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Mercantile Law Amendment Bill. ing, in order to obtain from the principal and the islands adjacent to any of them, being debtor or any co-surety or co-contractor, in- part of the dominions of her Majesty, shall be demnification for the advances and loss sus- deemed a home port. tained and such payment or performance by such surety shall not be pleadable in bar :
Limitation of Actions. Provided, that no co-surety or co-contractor 13. All actions of account or for not acshall be entitled to recover from any other co-counting and suits for such accounts as surety or co-contractor, more than the just concern the trade of merchandize between proportion to which, as between those parties merchant and merchant, their factors or serEhemselves, he shall be justly liable.
vants, shall be commenced and sued within six Bills of Exchange and Promissory Notes.
years after the cause of such actions or suits,
or when such cause has already arisen then 8. A bill of exchange, whether inland or within six years after the passing of this Act; foreign, and a promissory note shall be nego- and no claim in respect of a matter which arose tiable, although it be not made payable "to more than six years before the commencement order” or
to bearer,” unless a contrary in- of such action or suit shall be enforceable by tention shall be expressed on the face of the action or suit by reason only of some other bill or note.
matter of claim comprised in the same account 9. No acceptance after 31st December, 1856, having arisen within six years next before the shall be sufficient to charge any person, un- commencement of such action or suit. less it be in writing on such bill, or if there 14. No person or persons who shall be enbe more than one part of such bill on one of titled to any action or suit with respect to the said parts, and signed by the acceptor or which the period of limitation within which some person duly authorised by him.
the same shall be brought is fixed by the 21 10. Every bill of exchange drawn in any Jac. 1, c. 16, s. 3, or by the 4 Ann, c. 16, 8. part of the United Kingdom of Great Britain 17, or by the 53 Geo. 3, c. 127, s. 5, or hy the and Ireland, the Islands of Man, Guernsey, 3 & 4 Wm. 4, c. 27, ss. 40, 41, 42, and c. 42, Jersey, Alderney, and Sark, and the islands s. 3, or by the 16 & 17 Vict. c. 113, s. 20, shall adjacent to any of them, being part of the do- be entitled to any time within which to comminions of her Majesty, and made payable in or mence and sue such action or suit beyond the drawn upon any person resident in any part of period so fixed for the same by the enactments the said United Kingdom or islands, shall be aforesaid, by reason only of such person, or deemed to be an inland bill; but nothing some one or more of such persons, being at herein contained shall affect the stamp duty the time of such cause of action or suit accrued payable in respect of any such bill.
beyond the seas, or in the cases in which, by 11. Presentment of a bill of exchange dated, virtue of any of the aforesaid enactments im. or issued after the passing of this Act, to the prisonment is now a disability, by reason of drawee for acceptance or for payment, shall on such person or some one or more of such perdishonour, if unaccepted, be an assignment to sons being imprisoned at the time of such the payee or holder of the bill, by whom it is cause of action or suit accrued. presented, of any money owing to the drawer 15. Where such cause of action or suit with from the drawee at the time of such present- respect to which the period of limitation is ment, not exceeding in amount the sum for fixed by the enactments aforesaid, or any of which such bill is drawn, with any interest ac. them, lies against two or more joint debtors, cruing thereon, and any costs properly incurred the person or persons who shall be entitled to in relation thereto, and for which the drawer the same shall not be entitled to any time would be liable, or if exceeding then of so within which to commence and sue any such much of such money as shall be equal to the action or suit against any one or more of such said sum, interest, and costs; and in case of joint debtors who shall not be beyond the seas the indorsement or transfer of such bill after at the time such cause of action or suit accrued, presentment, the right to such money shall by reason only that some one or more of such be transmissible in the same manner as and joint debtors was or were at the time such along with the bill to each indorsee or holder cause of action accrued beyond the seas, and for the time being, and such assignment or such person so entitled as aforesaid shall not right shall be valid and enforceable in all be barred from commencing and suing such Courts of Law and Equity : Provided that the action or suit against the joint debtor or joint payee or holder shall be liable to all defences debtors who was or were beyond seas at the and objections, including set-off either at law time the cause of action or suit accrued after or in equity, which the drawer would have his or their return from beyond seas, by reason been liable to, as in a question with the drawee, only that judgment was already recovered at the time of presentment.
against any one or more of such joint debtors Repairs to Ships.
who was not or were not beyond seas at the
time aforesaid. 12. In relation to the rights and remedies 16. No part of the United Kingdom of of persons having claims for repairs done to Great Britain and Ireland, nor the Islands of ships, every port within the United Kingdom Man, Guernsey, Jersey, Alderney, and Sark, of Great Britain and Ireland, the Islands of nor any islands adjacent to any of them, being Man, Guernsey, Jersey, Alderney, and Sark, part of the dominions of her Majesty, shall be
Mercantile Law (Scotland) Amendment Bill.
379 deemed to be beyond seas within the meaning | livery of such goods shall from and after the of the 4 & 5 Anne, c. 16, or of this Act. the date of such sale be attachable by or trans
17. In reference to the provisions of the 9 ferable to the creditors of the purchaser ; subGeo. 4, c. 14, ss. 1 & 8, and 16 & 17 Vict. c. ject always to a right of retention over such 113, ss. 24 & 27, an acknowledgment or pro- goods in favour of the seller, for payment of mise made or contained by or in a writing the purchase price of such goods, or such porsigned by an agent of the party chargeable tion thereof as may remain unpaid, or performthereby, duly authorised to make such ac- ance of the obligations or conditions of the knowledgment, shall have the same effect as contract of sale. if such writing had been signed by such party 2. In all cases where a purchaser of goods himself.
shall resell the same to a second purchaser 18. In reference to the provisions of the 21 without having himself obtained delivery of Jac. 1, c. 16, s. 3, and of the 3 & 4 Wm. 4, c. the same, it shall be competent for such se42, s. 3, and of the 16 & 17 Vict. c. 113, s. 20, cond purchaser to demand that delivery of when there shall be two or more joint con- the said goods shall be made to him instead tractors, or executors or administrators of any of the original purchaser ; and the original contractor, no such contractor, executor, or seller, on intimation being made to him of such administrator shall lose the benefit of the said second sale, shall be bound to make such deenactments, or any of them, so as to be charge- livery, on payment of the price of such goods, able in respect or by reason only of any pay- or performance of the obligations or conditions ment of any principal, interest, or other money, of the contract of sale, and shall not be entitled, by any other or others of such joint contractors, in any question with the second purchaser, or executors, or administrators.
others in his right, to retain the same for any Rules and Regulations.
separate debt or obligation alleged to be due to
such original seller by the original purchaser : 19. Rules and regulations may be made and Provided always, that nothing herein contained writs and proceedings framed for the purposes shall affect or prejudice any right of retention of this Act, as under “The Common Law Pro- over such goods competent to the original cedure Act, 1852,” ss. 223, 224, and “The seller, except as between him and such second Common Law. Procedure Amendment Act purchaser, or any such right of retention aris. (Ireland), 1853,” ss. 233, 240.
ing from express contract with the original 20. Interpretation clause.
purchaser : Provided, that such original seller 21. Short title,-" The Mercantile Law may attach such goods while in his own hands Amendment Act, 1856."
or in his own possession, by arrestment or 22. Nothing in this Act shall extend to poinding, at any time prior to the date when Scotland.
the sale of such goods by the first purchaser
to the subsequent purchaser shall have been MERCANTILE LAW (SCOTLAND) practice to the contrary notwithstanding.
intimated to the original seller, any law or AMENDMENT BILL.1
3. In all cases where goods shall, after the
passing of this Act, be sold, without knowledge This Bill recites that inconvenience is felt on the part of the seller at the time that the by persons engaged in trade, by reason of the same are defective or of bad quality, the seller Laws of Scotland being in some particulars shall not be held to have warranted their quality different from those of England and Ireland in or sufficiency, but the same, with all faults, matters of common occurrence in the course shall be held to be at the risk of the purchaser, of such trade, and with a view to remedy such unless the seller shall have given an express inconvenience it is expedient to amend the warranty of the quality or sufficiency of such Law of Scotland as follows :
goods, or unless the goods have been expressly
sold for a specified and particular purpose, in As to Sale of Goods,
which case the seller shall be considered, with1. Where goods have been sold by the out such warranty, to warrant that the same owner, but the same have not been delivered are reasonably fit for such purpose. to the purchaser, and have been allowed to re
As to Guarantees. main in the custody, possession, or control of the seller, it shall not be competent for any 4. Guarantees, securities, or cautionary oblicreditor of such seller, after the date of such gations made or granted by any person for the sale, to attach such goods as belonging to the actings or intromissions of any other person, seller by any diligence or process of Law to the and all representations and assurances as to the effect of preventing the purchaser or others in character, conduct, ability, trade, or dealings his right from enforcing delivery of the same; of any person, made or granted to the effect or and the right of the purchaser to demand de- for the purpose of enabling such person to
obtain credit, money, goods, or postponement It is necessary to consider this Bill with of payment of debt, or of any other obligation reference to all dealings comprised within it, demandable from him or them, shall be in between the merchants and traders of England writing, and shall be subscribed by the person and Ireland and those of Scotland relating to undertaking such guarantee, security, or cauthe sale of goods, bills of exchange, &c. tionary obligation, or making such representa
Mercantile Law (Scotland) Amendment Bill. tions and assurances, or by some person duly and Ireland, the Islands of Man, Guernsey, authorised by him or them.
Jersey, Alderney, or Sark, and the islands ad. 5. No such guarantee, security, cautionary jacent to thein, or any of them, being part of obligation, representation, or assurance entered the dominions of her Majesty, and made payinto after the passing of this Act, shall con- able in or drawn upon any person resident in tinue to be binding on the granter of the same, any part of the said United Kingdom or islands, after a change shall have taken place in any shall be deemed to be an inland bill; but noone of the partners of a company to which the thing herein contained shall alter or affect the same has been granted or made, or of a com- stamp duty, if any, which but for this enactpany for the acts or intromissions of which the ment would be payable in respect of any such same has been granted or inade, in so far as bill. any transactions subsequent to such change 11. Where any inland bill of exchange shall are concerned, without prejudice to the liability be presented for acceptance or payment, and of the granter for all transactions prior to the the same shall be dishonoured by not being date when such change took place : Unless the accepted or paid, or where any promissory intention of the parties that such guarantee, note shall be presented for payment, and dissecurity, cautionary obligation, represenlation, honoured by not being paid, it shall not be or assurance, shall continue to be binding not necessary that a notarial protest shall be taken withstanding such change in the said compa- on such bill of exchange or promissory note in nies, or either of them, shall appear either by order to preserve recoarse against the drawer express stipulation in writing, or by implica. or indorser of such bill or promissory note retion from the nature of the firm or otherwise. spectively; but it shall be sufficient to prove
6. Where any person shall, after the passing such presentment and dishonour, to the effect of this Act, become bound as cautioner for any of preserving recourse as aforesaid by other principal debtor, it shall not be necessary for competent evidence, either written or parole: the creditor to whom such cautionary obliga- Provided always, that nothing herein contained tion shall be granted, before calling on the shall be taken to affect the necessity for a nocautioner for payment of the debt to which tarial protest in order to entitle the holder of such cautionary obligation refers, to discuss or any bill or note to proceed with summary dido diligence against the principal debtor, as ligence thereon. now required by law; but it shall be compe- 12. Where an inland bill of exchange shall tent to such creditor to proceed against the be presented for acceptance or payment, and principal debtor and the said cautioner, or such acceptance or payment shall be refused, against either of them, and to use all action or or where any promissory note shall be prediligence against both or either of them which sented for payment, and payment shall be is competent according to the Law of Scotland: refused, notice of the dishonour of such bill or Provided, that nothing herein contained shall promissory note by such refusal to accept or prevent any cautioner from stipulating in the pay shall, in order to entitle the holder to have instrument of caution that the creditor shall recourse to any other party, be given in the be bound before proceeding against him to same manner and within the same time as is discuss and do diligence against the principal required in the case of foreign bills by the Law debtor.
of Scotland. 77. Where two or more parties shall become 13, In all cases where any bill or note has bound as cautioners for any debtor any dis- been lost, stolen, or fraudulently obtained, the charge granted by the creditor in such debt or holder of such bill or note suing or doing diliobligation to any one of such cautioners with gence thereon shall be bound to prove that out the consent of the other cautioners, shall value was given by him for the same; but such be deemed and taken to be a discharge granted proof may be made by parol evidence. to all the cautioners.
14. When any bill of exchange or promissory As to Bills of Exchunge and Promissory Notes. dorsed after the period when such bill of ex
note, shall after the passing of this Act, be in8. Where any bill of exchange or promis- change or promissory note became payable, the sory note shall be issued without date, it shall indorsee of such bill or note shall be deemed be competent to prove by parole evidence the to have taken the same subject to all objections true date at which such bill or note was issued: or exceptions to which the said bill or note was Provided always, that summary diligence shall subject in the hands of the indorser. not be competent on any bill or note issued
As to Carriers. without a date. 9. No acceptance of any bill of exchange, all carriers for hire of goods within Scotland
15. From and after the passing of this Act, whether inland or foreign, made after the 31st shall be liable to make good to the owner of day of Dec. 1856, shall be sufficient to bind such goods all losses arising from accidental any person except the same be made in writing fire while such goods were in the custody or on such bill (or if there be more than one part of such bill, on one of the said parts), and possession of such carriers. signed by the acceptor or some person duly
As to repairs of Ships. authorised by him.
16. In relation to the rights and remedies of 10. Every bill of exchange drawn in any persons having claims for repairs done to ships, part of the United Kingdom of Great Britain every port throughout the United Kingdom of Pp. 956.
Married Women's Reversionary Interest Bill.–Review: Russell on Arbitration. 382 Great Britain and Ireland, the Islands of Man, NOTICES OF NEW BOOKS. Guernsey, Jersey, Alderney, and Sark, and the islands adjacent to any of them, being part of Treatise on the Power and Duty of an Arthe dominions of her Majesty shall be deemed á home port.
bitrator, and the Law of Submissions and
Awards; with an Appendix of Forms, and MARRIED WOMEN'S REVERSIONARY
of the Statutes relating to Arbitration.
By Francis Russell, Esq., M.A., BarINTEREST BILL.
rister-at-Law. Second Edition. London:
Stevens & Norton and II. Sweet. 1856. By this Bill it is proposed to enact
1. From and after the passing of this Act, it shall be lawful for every married woman by The Law relating to Arbitrations and deed to dispose of every future or reversionary Awards has greatly increased in importance interest, whether vested or contingent, of such since the passing of the Common Law Promarried woman, or her husband in her rigbt, cedure Act, 1854, and of several other rein any personal estate whatsoever, as fully and effectually as she could do if she were a feme
cent Statutes. The power conferred on the sole; and also to release and extinguish her Court or a Judge to direct an arbitration right or equity to a settlement out of any per- before trial has removed, to some extent, a sonal estate to which she, or her husband in grievance which previously existed, where her right, may he entitled in possession, save all the expenses of briefs for several counsel and except that no such disposition, release, or (one only being usually sufficient on a reextinguishment shall be valid unless the hus- terence), and the attendance of witnesses band concur in the deed by which the same was incurred, and then the Judge ordered shall be effected, nor upless the deed be ac
a reference. If an arbitration be the proper knowledged by her as hereinafter directed.
2. Every deed to be executed by a married course, it is preferable, both on account of woman for any of the purposes of this Act delay and expense, that it should take place shall be acknowledged by her, and be other in an early stage of the action. wise perfected, in the manner in and by the We are aware, however, that no small Act passed in the 3 & 4 Wm. 4, intituled “ An number both of suitors and solicitors have Act for the Abolition of Fines and Recoveries, had reason to dispute the justice or expediof Assurance," prescribed for the acknowledg.ency of compulsory references. In many of Assurance," prescribed for the acknowledg, cases one of the parties desires a public interests of married women in land; and all trial before a jury, and is not satisfied with and singular the clauses and provisions in the a private discussion in the arbitrator's room said Act concerning the disposition of lands and a decision given without any reason asby married women, including the provisions signed. There is still a class of suitors for dispensing with the concurrence of the who, like our “sturdy ancestors,” prefer a husbands of married women, in the cases in battle in open Court, and cannot understand the said Act mentioned, shall extend and be how the counsel, who have been paid their applicable to such interests in personal estate fees for a spirited contest before twelve as may be disposed of by virtue of this Act, as fully and effectually as if such interests were
men, are authorised either to assent to the interests in land.
proposition of a reference if it come from 3. Provided always, That the powers of dis- the Judge or themselves to suggest it. position given to a married woman by this Another set of suitors have no objection Act shall not interfere with any power which to a reference, but would prefer selecting independently of this Act may be vested in or their own arbitrators, instead of the Judge limited or reserved to her, so as to prevent her or the counsel nominating some learned cept so far as by any disposition made by her junior whose advancement they wish to under this Act she may be prevented from so promote. But supposing this questionable doing, in consequence of such power having nomination not to arise, then come the been suspended or extinguished by such dis- long delay and serious expense of numerous position.
meetings before the arbitrator, equal to or 4. Provided always, That the powers of far greater in duration than the conferences disposition hereby given to a married woman at Paris. By this grievance all parties, shall not enable her to dispose of any interest whether willingly or reluctantly assenting in personal estate which may have been settled to a reference, are frequently great sufferers. upon her by any settlement or agreement for
It sometimes happens, indeed, that an a settlement made on the occasion of her riage.
able arbitrator being chosen, and the parties 5. This Act shall not extend to Scotland. being willing to proceed forthwith, the evi
dence may be taken in one day and the discussion the next; but usually the meetings
Review : Russell on the Power and Duty of Arbitrators.' last only two or perhaps three hours, bel of arbitrator. 2. Over what matters the cause one or other of the counsel or the submission gives the arbitrator jurisdiction. arbitrator must attend an engagement else- 3. The duration of the arbitrator's authuwhere. No such delays can take place in rity. 4. The power and duty of the arbiCourt. The trial must proceed then and trator before making the award. 5. The there." But before good-natured arbitra- duty of the arbitrator in forming his award. tors, the practice is to accommodate their 6. His duty in awarding on the cause or learned friends without much regard to the suit referred. 7. His duty in awarding pecuniary interests or convenience of the costs. 8. What directions may be given parties. It has been suggested that arbi- in the award. 9. Award under the Lands' trators should be appointed who would Clauses' Consolidation Act. 10. The arbiproceed continuously, allowing of no delay, trator's duty when award referred back. unless the necessity of it were prored as 11. Personal interests of the arbitrator, on the postponement or adjournment of a remuneration, &c. trial occasioned by the absence of a material The Third Part comprises :- 1. Effect of witness, whose evidence could not reason- the award. 2. Its performance. 3. Award ably be anticipated as requisite or could not as a ground of action or defence at Lare. be earlier procured. If a remedy could be 4. The like in Equity. 5. Making the subfound for the evil complained of, a much missiou a rule of Court. 6. Enforcing the larger number of references would take place, award by attachment. 7. By proceedings delay would be avoided, expense saved, and under the Statute. 8. By proceedings in greater satisfaction would result.
the cause referred. 9. Setting aside an But we must now leave this professional Setting aside judgment. 12. Impeaching
award. 10. Referring an award back. 11. grievance and turn to the volume before us,-Mr. Russell's able Treatise on the
award in Equity. 13. Effect of failure of
reference. Power and Duty of an Arbitrator and the Law of Submissions and Awards.
The Appendix comprises forms of submisIn the preface to the present edition, the sions to reference ; of proceedings during Author refers to the important changes
the reference ; awards ; pleading$; and prowhich have been made in the Law of År- ceedings on the award. bitration by the second Common Law Pro
Mr. Russell has effected an improvement cedure Act, the several provisions of which in the mode of giving an Appendix of are noticed in their appropriate places. Statutes : after the first Arbitration Act of Some of these enactments, it is observable, 9 & 10 Wm. 3, c. 15, he has selected only relate to references agreed upon out of the particular sections of subsequent Acts Court, and to proceedings in Equity as well which relate to arbitrations. The subjects as Common Law.
of these Statutes are various, namely: The First Part of the work relates to the Expenses of Prisoners ; Masters and Worksubmission to reference, and treats,-1. Or men; Savings Banks; Ecclesiastical and what matters may be referred. 2. Who Collegiate Lands; Amendment of the Law may refer matters to arbitration, and herein (3 & 4 Wm. 4, c. 42, ss. 39-41); Conveyof the authority of Attorneys and Counsel. ance of Mails by Railways; Insolvents (1 3. How matters may be referred.
& 2 Vict. c. 110, s. 51; 7 & 8 Vict. c. The Second Part treats,-1. Of the office 96, s. 31); Joint-Stock Companies; Lands
taken for a public undertaking ; Railways; · Mr. Malcolm Kerr, in his edition of the Inclosure of Commons ; Small Debts (9 & Common Law Procedure Acts, observes, that 10 Vict. c. 95, s. 77); Public Health; the Common Law Commissioners, in their report, expressed an opinion that provisions for Metropolitan Sewers; Quarter Sessions ; securing, as far as practicable, a continuous Bankrupts (12 & 13 Vict. c. 106, ss. 153, process to the end of the arbitration, and an 154); Common Law Procedure (17 & 18 abolition of those frequent adjournments which Vict. c. 125, ss. 3, 5-17); Friendly Soare at present the bane of that mode of pro- cieties. By this method of adding to the ceeding, should be made. The only provision, volume only the essential sections, its bulk however, is one prescribing the making of the is not much increased ; and this example, award within three months (s.15). A reference, we trust, will be followed. If, however, an if made to a lawyer appointed by the parties, may author fully states the import of statutory nevertheless continue to be the tedious, expensive, and unsatisfactory proceeding which it provisions in the body of his work, we see has hitherto been, for the costs to be incurred no necessity for giving the enactments verin three months may easily be made to exceed batim in an Appendix. Every practitioner the value of the subject-matter in dispute." has the Statutes relating to the Law in some