NEGOTIABLE INSTRUMENTS TABLE Showing how the sections of the Acts consolidated have been dealt with. S. 1. ACT No. XLII., 1901. An Act to consolidate enactments relating to remedies on bills of exchange and other negotiable instruments and orders for the payment of money. [Assented to, 7th November, 1901.] BE E it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows:- 1. This Act may be cited as the “Negotiable Instruments Short title. Procedure Act, 1901." 2. The Acts mentioned in the Schedule to this Act, to the Repeal. extent therein expressed, are hereby repealed. 3. In this Act " Judge means a Judge of the Court in which the action is brought. Schedule. Interpretation. Plea to be verified by 4. No plea shall be admissible in any action to a count on any dishonoured bill, note, cheque, or other order for the payment affidavit. of money without an affidavit (a) of the truth of such plea; or (b) of such facts as a Judge may under the circumstances deem sufficient in that behalf. 20 Vic. No. 30, s. 1. 22 Vic No.. 3, s. 1. S. 4. 20 Vic. No. 30, s. 1. Payment into Court in lieu of affidavit. Cf. R. 62 (post). Without an affidavit. Where in an action on a promissory note, the defendant filed a plea without an affidavit, and the plaintiff allowed the time to file a replication to elapse, and subsequently signed judgment treating the plea as a nullity, judgment was set aside on terms: Wright v. Evans, (1884) 1 W.N. 61. In the case of the Mont de Piete Co. v. Bennett, (1890) 7 W.N. 45, it was decided that the Act 20 Vic. No. 30, which is consolidated by this Act, applies to actions in the District Court, and that a notice of special defence on equitable grounds to an action on a promissory note is a plea within the Act, and must be verified by affidavit when filed. And in that case Windeyer, J., said "I think it would be better that all actions on bills and notes should be brought in this (the Supreme) Court, and I always grant applications in such actions for certificates for costs.' A plea to an action on a promissory note verified by affidavit which merely states "the several statements set forth and contained in the plea are respectively true in substance and in fact according to the best of my knowledge" held not sufficient: Commercial Bank of Australia, Ltd. v. McRae, (1893) 10 W.N. 157; see also Israel v. Airey, (1895) 11 W.N. 152, where in an action on a promissory note and a cheque the defendant pleaded that he was not the maker of the note and that plaintiff was not the bearer of the cheque, and the affidavit simply stated that the pleas were true “to the best of his knowledge and belief”; this was held under the circumstances insufficient, and the pleas struck out. In Robert Reid & Co. v. McElhone, (1899) 16 W.N. 85, the defendant in an action on a promissory note, wishing to withdraw a plea in abatement, which he could not support, was given leave to file a plea in bar without an affidavit setting out what the plea was or an affidavit of merits, on condition that there was an affidavit filed to the satisfaction of the Judge verifying the plea. Of the truth of the plea.-The Court has no power to strike out a plea to a promissory note, solely on the ground that it is false, even though it be clearly shown to be false, and in direct contravention of an express agreement to pay the note: see Bubb v. Little, (1893) 9 W.N. 193; as this would be to take away the defendant's right to have the issue tried by a jury. Walker v. Bailey, (1884) 1 W.N. 71; and Hornsey v. Forster, (1889) 5 W.N. 142, would not now be followed (see notes to s. 61, C.L.P. Act, ante). But where a plea is plainly demurrable it may be struck out: Hudson Bros. v. Greta Collieries, (1894) 10 W.N. 120. 5. Any plea to any such count filed without such affidavit may be treated as a nullity. Nullity. If a plea be a nullity, the proper course is to sign judgment, and not to apply to the Court to strike it out: Savage v. Sinclair, (1897) 14 W.N. 114; see also Wright v. Evans, (1884) 1 W.N. 61. 6. By leave of a Judge, instead of such affidavit, the defendant may pay into Court the amount of the plaintiff's claim or so 20 Vic. No. 30, much thereof as the Judge shall appoint. s. 2. Further time to plead may be given. Ibid. s. 3. Actions on By the Common Law Procedure Act, s. 80 (ante) money may be paid into Court in all actions (except malicious arrest or prosecution or debauching plaintiff's daughter or servant). 7. Upon application on behalf of any defedannt who has been absent from his usual place of business or abode at the time of service of the summons, a Judge may give such further time for pleading as he deems reasonable. See also RR. 56, 301 (post). 8. In any action in the Supreme Court founded upon a negotiable instrument, the Court or a Judge may order that the loss of such instrument shall not be set up, provided an indemnity is given to the satisfaction of the Court or Judge or the prothonotary against the claims of any other person upon such instrument. Whether a "destroyed bill" is not a "lost" bill, quære: see Ex parte William Walker, (1892) 9 W.N. 1. The order is made on the application of the plaintiff. In Joseph v. Keys, (1896) 12 W.N. 174, an application under s. 53 of the C.L.P. Act, 1857, (now this section) by the defendant in an action on a lost cheque, calling on the plaintiff to show cause why he should not give an indemnity approved of by the Prothonotary, was refused. The defendant's remedy is to plead the loss, and then he plaintiff may apply under the section. The loss of a negotiable bill, given on account of a debt, is an answer to an action for the debt, as well as to one on the bill: Crowe v. Clay, 9 Exch. 604; aliter, if the bill or note is not negotiable: Wain v. Bailey, 10 Ad. & E. 606. The defence can only be raised under a plea alleging the fact : Charnley v. Grundy, 14 C.B. 608. Such a plea may, therefore, now be struck out, on an indemnity being given, as to which vide infra. But though the holder of a lost bill was in such case without remedy at law: Hansard v. Robinson, 7 B. & C. 90, in England, the Court of Chancery was in the habit of giving him relief, on his indemnifying the person liable on the bill against the claims of all other persons: Terese v. Geray, Finch, 301; Walmsley v. Child, 1 Ves. sen. 345. This, however, was only done in the case of foreign bills, and to extend the remedy to inland bills, the stat. 9 & 10 Will. 3, c. 17, s. 3, was passed: Walmsley v. Child, supra, which enacted that "in case any such inland bill or bills of exchange shall happen to be lost or miscarried within the time before limited for payment of the same, then the drawer of the said bill or bills is and shall be obliged to give another bill or bills of the same tenor with those first given, the person or persons to whom they are and shall be so delivered giving security, if demanded, to the said drawer, to indemnify him against all persons whatsoever, in case the said bill or bills of exchange so alleged to be lost or miscarried, shall be found again." Such" includes all inland bills of exchange of the sum of £5 and upwards, payable at a certain number of days after the date thereof (sec. 1). The stat. 3 & 4 Ann. c. 9, having given the like remedies on promissory notes as were then in use on inland bills, may be considered as having extended this section to the makers of promissory notes of the like description: 2 Camp. 215, n. To obtain the benefit of this statute, it was, however, still necessary to proceed in equity, for it was held that the common law courts had no jurisdiction, because they were not able to enforce the giving of a new bill or qualified to judge of the sufficiency of an indemnity: Davies v. Dodd (in Equity), 4 Price, 176; S.C. (at law), 4 Taunt. 176; Ex parte Greenway, 6 Ves. 812. As to the jurisdiction exercised by the courts of equity in the case of lost instruments, see Byles on Bills, 10th ed., pp. 375, 376, and cases there cited. This present section obviates the difficulty raised by the construction put on the former statute by substituting the jurisdiction of a court of common law for that of a court of equity, and the court is to determine what is a proper indemnity according to the old practice in equity: King v. Zimmerman, L.R. 6 C.P. 466. Where the plaintiff has not offered an indemnity before action, the court will order the plea setting up the loss to be struck out only on the terms of the plaintiff paying the defendant's costs: Ibid.; Redmayne v. Burton, 2 L.T., N.S. 324, May, 1860, per Willes, J., at chambers. The section will apply whether the loss has occurred before or after the commencement of the action. Bank notes are negotiable instruments within the section: M'Donnell v. Murray, 9 Ir. Common Law Rep. 495. So also are half bank-notes: Redmayne v. Burton, supra. See also Conflans Stone Quarry Co. v. Parker, L.R. 3 C.P. 1. S. 8. S. 1. OATHS ACT 1900. COMMISSIONER'S MEMORANDUM AND CERTIFICATE. THIS Bill consolidates the whole or parts of ten statutes. Clause 13. The sections mentioned in the margin to this clause followed one upon another, in different statutes, each ignoring its predecessors, and repeating substantially the same provisions with small differences. This clause amalgamates them without reproducing all the variations. Clause 20 (2) (c). "Legislative Council," which was the only legislative body at the time the 9 Vic. No. 9 was passed, has been changed to " either House of Parliament." I certify that, save as aforesaid, this Bill solely consolidates and in no way alters, adds to, or amends the law as contained in the Acts therein consolidated. *22 Vic. No. 7, s. 1, and 22 Vic. No. 18, s. 48, extend the provisions of this section to all Courts. |