XXIV. a discretion as to the laws it will enforce (a), otherwise it CHAPTER The following are instances of the application of the fourth rule, that the English Courts will not regard the revenue laws of other countries (b). REVENUE OTHER DISRE Bills or notes drawn or made in a foreign independent GARDED. state, or at sea, do not require, in order to be valid in this Stamps on country (c), a stamp of the country where they are made or foreign bills. drawn (d)." Since the time of Lord Hardwick," observes Abbott, C.J. (e), "it has been settled, that the Courts of this country will not take notice of the revenue laws of a foreign state. It would be productive of prodigious inconvenience if, in every case in which an instrument was executed in a foreign country, we were to receive in evidence what the law of that country was, in order to ascertain whether the instrument was or was not valid." But bills drawn in England and payable abroad are subject to an English stamp, and tus vili does not exempt a bill in note made abroad from the nicemity of complying with ther Stamp cact when med on here. (←) see Chap. B. If the bill or note were made in any part of the British On Colonial empire, formerly it might require the stamp appropriated by bills. the law of the place (f). By the Stamp Act of 1854, 17 & 18 Vict. c. 83, s. 4 (repealed 1870), every bill purporting to be drawn out of the United Kingdom was, for all the purposes of that Act, to be deemed to be a foreign bill. And now the Stamp Act, 1891, s. 36, contains a similar provision. The following are instances of the application to bills of APPLICATION exchange of the last rule, viz. :--that though the lex loci OF THE LEX (a) See the American authorities, Byles on Bills, 6th American ed. p. 587. (b) See Pellecat v. Angell, 2 C. M. & R. 311. (c) But as to the English stamp on foreign bills, see the Chapter on THE STAMP. (d) Rotch v. Edie, 6 T. R. 425; 3 R. R. 222; Boucher v. Lawson, Rep. temp. Hardwicke, 198 ; Holman v. Johnson, Cowp. 343; Clugas v. Penaluna, 4 T. R. 467; 2 R. R. 442; Code, s. 72 (1) a. FORI TO & R. 190; Wynne v. Jackson, 2 BILLS. (f) Alves v. Hodgson, 7 T. R. (e) James v. Catherwood, 3 D. (K) Bank of Montreal v. Exhibit & Trading Co. 28 TLR 25-2 722. CHAPTER contractus must regulate and interpret the contract, yet that the lex fori must govern the remedy. XXIV. Statutes of Set-off. Power of arrest. Statute of Statutes of Limitation in general affect the remedy only, and not the substance of the contract (g). Therefore, where by the law of the country where the contract was made the plaintiff would have had forty years to bring his action, yet, as he sued in England, it was held, that he must bring his action within six years (h). So, on the other hand, though the payee of a French promissory note must, if he had sued in France, have brought his action there within five years, it was held that he might here bring his action at any time within six years (i). And where by the law of Italy a man must bring an action within fourteen days, yet if the action be brought here, our law as to limitation in time prevails (k). So, the power to set off a cross debt depends on the law of the country where the remedy is sought (). So, though a defendant might not be subject to arrest in the country where the contract was made, yet he was subject to arrest where the law of this country gave the creditor the right to arrest, if the remedy were sought here (m). So, where by the law of the foreign country, a criminal prosecution must be a preliminary to a civil action, the absence of such a previous prosecution is no defence to an action here (n). So, again, the fourth section of the Statute of Frauds enacts, that no action shall be brought on certain agreements (g) Quare, whether that be so where the statute not merely limits the remedy but actually extinguishes the debt. See Huber v. Steiner, 2 Bing. N. C. 202, 211; 2 Scott, 304; 1 Hodges, 206; Don v. Lipman, 5 Cl. & Fin. 1, 16, 17; Story, 2nd ed. 840. In such a case it should seem that the statute is equivalent to a release. The rule as to the application of the Statute of Limitations in America has been held to depend on the law of the State where a note is made, and the length of the residence there (Byles on Bills, 6th American ed. p. 595); but the English rule is doubtless the true one. See Alvarez de la Rosa v. Prieto, 33 L. J., C. P. 262. (h) British Linen Company v. Drummond, 10 B. & C. 903; 34 R. R. 595. (i) Huber v. Steiner, 2 Bing. N. C. 202; 2 Scott,304; 1 Hodges, 206; Harris v. Quine, L. R., 4 Q. B. 653. See Don v. Lipman, 5 Cl. & Fin. 1, 15, 16. (k) Casanova v. Meier, 1 T. L. R. 245 Harris v. Quine, L. R., 4 Q. B. 653. (1) Byleson Bills, 6th American ed. p. 596. (m) De la Vega v. Vianna, 1 B. & Ad. 284: 35 R. R. 298; and see Shaw v. Harvey, M. & M. 526; 31 R. R. 755. (n) Scott v. Lord Seymour, 31 L. J., Exch. 457. unless they are in writing. It has been held that this enactment does not affect the solemnities of the contract, but only the rules of procedure: and, therefore, though a parol contract, within the fourth section of the Statute of Frauds, be made in France, and be valid there, yet that an action on it will not lie in England (0). The protest and notice of dishonour are parcel of the contract, and not incidents of the remedy for the breach of it. They must, therefore, be regulated by the law of the country where the bill is payable (p), or where the contract is made, or where the notice is given, and not solely by the law of the country where the remedy is sought. CHAPTER Protest and notice of dishonour. When foreign law is relied on in pleading, it is proper, Pleading first, to state what the foreign law is, and then to allege the foreign law. facts, bringing the case within that foreign law (q). It will in general be assumed, that the law of a foreign Burthen of country is the same as the law of this country in respect of proof. negotiable instruments till the contrary be proved, the burden of proof lying on the party alleging such difference(?). Therefore, if a promissory note made in Scotland (8) be sued upon in this country, and there were any difference in the law of the two countries favourable to the defendant, it lay upon the defendant to prove that difference (†). When a bill drawn out of is payable in the United Foreign Kingdom, and the sum is expressed in foreign money, the currency. amount, unless otherwise stipulated, shall be calculated according to the rate of exchange for sight drafts at the place of payment on the day the bill is payable (u). (0) Leroux v. Browne, 12 C. B. 801. (p) Rothschild v. Currie, 1 Q. B. 43. See Rothschild v. Barnes, Q. B. 1842; Code, s. 72 (3). (q) Benham v. Lord Mornington, 3 C. B. 133; Jacobs v. Credit Lyonnais, 12 Q. B. D. 589. (r) Nouvelle Banque de L'Union v. Ayton, 7 T. L. R. 377. () As to the law of Scotland, see 19 & 20 Vict. c. 60. Now the Code extends to all the United Kingdom. (t) Brown v. Gracey, D. & R. N. P. C. 41, n., per Abbott, C.J. ; 25 R. R. 781, n.; but see De La Chaumette v. Bank of England, 2 B. & Ad. 385; and Gibbs v. Fremont, 9 Ex. 31, supra. As to the mode of ascertaining, proving and applying the law of foreign countries, see 24 Vict. c. 11. (u) Code, s. 72 (4). For ad valorem duty, see Stamp Act, sect. 6, ante, p. 118, to be calculated as of day of date of instrument, not of maturity. 390 CHAPTER Title of the finder. Proper course for the loser to take. THOUGH the finder of a lost bill or note acquires no property in it, so as, on the one hand, to enable him to defend an action of trover brought by the rightful owner, or, on the other, to sue the acceptor or maker, yet we have already seen that if the finder transfer a lost bill or note, which may pass by delivery only, his transferee, provided he took it honestly, is entitled both to retain the instrument against the loser, and to compel payment from the parties liable thereon. In the case of a cheque marked "not negotiable," as before stated (a), a transferee only takes his transferor's title, and hence this danger is averted. Let us now inquire what steps the loser should take. And, in the first place, it is settled that if bills or notes be lost or stolen out of letters put into the post office, no action lies against the Postmaster-General. "The case of the Postmaster," says Lord Mansfield, "is in no circumstance. whatever similar to that of a common carrier; but he is like all other public officers, such as the Lords Commissioners of the Treasury, the Commissioners of the Customs and Excise, the Auditors of the Exchequer, &c.; who were (a) Ante, p. 30. In a recent case, 15 T. L. R. 433, a man who had constant dealings with a bank, though he kept no balance, was held to be a 66 customer," so as to entitle the bank to the protection of Code, s. 82. XXV. never thought liable for any negligence or misconduct of CHAPTER the inferior officers in their several departments " (b). But a deputy postmaster is liable for neglect in not duly delivering letters (c). It is advisable that the loser should immediately give Notice of notice of the loss to the parties liable on the bill; for they loss. will thereby be prevented from taking it up without due inquiry. Public advertisement of the loss should also be given; for if any person whosoever discounts it with notice of the loss, that will be such strong evidence of fraud that he can acquire no property in it (d). But public notice is of itself neither on the one hand sufficient nor on the other indispensable. To operate at all it must be brought home to the party to be affected by it (e). We have already seen that, if the bill be transferable (b) Whitfield v. Lord Le Despencer, Cowp. 754; Lane v. Cotton, 1 Salk. 17. () Rowning v. Goodchild, 3 Wils. 443; 2 W. Bl. 906; 5 Burr. 2716; Hordern v. Dalton, 1 C. & P. 181. The (d) A public notification of the loss is not only advisable to prevent the transfer of lost or stolen bills or notes into the hands of bona fide holders, but there are cases in which it was formerly considered essential to the plaintiff's right to recover of those who might have taken the instrument. See the observations of Best, C.J., in Snow v. Peacock, 3 Bing. 411; 11 Moo. 286. law formerly was, that if a man took a lost bill or note negligently, he acquired no title against the rightful owner; but if the loser had neglected to publish his loss, and the receiver took the note, not dishonestly, but negligently, then the negligence of the loser equalled the negligence of the receiver, and potior erat conditio possidentis. Snow v. Peacock, 3 Bing. 411; 11 Moo. 284; Strange v. Wigney, 6 Bing. 677; 4 M. & P. 470. Thus, where the plaintiff was robbed of his pocket-book, containing an indorsed bill, and then advertised the pocket-book, saying nothing of the bill, but On the contrary, stating in the advertisement that the contents But now honest acquisition (e) See Byles on Bills, 6th American ed. p. 557.^ |