« PreviousContinue »
OF THE LAW OF
BILLS OF EXCHANGE,
PROMISSORY NOTES AND CHEQUES.
M. D. CHALMERS, M.A.,
OF THE INNER TEMPLE, BARRISTER-AT-LAW.
JAN !! 79
As far as form goes the present Digest is modelled on the Indian Codes, the main idea of which is as follows. A general proposition is first laid down. Qualifications or less obvious deductions, when of sufficient importance, are next stated in the form of Explanations. Then come the Exceptions, if any. These abstract propositions are illustrated, when necessary, by examples shewing their application to particular states of fact Each general proposition, with its accompanying “explanations" and "exceptions,” forms a separate article. The same plan has been adopted by Sir James Stephen, in his Digests of the Law of Evidence and of the Criminal Law, and by Mr. F. Pollock, in his Digest of the Law of Partnership. As regards the subject of codification generally, and its prospects in this country, I have little or nothing to say. Any reader interested in the matter, will find it fully discussed by the above mentioned authors in the Introductions to the works referred to. Sir James Stephen most certainly cannot be open to the charge of being a mere theorist. He has codified for India, with admirable success, both the Law of Contract and the Law of Evidence, and has shewn that in competent hands like his, codification is not an unpractical dream, but a working and highly beneficial reality. These writers have also pointed out that Digests in the present form may be to some extent helpful in preparing the way for codification at home. In the meantime, I hope the form adopted may be found convenient for a text-book. As regards details of plan I must offer a few words of explanation.
For the most part, provisions applicable to Bills of Exchange are equally applicable to Promissory Notes and Cheques; therefore the term “ Bill" is used in the articles of this Digest as meaning and including Promissory Note and Cheque, as well as Bill of Exchange. When a provision does not apply equally to Notes and Cheques the full expression “Bill of Exchange " is used, and the distinction is pointed out in a note. The provisions peculiar to Promissory Notes and Cheques are collected in two chapters at the end of the book. This plan has been adopted, first, in order to economise space, and secondly in order to give a clearer and more consecutive account of a Bill of Exchange, which is the typical and most important negotiable instrument. As to the second reason, I would refer to the remarks of Mr. Justice Story, in the preface to his work on Bills of Exchange. Subject to the explanation given above, I hope this extensive meaning given to the word “Bill” is justified, and will not lead to confusion. There is to some extent authority for the course pursued. In the Stamp Act, 1870, “ Bill of Exchange" is defined so as to include Cheque, and in the reported cases on cheques the instrument is frequently termed a “Bill,” as indeed for most purposes it is. In the older cases on promissory notes the instrument is called indifferently a Bill or Note.
To save space letters are substituted for names in the Illustrations, and to facilitate reference and comparison the same letter is always used to denote the same party to a Bill or Note. Thus A. is always used for the drawer of a bill ; B. for the drawee or acceptor of a bill or the maker of a note; C. for the payee and first indorser of a bill or note. When a case is quoted, the date is given. This avoids the necessity of referring to more than one report; and where cases are in conflict, it enables the reader to see at a glance which is the most recent and therefore the most authoritative. Where a case directly decides the point it is quoted to establish, the name is given simply; but when it only decides the point by
mplication or is relied on as an analogy, or when it merely contains an obiter dictum on the subject, the name is preceded by the mark cf. (compare).
Anything like a detailed discussion of doubtful cases, or a history of past controversy on points which may now be considered as settled, would be foreign to the purpose of a work like this; but I have added to the ordinary Index of Cases, a list of the more important cases which have been overruled, doubted or explained nominatim, see p. xxvii. The list has no pretension to completeness, but perhaps it may be useful as far as it goes. Several of the articles go beyond the logical limits of a digest of a special subject, inasmuch as they state propositions which apply not only to bills, but to all simple contracts alike. In some few cases of frequent occurrence, this is done in the hope that the book may thus be more useful to men of business, who have not other books of reference at hand. In the majority of cases it is done because doubts have arisen as to whether bills were or were not governed by the ordinary rules. In a Code all such articles would be superseded by a single proposition to the effect that when the contrary is not expressed the ordinary rules of law applicable to simple contracts apply to bills. In an un-authoritative Digest, such a proposition seems merely nugatory.
It is almost needless to point out, that the similarity