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Foreign laws.

when introduced proposes to effect changes in the law, every clause is looked at askance, and it is sure to encounter opposition.

Assuming then the possibility of further codification, the question arises whether its extension is expedient. All the Continental nations have codified their laws, and none of them show any signs of repenting it. On the contrary, most of them are now engaged in remodelling and amplifying their existing codes. In India a good deal of codification has been carried out, and public and professional opinion seems almost unanimous in its favour. The Bills of Exchange Act, 1882, has been adopted by New Zealand, Victoria, New South Wales, South Australia, Queensland, Tasmania, and with slight modifications by Canada.

On doubtful points frequent reference is made in this Edition to American cases* and Continental Codes and writers. In mercantile matters, when the law is uncertain or authority wanting, there is an increasing tendency to refer to foreign Codes and laws in order to see how other nations have solved the difficulty. This is especially the case as regards negotiable instruments, the most cosmopolitan of all contracts. Mr. Justice Story, in his judgment in Swift v. Tyson (16 Peters, 1), gives forcible expression to the principle. He says, “ The law respecting negotiable instruments may be truly declared, in the language of Cicero, adopted by Lord Mansfield in Luke v. Lyde (2 Burr. 887), to be in a great measure, not the law of a single country only, but of the whole commercial world. Non erit lex alia Romæ, alia Athenis, alia nunc, alia post

* In the present Edition no attempt has been made to keep the American cases up to date. They throw little or no light on the construction of a Code ; and they are now so numerous, and conflicting, that for the purpose of showing what American law is reference must be made to American text books, such as Parsons on Bills and Notes or Daniel on Negotiable Instruments.

hac, sed et apud omnes gentes et omni tempore una eademque lex obtinebit.” Lord Blackburn, in a Scotch appeal concerning a cheque, lays down a similar rule. “There are,” he says, “in some cases differences and peculiarities which by the municipal law of each country are grafted on it, but the general rules of the law merchant are the same in all countries.

We constantly in the English Courts, upon the question what is the general law, cite Pothier, and we cite Scotch cases, when they happen to be in point; and so in a Scotch case you would cite English decisions, and cite Pothier or any foreign jurist, provided they bore upon the point."*

An American decision, it is needless to say, is not a binding authority in this country, but, if well reasoned, it is always considered with respect by our Courts. Many of the American judgments are very valuable as expounding and testing the principles of English decisions. An English case there, like an American case here, is only an authority in so far as it appears to be a correct deduction from the general principles of common law and the law merchant which prevail in both countries alike.

When the subject-matter of a section of the Act is dealt with by the French “ Code de Commerce,” or the German “General Exchange Law, 1849,” their respective provisions are compared. If they agree, a mere reference to the corresponding sections is given. If they differ, the points of difference are given in a note. A vast number of the bills circulated in England are foreign bills. It seems useful, therefore, to indicate the main points of divergence which may give rise to a conflict of laws. The French Code is of

* McLean v. Clydesdale Bank (1883), 9 App. Cas. at p. 105.

† See per Cockburn, C.J., in Scaramanga v. Stamp (1880), 5 C. P. D. at p. 303, C. A C.


particular interest. Although enacted more than eighty years ago, no substantial alteration has been made in it by subsequent legislation. For many years it was the model of nearly all the Continental Codes. For instance, the Belgian Code de Commerce of 1872 enacted for Belgium the provisions of the French Code regarding bills and notes, with a few slight modifications borrowed from Germany, and the addition of three or four articles which embodied the result of French judicial decisions on the construction of the Code. Of late years, however, there has been a tendency to adopt the somewhat wider provisions of the German Exchange Law. Until 1883 the Italian Commercial Code was closely modelled on the French, but the new Italian Code which came into force in 1883 has departed from the French model as regards bills and notes, and has substantially adopted the provisions of the German Exchange Law. Again, the Portuguese Code of 1833 was mainly founded on the French Code. But the Code of 1888 in many respects departs from the French model, and has in the main followed the German Exchange Law, though a few provisions seemed to be borrowed from the English Act. I believe the Hungarian Code of 1875, the Scandinavian laws of 1880, the Swiss law of 1881, and the Spanish Code of 1885 have also departed from the French idea and followed the German lead. French law is worthy of attention in another respect. In the absence of English authority, our Courts have, in some instances, consciously taken it as their guide. (See per Parke, B., in Foster v. Dawber, 6 Exch. 852.) The “Code de Commerce,” to a great extent, embodies and enacts the opinions of Pothier, whose authority, says Best, C. J. (in Cox v. Troy, 5 B. & Ald. 481), “is as high as can be had next to the decision of a Court of Justice in this country.” On doubtful points not dealt with by the Code, reference is occasionally made to Pothier, and also to the exhaustive treatise of M. Nouguier (Des Lettres de Change et des Effets de Commerce, 4th ed. 1875), which gives the latest results of French law.

The German General Exchange Law of 1849 (slightly modified, 1869), is important in two respects. First, it is the most elaborate and carefully worked out of the foreign Codes, and it appears to be the model to which the other Continental states (with the exception of France) are now assimilating their laws. Secondly, it is an international and not merely a national Code. All the German states, including Austria, have adopted it, and the terms of its adoption are these : Each state is at liberty to supplement it by additional laws of its own, but such laws are not in any way to contradict or override it. M. Nouguier, in the work above referred to, gives in French the text of the Exchange Law, and also the various supplementary laws passed by the different states.

It would probably be very advantageous to the commercial world if this principle of an International Code could be further extended. The difficulties of carrying it out do not seem insuperable, though, doubtless they would be great. The provisions of such a Code would have to be settled by agreement, and then each state would enact it for its own territory. In the case of England it would probably be necessary to confine its operation to foreign bills, that is to say, to bills drawn or payable abroad. Our law, as regards foreign bills, does not widely diverge from the law of other commercial countries, and it diverges chiefly by allowing greater latitude than is adopted in practice. Occasional reference is also made to the Indian Code, (Act XXVI., of 1881, as amended by Act II. of 1885,) which in substance reproduces the English law as it stood in 1881. In a work like the present, it is thought

it would be waste of space to carry references to foreign laws or authorities any further, but it may be worth while to mention where they can be found.

Borchardt (Vollständige Sammlung der geltenden Wechsel- und Handels Gesetze aller Länder, 1871), col. lects the statutory enactments of all countries relating to Bills of Exchange. Part I. gives a German translation, Part II. the original text. More than forty countries have codified their law on this subject; in fact, some English colonies and the United States seem to be the only civilized nations which have not done so. Since Borchardt's work was published, however, several Continental states have re-cast their laws relating to negotiable instruments. A new Commercial Code has been enacted for the Netherlands, and an official translation of the part relating to negotiable instruments has been published in England. [See Commercial, No. 30, of 1880, C. 2609.] M. Nouguier, in a supplementary chapter to his work on Bills (Des Lettres de Change, 1875), compares the laws of the chief commercial nations with the French Code. The Comité de Législation Étrangère, under the direction of the French Ministry of Justice, are preparing cheap French translations of the various foreign laws relating to commercial matters. Several volumes have already been published with excellent introductions and notes. Having regard to our own insular isolation, I fear it will be long before any English government department undertakes similar useful work. M. Massé's “Droit Commercial et des Gens” is a valuable work on the conflict of lawsespecially as regards bills. The latest American book, I believe, is Daniel on Negotiable Instruments, 1876. Story on Bills of Exchange, and Parsons on Notes and Bills, are also standard American works. Thomson on Bills of Exchange is the standard book on Scotch law, which,

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