he had sworn to do, he was excommunicated, letters of poinding of his moveables were executed, and also letters of cursing against himself personally. Under the latter, he was charged to pay the debt, that is, to perform his oath, within forty days; and in case of failure, or of dis

1 12 Rob. I. cap. 19.

2 Marshall v. Lamont, 8 March 1803, M. App. Burgh Royal, No. 14.

COURTS.