of that Act. This summons was heard before Channell, B., who referred the question to the Court.

Tompson Chitty having obtained a rule nisi accordingly,

Its lan

Crompton Hutton now shewed cause. The 18 & 19 Vict. c. 67, s. 1, enacts that "all actions upon bills of exchange or promissory notes, commenced within six months after the same shall have become due and payable, may be by writ of summons in the special form contained in Schedule A. to this Act annexed, and indorsed as therein mentioned," &c. A banker's check is within that enactment. guage is general and will include all instruments in the nature of bills of exchange and promissory notes. A banker's check is a bill of exchange payable at sight. It is not the less a bill of exchange because it is never intended to be accepted. The statute is a beneficial one and ought to receive a liberal construction. In Rochford v. Daniel (a), Willes, J., decided, at Chambers, that a check was within the Act. The Stamp Act, 55 Geo. 3, c. 184, Sched. Part I., which imposes a certain duty on bills of exchange, expressly exempts bankers' checks, thereby shewing that the legislature considered checks to be bills of exchange.

Tompson Chitty, in support of the rule.-The question is, not whether the holders of dishonoured checks ought to have this summary remedy, but whether the legislature has given it to them. The words of the 18 & 19 Vict. c. 64 are confined to bills of exchange and promissory notes. A check may, for some purposes, be a bill of exchange, but it is not so in common parlance or for the purposes of this Act. In the 55 Geo. 3, c. 184, Sched. Part I., the legislature uses a different expression when speaking of bills of (a) 1 F. & F. 602.

VOL. IV.-N. S.

H H

EXCH.

1860.

EYRE

ย.

WALLER.

1860.

EYRE

v.

WALLER.

exchange and bankers' checks. So in the Stamp Acts, 16 & 17 Vict. c. 59 and 17 & 18 Vict. c. 83, checks are designated as "drafts or orders for the payment of money." The 1 & 2 Vict. c. 110, s. 12, empowers the sheriff to seize "any checks, bills of exchange, promissory notes," &c. If the legislature had intended to include checks in the 18 & 19 Vict. c. 67, it is reasonable to suppose that they would have used similar language. The provisions of that Act are limited to actions upon bills of exchange or promissory notes commenced within six months after the same shall have become due and payable," which cannot apply to checks. A bill of exchange or promissory note is payable at a certain time expressed on the face of it, so that there is something definite to shew when it became due and payable; but a check is not payable until after presentment, which may be at any time within six years after it is drawn. Again, the 5th section provides that "the holder of every dishonoured bill of exchange or promissory note shall have the same remedies for the recovery of the expenses incurred in noting the same for nonacceptance or non-payment, or otherwise, by reason of such dishonour, as he has under this Act for the recovery of the amount of such bill or note." A check is not noted for non-acceptance or non-payment. Then, by the 6th section, the holder of any bill of exchange or promissory note may issue one writ of summons against all or any number of the parties to the bill or note. Moreover, the preamble shews that the object of the Act was to prevent frivolous and fictitious defences, but checks were not usually subject to such defences.

POLLOCK, C. B.-The rule ought to be discharged. It would be exceedingly dangerous if we were to adopt the result of the criticisms of Mr. Chitty on this subject. He

asks us to restrain the operation of a most beneficial enactment, because the legislature has not used in it all the expressions which are found in other Acts, certainly not in pari materiâ. Considering how acts of parliament are drawn at the present time, I say it would be dangerous to limit the construction of an Act, because the legislature has not used all the words which they might have used upon the subject. According to the notion of lawyers, a check is a bill of exchange. It is so treated in the Stamp Act, 55 Geo. 3, c. 184, where the legislature thought it necessary to prevent the application of its provisions to checks, because they come within the denomination of "bills of exchange." We ought rather to extend than restrain the operation of the Act in question, for if there is any negotiable instrument to which effect ought to be given by a Court of law it is a check which should be considered as cash.

MARTIN, B.-I am of the same opinion.

BRAMWELL, B.—I am of the same opinion. As to the argument of Mr. Chitty, that in the case of a check there is no liability until it is presented-a bill of exchange, though it has never been accepted, is within the Act. It is true that a check is not commonly called a bill of exchange, but in construing a statute we ought to give its words their natural and legal meaning unless there is something in the context which requires a different construction, which is not the case here. Since the recent alteration in the stamp law, which has imposed a duty on checks, it is difficult to distinguish them from bills of exchange, for they are constantly made payable to order.

WILDE, B.--I am of the same opinion. It seems to me

1860.

EYRE

v.

WALLER.

1860.

EYRE

v.

WALLER

that a check is within the words of the Act, and also within the mischief intended to be remedied. The argument against that view is, that terms are used in other Acts which are not used in this Act. As to the 5th and 6th sections, it is very natural that there should be some sections relating to bills of exchange only; it is enough to say that the first section applies to checks. With respect to the other Acts referred to, in which the word check is introduced, they are not in pari materiâ and have a totally different scope. Nothing can be more dangerous than to construe one statute by another, especially when we consider the mode in which statutes are framed in the present time.

Rule discharged.

May 4.

THE LIVERPOOL BOROUGH BANK v. LOGAN and Another.

N. accepted THE declaration stated, that before the making of the

bills of ex

change, for 30697. and

94311, against goods shipped on his account,

which bills to
gether with the

bills of lading
were held by
a certain Bank.
The plaintiffs,
at the request

of N., obtained
the bills of

Jading from the

Bank upon

agreement between the plaintiffs and the defendants hereinafter mentioned, one James H. Nuttall had accepted two bills of exchange, one for 30697. 10s. 11d., payable to the order of the drawers six months after sight, and the other

for 94317. 8s. 7d., payable to the order of the drawers six months after sight, and which bills of exchange were

accepted by the said J. H. Nuttall against goods shipped from Manilla, on account of the said J. H. Nuttall, by

guaranteeing them the payment of the bills of exchange. The cargo having fallen in value, and the plaintiffs having ascertained that the defendants were interested in it to the extent of one-half, the defendants at their request signed the following undertaking:-"The produce held on account of N. to be sold to the best advantage by the brokers in whose hands it is now placed, and under the advice of L. & Co. (the defendants) as far as practicable; and after the current sales are made up and the amount guaranteed deducted, L. & Co. will bear one-half of whatever loss may appear on the transaction." The plaintiffs paid the bills of exchange, and on the sale of the cargo there was a deficiency of 42157. N. became bankrupt, and the plaintiffs proved against his estate for the whole loss, and received dividends thereon amounting to 11377.

Held, that the defendants were not entitled to credit for the dividends received from the estate of N.

a certain ship called the "Aurifera," and were held for value by a certain bank called the Bank of Liverpool, together with the bills of lading of the said cargo; and the plaintiffs, at the request of the said J. H. Nuttall and for a sufficient consideration in that behalf, and before the said bills of exchange became due, guaranteed to the said Bank of Liverpool the payment of the said two bills of exchange; and the said Bank of Liverpool, in consideration of the said guarantee, and by the direction of the said J. H. Nuttall, transferred to the plaintiffs the bills of lading of the said goods, in order that the plaintiffs might hold the same as a security for their liability under the said guarantee. That afterwards, and before the making of the agreement between the plaintiffs and the defendants hereinafter mentioned, the plaintiffs discovered, as the fact was, that the defendants were interested in the said goods, subject to the payment of the said bills of exchange and the charges thereon, to the extent of one-half, and thereupon it was, with the consent of the said J. H. Nuttall, mutually agreed between the plaintiff and the defendants, that the said goods should be sold to the best advantage by the brokers in whose hands they were then placed, and under the advice of the defendants as far as practicable, and that after the account sales were made up, and the amount guaranteed by the plaintiffs as aforesaid and their charges deducted, the defendants would bear and pay to the plaintiffs half of whatever loss might appear on the transaction.-Averments: that the plaintiffs have performed all things, and all things have happened, necessary to entitle them to sue the defendants for the breach of the said agreement and that onehalf of the said loss on the said transaction, according to the true intent and meaning of the said agreement, has amounted to the sum of 2582l. 9s. 1d.-Breach: nonpayment.

1860.

LIVERPOOL
BOROUGH
BANK

v.

LOGAN.