The Legal Observer,

AND

SOLICITORS' JOURNAL.

SATURDAY, JULY 8, 1854.

SUMMARY EXECUTION ON BILLS mercial community, as in its consequences

OF EXCHANGE.

to the legal practitioner.

There are, therefore, two points of view in which to consider this question:-1st, THREE months ago-namely, on the 8th the interest of the public; and 2nd, the inApril, immediately after this important al- terest of the practitioner in carrying the teration in the Law was proposed by Lord measure into effect. Looking at the preBrougham-we submitted to our readers a vailing spirit of reform it would be manivery full statement of the clauses in the festly in vain to appeal to Parliament in Bill, with the explanatory observations of behalf of the Profession, unless it can be its promoters. It does not appear that any shown that the good of the public is at objection was at first taken to the measure, stake. We apprehend that any petition either in town or country, upon public or against the measure from the Attorneys, professional grounds. The Bill comprised founded on the anticipated injury to thema clause authorising all attorneys and solicitors of the Superior Courts to act as notaries for the purposes of the Act; but in the Select Committee to which the Bill was referred, this provision was struck out, in consequence of the opposition of a very large body of the bankers and merchants of London. The Bill, as altered by the Select Committee, was re-printed on the 18th May, and the 20th clause of the amended Bill expressly provided that the Act should not interfere with any existing remedy of the holder of a bill or note, either at Law or in Equity.

selves, would be altogether ineffectual. We should have the Honourable Mr. Bouverie again urging, "That the fact of the Bill being opposed by the attorneys was the strongest argument in its favour." Let us, therefore, in the first place investigate the public grounds on which its promoters endeavour to support their proposition.

The argument in favour of the principle adopted by the Law of Scotland, and which it is thus proposed to extend to England, is briefly as follows:

"That bills of exchange and promissory notes ought not to be treated as mere contracts for the payment of money, enforceable only by action, in which the onus probandi on every point rests with the holder, but as securities which are certainly to be paid when due."

The Bill came down to the House of Commons on the 2nd June, and the attention of the Profession was afterwards called to the injury likely to be inflicted by limiting the protesting dishonoured bills to notaries public, particularly in country dis- And it is contended that the advantage tricts. But until within the few last days, arising from this rule of law is, that bills it does not appear that any objection was and notes are circulated as money, and the raised to the principle of the Bill as it may only point to be considered by the person be supposed to affect the public at large. receiving them is, whether the credit of the The time, however, seems to have arrived parties is satisfactory. It is held that when the subject must be fully discussed when a man puts his name to a bill as with reference as well to the alleged evils drawer, acceptor, or indorser, he advisedly which the Bill proposes to remove, and the pledges his credit to the fullest extent that benefits it seeks to confer on the com- he will pay it. Consequently under the VOL. XLVIII. No. 1,374.

L

174

Summary Execution on Bills of Exchange.

Scotch "summary diligence" system, it follows that payment may be enforced by speedy process, unless the party called upon to pay can show a sufficient defence.

debt and costs; and in many instances he may be unable to procure such security. This will often operate as a denial of justice.

5th. That such speedy execution against all parties to a bill will work great injustice

whose property may be taken in execution. The credit of the debtor is pledged to all alike, and it is an unfair preference to enable a bill holder to sweep away, it may be, the whole of the debtor's assets, or to sacrifice a large part of them by a premature sale under an execution.

Now, in opposition to this view, it is contended that since the recent amendments to the other creditors of the defendant in the procedure of the Common Law Courts, there is quite sufficient of "summary diligence" or speedy execution for any safe or useful purpose. Judgment may be obtained in eight days from the service of the writ of summons, and execution may be issued in another eight days, at a less expense in the Superior Courts than in the 6th. That if the Act should pass into a County Courts. If this time be too long, law, traders, in order to prevent an undue it may be shortened, without resorting to a preference where the hostile holder of a new mode of procedure which cannot safely bill refuses to grant time, will be driven to be cheaper, and probably will be dearer, for immediate bankruptcy, although they might the fees must be adequate to pay the salary be able to maintain their position if time of the new registrar and the expense of his were allowed. establishment.

7th. That the harshness of the law will often induce debtors to resort to unfair means for the purpose of saving themselves or their other creditors from what they may deem oppressive consequences.

8th. That there will be great danger of perverting the proposed summary proceedings to fraudulent purposes by collusion between debtors and fictitious creditors, for a dishonest debtor might obtain an extensive credit, avoiding generally the acceptance of bills, and enable a few fictitious creditors to register their bills and take precedence of the bona fide creditors.

We are informed, moreover, that a large body of merchants, manufacturers, and traders of London are now coming forward to oppose the Bill, because they are of opinion that six days is too short a time to place a debtor within the absolute power of an execution against his body or goods by a hostile creditor. We have just been put into possession of the substance of a petition from the London Association for the Protection of Trade, consisting of several thousand members of the mercantile, manufacfacturing, and trading classes; and they represent that the Bill will be prejudicial to the interests, both of debtors and creditors. Their objections may be thus summed up: 1st. That the proposed enactments will operate with great severity and oppression These reasons in behalf of the trade and on small traders whose means of meeting commerce of the country evidently deserve engagements depend on their customers' the most serious consideration. The petipunctuality, and their general business tioners object to the Bill in toto. We proceed next to consider the question

returns.

9th. That the effect of the bill will probably be, largely to diminish the issue of bills of exchange, and thereby lessen the facilities of carrying on trade.

2nd. That a trader who may have in- as it bears on the rights and privileges of dorsed an acceptance, and from the default the practitioners in the Superior Courts. of others is unable to meet it, can under Now, inasmuch as this new business of the present law obtain time at a moderate noting and protesting bills for the purpose expense, and in the interval may be enabled to find the means of payment.

of registration must be done by a legal agent, it had better be confided to one than 3rd. That whatever may be the case with divided between two classes of practitioners. regard to the acceptor, it is unjust to sub- In London none of the notaries (with, we ject the drawer, and still more the indorser, believe, two exceptions only) are attorneys; of a bill to immediate execution,-making and after they have noted and protested the no allowance for unavoidable accident or bill, it must be handed over to an attorney illness or death of the parties primarily of the Court of Common Pleas to get reliable. gistered and procure the order of a Judge. 4th. That where a trader conceives he As the attorney can readily perform the has a defence either wholly or partially, it whole duty, and the notary cannot, why is a great hardship to shut out such de- should two persons be employed? fence, unless he can find security for the very much like the practice which prevailed

It is

Repeal of Usury Laws' Bill.-Court of Chancery, County Palatine of Lancaster Bill. 175

in the Courts of Law and Equity when a On the whole, however, we can discern clerk in Court must be employed as well no necessity for this new law. The recent as an attorney or solicitor; or, as still pre-alterations in the mode of proceeding, the vails in the Ecclesiastical Courts, where a sufficient rapidity of those proceedings, and solicitor prepares the will, but a proctor the moderation of the expense, render any must prove it, and then it comes back to change uncalled for; and we trust that the the solicitor to get it construed by the objections on public grounds will prevail and Judges of Westminster Hall. that the Bill will be rejected altogether.

REPEAL OF USURY LAWS' BILL.

It is not to be wondered at that the bankers in London, who are in daily communication with their notaries, prefer that their mode of business should not be disturbed; but it must be recollected that we It is proposed by section 1 of this Bill, to are now dealing with unpaid bills on which repeal the whole of the following Acts :-37 legal proceedings must be taken; and which Hen. 8, c. 9; 13 Eliz. c. 8; 21 Jac. 1, c. 17; are now intrusted to the attorneys of the & 14 Vict. c. 56; 14 Jac. 6, c. 225 (Scotch); 12 Car. 2, c. 13; 12 Anne, Stat. 2, c. 16; 13 holders. It seems reasonable, therefore, 15 Jac. 6, c. 251 (Scotch); 23 Jac. 6, c. 28 that if for the public advantage the mode (Scotch); 10 Car. 1, Sess. 2, c. 22 (Irish); of proceeding should be changed, the duty 2 Anne, c. 16 (Irish); 8 Geo. 1, c. 13 (Irish); should be performed by the attorney and 5 Geo. 2, c. 7 (Irish); together with so much not the notary. At present the mass of of the 3 Car. 1, c. 4, s. 5, as makes perpetual inland bills are noted only, not protested, the 21 Jac. 1, c. 17, so much of the 13 Car. 2, and returned by the banker to his customer. and so much of the 5 & 6 Wm. 4, c. 41, as Stat. 1, c. 14, as confirms the 12 Car. 2, c. 13; The notary will retain all his ordinary busi-relates to securities given for considerations ness, and cannot be entitled to the advan- arising out of usurious transactions. tage of the new course of proceeding which Section 2 provides, that nothing contained is to be substituted for that which is now performed by the attorney. It clearly should be given to the latter in return for that of which he is deprived.

With the country attorney, however, the case is different. The notaries in the country are in general attorneys, and if the holder of a dishonoured bill is compelled to resort to a notary for the first step towards registration, the holder may leave him to carry forward the rest of the proceeding, instead of employing his usual attorney, and thus the latter may be frequently prejudiced in his practice.

It seems necessary, therefore, that if the Bill is to pass, the proper amendments should be made to remove this objection, and that at all events the attorneys and solicitors practising beyond 10 miles from London should be expressly authorised for the purposes of the Act, to note and protest bills which are intended to be registered. They of course will not interfere with other notarial business, especially in the sea-ports where notaries are extensively engaged in shipping transactions.

With regard also to bills which have to be given in evidence in foreign Courts, it appears that the protests of the regular notaries public are alone receivable, and, consequently, bills or notes which may probably

have to be enforced abroad should be sent to a general notary, instead of an attorney acting under the special provisions of the

Statute.

in the Act shall prejudice or affect the rights or remedies, or diminish or alter the liabilities of any person in respect of any act done previously to the passing of the Act; and section 3 proposes to enact, that where interest is now for payment of the legal or current rate of inpayable upon any contract, express or implied, terest, or where upon any debt or sum of money interest is now payable by any rule of law, the same rate of interest shall be recoverable as if this Act had not been passed.

COURT OF CHANCERY, COUNTY
PALATINE OF LANCASTER BILL.

THE Chancellor of the Duchy and the Lords Justices of the Court of Appeal in Chancery shall form the Court of Appeal in Chancery of the County Palatine; (s. 1).

Áfter the commencement of Act the jurisdiction of the Court of Chancery of the County Palatine and in matters of appeal therefrom now exercised by the Chancellor alone or along with the Judges of assize shall be exercised by the Court of Appeal; (s. 2).

The Court of Appeal may direct that any cause, interlocutory application, or other matter have as full jurisdiction over all matters in the shall be heard originally before it, and shall Court of Chancery of the County Palatine as it has over matters depending in the Court of Chancery; (s. 3).

be exercised by one Lord Justice and the The jurisdiction of the Court of Appeal may both Justices sitting apart from the Chancellor Chancellor of the Duchy sitting together or by of the Duchy: provided that the Chancellor

Court of Chancery, County Palatine of Lancaster Bill.

Letters Patent for Inventions' Bill.-Differences in the Mercantile Laws.

THIS Bill (which is to be construed as one Act with the Patent Law Amendment Act, 1852) proposes to enact that the Lord Chancellor may seal letters patent at any time, whe-six months.

DIFFERENCES IN THE MERCANTILE LAWS OF ENGLAND AND IRELAND FROM THOSE OF SCOTLAND.

THE proposed assimilation of the Law of England, in regard to bills of exchange and promissory notes, with that of Scotland, being now under the consideration of the Legislature, it may be useful to compare the two systems as set forth by the Mercantile Law Commissioners in their paper of questions which has been sent to the several Law Societies :

8. In general, married women cannot be 8. A married woman, whose husband has parties to bills or notes, so as to sue, or be left Scotland, carrying on business apart from sued upon them. him, may become a party to bills or notes in