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460 Bankers' Drafts' Bill.-Simple Contract Debts' Bill.- Mercantile Law Amendment.
SPECIALTY AND SIMPLE CON
TRACT DEBTS' BILL.
Actions of debt for rent upon any indenture of demise, of covenant, or debt upon any bond or other specialty, and of debt or sci. fa. upon any recognizance, shall be brought within three years after end of present Session, or within six years after the cause of such actions
or suits; s. 2.
The Act not to extend to Scotland; s. 3.
gistrar shall be verified by a declaration of the directors of the company delivering the same, or any two of them, or of any two other principal officers of the company, made in pursuance DEBTS by specialty shall not be entitled to of the Act passed in the 6 Wm. 4, c. 62; but priority in the administration of the estates of no fees shall be charged in respect of the re-persons dying after January 1, 1857. Proviso, gistration anew of any company completely saving lien or charge of creditor on land, or registered under the said Act of the 8 Vict. c. landlord's right of distress for rent, or any 110, in cases where the liability of the share other security held by creditor; s. 1. holders is not intended to be limited, or where such company has already obtained a certificate of complete registration with limited liability. 107. L. Upon compliance with the foregoing requisitions the registrar of joint-stock companies shall certify under his hand that the company so applying for registration anew is incorporated as a company under this Act, and in the case of a limited company, that it is limited, and thereupon all provisions contained in any deed of settlement, Act of Parliament, Royal Charter, or letters patent, or other instrument constituting or regulating the company, shall be deemed to be regulations of the company within the meaning of this Act: and REPORT OF THE SOCIETY OF SOLICITORS all the provisions of this Act shall apply to such company in the same manner in all respects as if it had been originally incorporated under this Act; subject nevertheless to the reservations hereinafter contained with respect to the existing rights of creditors and other persons; and subject to this proviso, that except in so far as it is hereinafter permitted, no company constituted by Act of Parliament, Royal Charter, or letters patent, shall have power, by special resolution, or otherwise to alter any of the provisions contained in such Act of Parliament, charter, or letters patent.
108. M. Any company may, for the purpose of obtaining registration with limited liability; change its name by adding thereto the word "limited," or do any other Act that may be necessary.
109. N. The certificate of incorporation given to any existing company, in pursuance of this Act, shall be conclusive evidence that all the requisitions of this Act in respect of registration anew have been complied with, and the date of such certificate snall be deemed to be the date at which the company is incorporated
under this Act.
AMENDED BANKERS' DRAFTS"
THIS Bill, as amended in Committee, proposes to enact, that in every case where a draft on any banker made payable to bearer or to order on demand bears across its face an addition, in written or stamped letters, of the name of any banker, or of the words "and company," in full or abbreviated, either of such additions shall have the force of a direction to the
bankers upon whom such draft is made that the same is to be paid only to or through some banker, and the same shall be payable only to or through some banker.
MERCANTILE LAW (SCOTLAND)
OF THE SUPREME COURTS IN SCOT-
THE Council of the Society of Solicitors of the Supreme Courts in Scotland, have taken into consideration the Bill of the Lord Chancellor, for amending the Laws of Scotland affecting Trade and Commerce, and have printed a very able Report on the several clauses of the Bill. We propose to make some extracts therefrom on the more important provisions, particularly such as ferences which exist between them and the bear upon the Laws of England, or the difLaws of Scotland.
"Clause 1 provides that, where goods have been sold, but not delivered to the purchaser, and allowed to remain in the custody, posses sion, or control of the seller, it shall not be competent' to attach the same as the property of the seller, to the effect of preventing the purchaser or others in his right from enforcing delivery of the same.' And the right of the purchaser to demand delivery of such goods shall be attachable by or transferable to the creditors of the purchaser,' subject to a right of retention for payment of the price, or performance of the contract of sale.
"This clause will produce the following changes in the law of Scotland :
will transfer the property from the seller to the "1. The completion of the contract of sale buyer, without delivery.
seller cannot attach the undelivered property, 2. As a consequence, the creditors of the and the creditors of the buyer may competently attach it.
third party by the words, or others in his "3. The buyer's right is transferable to a right, and although this is not an alteration on the present law, a consequence which flows from it is an alteration, and will be immedi ately noticed.
Mercantile Law (Scotland) Amendment Bill.
"It will be observed that the condition of demanding delivery is payment of the price of the thing sold, or performance of the specific
owner, but the same have not been delivered to the purchaser, and have been allowed to remain in the custody of the seller for delivery, it shall not be competent,' &c.
"So, if it should be established that the seller was allowed to retain the custody of the goods for any other purpose than that of implementing the contract of sale by delivery, the effect of the clause would not follow.
"Clause 2 provides that a seller shall not be entitled to a right of retention generally against a second purchaser, or others in his right; provided that nothing herein contained shall affect or prejudice any right of retention over such goods competent to the original seller, ex- "The deletion of the words 'possession or cept as between him and such second pur- control' is suggested, because possession and chaser, or any such right of retention arising control are the badges of property in movefrom express contract with the original pur-ables; and it would be anomalous to recogchaser;' provided also, that the original seller may attach the goods in his own hands by arrestment or poinding..
This clause is intended to obviate the hardship supposed to have arisen in the recent cases of Melrose and M'Naughton.
"The Council have to express their regret that the Royal Commissioners did not see fit to recommend for adoption in England, the principles of the law of Scotland in relation to the effect of the contract of sale on ownership. These principles enter deeply into the theory and practice of our law, not only in relation to moveable property, but to transactions affecting heritable property. The essential distinction between the titulus, and modus, transferendi dominii, lies at the root of the differences in principle and effect between our law and that of England. The principles of the law of Scotland are more simple and scientific than the special rules of the English law, and produce no jarring effects in their operation; and they have been approved of by a large majority of the public bodies who have returned replies upon the points of difference. It would therefore have given the Council greater satisfaction to have reported that the rules of the Scotch law had been recommended by the Royal Commissioners.
"On the other hand, the Council cannot lay out of view, that the trade of Scotland bears a small proportion to the trade of the United Kingdom, and a much smaller proportion to the trade of Europe and America; and that the law of America, France, and Holland is the same as the law of England and Ireland.
"Presuming, therefore, that the expediency of the proposed alterations has been established, the Council beg to offer the following observations upon the first and second clauses of the Bill:
nise these public tests of ownership in one person, and the real right of the property in another, and these two actually holding adverse interests.
"It is thought that a question may arise under Clause 1, whether it does not abrogate the landlord's right of hypothec, by placing him on a level with any creditor' of the seller. This is plainly not intended, and it is respect fully recommended that an addition should be made to the clause, declaring that the landlord's right of hypothec shall not be affected by the enactment.
"It appears that the effect of the enactment contained in Clause 2 is not intended to be carried farther than to save a baná fide subvendee from the risk of liability for a general balance due by the first vendee to the original vendor. This is distinctly stated in the Report of the Commissioners. It follows, therefore, that the right of retention for a general balance would continue to be competent to the original seller in any question with the original purchaser, or his creditors. At least, from the terms of the Report, the Council expected to find the proposed enactment so limited. The concluding part of the Report on this point is as follows:- What we have suggested isnot that these principles in the law of Scotland should be abolished or changed, for they are extensively interwoven with other departments of the law of that country, the consideration of which does not fall within the scope of our commission, but merely-that their consequences should not be pushed so far as to expose a bona fide sub-vendee, in the circumstances under consideration, to the risk of liability for such extraneous claims.'
"It humbly occurs to the Council that such a limitation of the proposed alteration is expedient, upon grounds, which will be obvious, "One of the dangers to be apprehended arising out of the effect produced by bankfrom the effects of Clause 1, is, that goods, ruptcy-in reducing opposing claims, whether after being purchased, may be allowed to re-liquid or illiquid, present or future, into one main for an indefinite time with the seller, may accounting, valuing securities, and ascertainbe made a source of credit with the public in his favour, and the subject of second contracts. Perhaps no perfect remedy can be provided against this, but, it is thought, the risk would be abated by the words 'possession or control' being struck out of the first part of the clause, and after the word 'seller' inserting the words 'for delivery. The clause would then read thus:
"Where goods have been sold by the
ing one balance due by, or due to, the bankrupt; and it is only in cases of bankruptcy that the right of retention for general balance can be of any benefit to the seller against the purchaser and his creditors.
"But it is thought that Clauses 1 and 2 of the Bill taken together, take away the right of retention, not only with the sub-vendee, but with the creditors of the first vendee. Clause 1 provides that the right of the purchaser to
Mercantile Law (Scotland) Amendment Bill.
demand delivery shall be attachable by, or transferable to, the creditors of the purchaser;' and the only condition is, payment of the price, or such proportion thereof as may remain unpaid, or performance of the contract of sale. In the face of this enactment the seller could
not maintain a right of retention for general balance against the purchaser or his creditors, unless such right was a condition of the contract. Clause 2 contains the proviso, that nothing herein contained shall affect or prejudice any right of retention over such goods competent to the original seller, except as between him and such second purchaser, or any such right of retention arising from express contract with the original purchaser.' It is not stated in what circumstances the right would be otherwise competent,--the only instances are in a question with the first purchaser himself, or with his creditors doing diligence, or with a trustee on his sequestrated estate. But the terms of Clause 1 seem to settle the question of competency with these parties against the right of the original seller.
equity. Parties dealing in bona fide with the seller, as ostensible owner, should be protected. The English rule places them upon the same footing with parties purchasing stolen goods." To the alterations proposed by clauses 3 to 6 inclusive, no objection appears to be made.
"Clause 7. The discharge of one cocautioner without the consent of the other cautioners, to discharge such co-cautioners.
"This seems to be the strict rule of the English law. The Council were formerly of opinion that the rule of the law of Scotland, which only relieves the co-cautioners to the extent of the share of the debt for which the cautioner discharged was liable, was more equitable. Mr. Anderson, Q.C., in his separate note, adopts the same view. The Report puts the equity strongly the other way, and, on reconsideration, the Council think the clause should be approved of. It should be carefully observed, however, that the clause is strictly limited to cautionary obligations, and does not apply to joint obligations.
"The provision making it competent to the original seller to attach the goods in his own "In the event of the bankruptcy of one cohands, by arrestment or poinding, at any time cautioner, the creditor is, by the existing Bankprior to the intimation of the sub-sale, is in- rupt Act, entitled to consent to the discharge of tended for the purpose of protecting him the bankrupt without injuring his claim against against such sub-sale only. This appears from the solvent cautioner. This right should be the Report; but suppose the original seller reserved, otherwise it might be held to be redoes use arrestment in his own hands before pealed by this clause." intimation of a sub-sale, and the sub-purchaser also arrests upon a dependence laid upon his sub-contract, and takes steps to make his author bankrupt within 60 days, which he may easily accomplish, he would be entitled to claim a pari passu ranking upon the value of the goods with the original seller. The diligence of poinding is liable to the same competition. The protection afforded by these diligences is therefore not complete, but perhaps it is the best that can be devised.
"The Council refer (but with hesitation, as they may have been under the consideration of the framers of the Bill) to the Warehousing Acts and the Excise Acts, which contain special enactments as to the transfer of goods sold while in bond, namely, an intimation to the warehouse-keeper, and the transfer entered in the warehouse books. This observation is made, as it may admit of doubt whether Clauses 1 and 2 are in all respects aptly framed, to meet the case of goods sold while in bond.
Then the three succeeding clauses in the Bill, 8, 9, and 10, are approved.
"Clause 11. Where any inland bill of exchange is dishonoured by non-acceptance, or non-payment, or promissory note by nonpayment, it shall not be necessary that a notarial protest shall be taken on such bill of exchange or promissory note in order to preserve recourse against the drawer or indorser of such bill or promissory note respectively, but it shall be sufficient to prove such presentment and dishonour to the effect of preserving recourse as aforesaid by other competent evidence, either written or parole, provided that nothing herein contained shall be taken to affect the necessity for a notarial protest in order to entitle the holder to proceed with summary diligence thereon.'
"In the reply to the Royal Commissioners, the Council disapproved of any alteration upon the existing law. It is not improbable that a misapprehension has arisen as to the practice "The clauses make no provision for the case in Scotland. The language of the Report and of goods sold and allowed to remain with the this clause leads to the opinion that a notarial seller, who, after such sale, sells and delivers instrument of protest is actually extended on the goods to another party,-Whether the first the last day of grace. This is not the case, as buyer's only remedy is against the seller for every person in trade knows. If the bill, or breach of contract, or whether he is entitled to note, be dishonoured, it is marked by the novindicate the goods, or recover damages, from tary, but nothing more is done until diligence, the second buyer? It is stated in Mr. Ander- or action, has to be prosecuted, when the inson's note that the latter is the remedy allowed strument is extended, and produced in evidence in England. If it be intended to make this the of the dishonour. The ground of objection is, rule in Scotland, as an inference from the al- that unless the present practice is strictly adtered law now proposed, the Council respect-hered to, the remedy of summary diligence will fully remonstrate against it as contrary to all in a very large number of cases be lost. To
Mercantile Law Amendment.—Review: Williams on Unsoundness of Mind.
preserve recourse and this remedy against drawers and indorsers, the instrument of protest must bear that the bill, or note, was presented and dishonoured at the place of payment on the day it fell due. If, therefore, the bill, or note, be not marked by the notary (or noted, as it is commonly called,) there could be no instrument, and consequently summary diligence could not be used against the parties liable in recourse. If, in all cases, the billholder was the only party concerned, he might be allowed to exercise his discretion; but where there are more than one indorser, who, of course, must be ignorant of the dishonour until the second or third day after the bill is due, their right of relief against prior indorsers would be most materially impaired and prejudiced by losing this valuable remedy. It is thought a bill-holder is bound so to act, in the negotiation of the document, as to preserve all the rights and remedies in favour of indorsers, which the law affords for enforcing payment of the debt; and one of the most important privileges of summary diligence, besides despatch, is that the execution cannot be stayed without caution or consignation. It is trusted, therefore, that the clause will be withdrawn from the Bill.
"If it is allowed to remain, and become law,
it will be kept in view, that it does not apply to foreign bills of exchange."
The remaining clauses, subject to some verbal amendments are approved.
NOTICES OF NEW BOOKS.
On Unsoundness of Mind, in its Medical
may be mania without delusion;' while Lord Denman, in his charge to the jury in the case, Regina v. Smith,' had observed in 1849, 'To say a man was irresponsible, without positive proof of any act to show that he was labouring. under some delusion, seemed to him to be a presumption of knowledge which none but the great Creator Himself could possess.' Again, Lord Campbell, in a debate in the House of Lords,' after alluding to his very long and very large attention to the subject,' said, He had looked into all the cases that had occurred since Arnold's trial, 1723, and to the directions of the Judges in the case of Lord Ferrers, Bellingham, Oxford, Francis, and M'Naughten, and he must be allowed to say that there was a wide difference, both in meaning and in words, in their descriptions of the law.' We may add to this, the aggregate opinion of the fifteen Judges, who decided in 1843, That before a plea of insanity should be allowed, undoubted evidence ought to be adduced that the accused was of diseased mind, and, at the time he committed the act, he was not conscious of right and wrong. Hence, though a man be of a diseased mind, if he is conscious of right and wrong, it follows that he must be considered as a responsible party."
But the Author contends, that all medical experience makes one part of this proposition oppose the other, for in the knowledge of right and wrong is merged the question of diseased mind; and he adds, that while perfectly sound minds may ignore the criminality of a particular act, the distinct knowledge of its criminal nature can co-exist with a mind thoroughly deranged.
Whilst the Author freely criticises the views of some of our most eminent Judges in the discussion of the validity of pleas of insanity, we do not find that he supplies a THE five Essays composing this volume better guide than they have afforded to aid previously appeared in the Dublin Quar- a jury in coming to a just conclusion. It terly Journal of Medical Science, and have is unquestionably true, that juries are suffibeen carefully revised by Dr. Williams. ciently inclined to find a prisoner insane They relate to a difficult and important who is accused of the crime of murder, and branch of Criminal Law, upon which there will not find a verdict which will subject has been much conflict of opinion both him to the punishment of death, unless amongst medical men and lawyers. Dr. they are fully satisfied of his being in a Williams maintains that the diversity of state of mind sufficiently sound to justify opinion in medical writings and the state- the infliction of the last penalty of the law. ment of legal doctrines is owing to the We say "sufficiently sound," because if identification of physic with law. He says, perfect soundness of mind were required at 'Insanity is, or is not, a disease! If it is the time of the commission of the offence, not a disease, the law is strangely defective; there would probably be few criminals who since, as Dr. Forbes Winslow in his admirable might not escape. Indeed, advocates, in writings on this particular subject has so clearly their zeal, have sometimes contended that and ably shown, no two Chancellors have the perpetration of an enormous crime was agreed respecting its constitution; and, not a proof of what they called insanity. Nay, only this, but they have in their separate some philosophers (so called) have argued opinions, with considerable acrimony, criticised each other's judgments. Thus, in the trial that a crime is only a mistake of the judg of the case,Bainbrigge v. Bainbrigge,' Lord 1 "Hansard's Parliamentary Debates, vol.
Campbell, in 1850, distinctly states, "There xvii., p. 92."
Review: Williams on Unsoundness of Mind.
ment, and who would put a man to death the previous history of the particular case, and for a mistake? After all that medical our knowledge of the peculiar characteristics of writers may urge on the vagueness of the the affection under consideration. Let us conlegal doctrines propounded from the Bench, the jury rarely err in coming to a right conclusion on the facts proved before them. Dr. Williams classes mental conditions which originate crime, under the following heads:
1. Insane states, manifested chiefly by delusion or what has been termed mania," in which the intellectual or reasoning powers seem to be those more particularly involved.
2. Insane states in which the exaggeration or perversion of the moral intelligence or affective faculty is that most evident, constituting the "moral mania" of writers, when the intellectual powers are apparently
3. Insane states in which neither the moral nor the intellectual faculty is of necessity inadequate to appreciate the relations of a particular act, whose commission is alone explicable on the admission of an irresistible impulse-described as "impulsive insanity."
The Author then proceeds to the consideration of these several classes of mental disease: monomania; moral insanity; and impulsive insanity. Then in the last Essay he treats, amongst various other topics, of practical responsibility and of lucid intervals. From the statements and observations of the Author on the latter subject, we make the following extracts :
trast those periods of physical and psychical repose. May not the exercises appertaining to either sphere be so far accomplished, that, for the ordinary purposes of life, they prove sufficient? Pending this seemingly healthy state, some cause apparently trivial, or, it may be, considerable, occurs; a convulsion is unexpectedly produced, or a paroxysm of insanity follows. In both cases the predisposition requires but a slight occasion for its development, and in both cases, had the immediate exciting cause been prevented, the same semblance of health might have been maintained. This practical fact must ever be remembered, as showing the great difficulty enveloping our estimate of many cases in which, where insanity had been known to exist, but where its evidences have subsided, acts of a criminal nature ensue. It is true, that in many instances the mental disturbance is of such a decidedly recurrent character, that those glimpses of reason which intervene between each paroxysm are justly regarded as but so many calms, whose occurrence is an occasion for thankfulness, even though their duration be matters of uncertainty. That during such intervals, acts, in every way indicative of perfect sanity, are accomplished, is not denied. It is contended, however, that we are not invariably at liberty, under circumstances of this nature, to infer that the mind is really sound because it is seemingly so; or to, in all cases, hold the individual responsible for actions of a criminal nature which may, in such intervals, be perfected, since the act to be considered may, in itself, have bid condition. It is this latter fact that must been the occasion of developing the latent morguide us in our estimation of such cases, while, "Examination of a patient between the for their more particular appreciation, those geperiods of attack may afford little evidence of neral principles we have already discussed come the mischief at work: a cause capable of act- into operation. We transcribe the observaing on the predisposition occurs, the impetus is tions of Dr. Combe on this point, as expressive aroused, and the acme of the disease results; of the condition of individuals who, having rea period of repose follows, in which it would covered from an attack of insanity, are again be folly to presume, because no active opera- brought under examination. However calm tions were manifest, that their source was not and rational the patient may appear to be the less truly present. Curative measures may during the lucid intervals, as they are called, triumph over such conditions, and health and while enjoying the quietude of domestic follow on the exertions of the physician. The society, or the limited range of a well regulated progress of analogous disease, manifest through asylum, it must not be supposed that he is in mental affections, is even more subtle. In- as perfect possession of his senses as if he had sanity becomes developed, its symptoms sub- never been ill. In ordinary circumstances, and side, apparent rationality is present; a recur-under ordinary excitement, his perceptions may rence of the disturbance follows, again to be be accurate, and his judgment perfectly sound, succeeded by a calm; curative measures ac- but a degree of irritability of brain remains becomplish their end, and the calm becomes per- hind, which renders him unable to withstand petuated. A question thence arises-Are we, any unusual emotion, any sudden provocation, pending the abeyance of morbid manifestations, or any unexpected and pressing emergency. warranted in affirming the presence of disease? Were this not the case, it is manifest that he To this we must, in many cases, afford a posi- would not be more liable to a fresh paroxysm tive reply, since this very abeyance may be the than if he had never been attacked. And the chief characteristics of the disease whose pre-opposite is notoriously the fact, for relapses are sence we infer. How, then, in the absence of always to be dreaded, not only after a lucid inunusual manifestations, are we to find grounds terval, but even after perfect recovery. And it for such an inference? We respond-From is but just as well as proper, to keep this in