« PreviousContinue »
Repeal of enactments.
The Hon. Whitley Stokes, in moving the passing of the bill on the 7th December 1881, spoke as follows on this section, "of these, the most important was in the second paragraph "of Sec. 1. That paragraph saved local usages relating to "hundis and other instruments in an oriental language. But "in order to facilitate the assimilation of the practice of native "Shroffs to that of European merchants, the Law Commissioners recommended the insertion of a proviso, that such usages might "be excluded by any words in the body of the instrument, indi"cating an intention that the legal relation of the parties should "be governed by the proposed Act. He believed that this pro"viso (which had as well as he remembered, been suggested by "the practice of the Bank of Bengal, for many years), would "have the most beneficial results in ultimately rendering the "custom of Shroffs as to hundis, identical with that of European "bankers as to negotiable paper. An eminent critic (Sir James Stephen) of the Bill, said that he "could not see why uniformity “of practice is desirable." The reason was, that it prevented "uncertainty and litigation as to what had been called the most "Cosmopolitan of all contracts, and that it facilitated dealings, "not only between English and native merchants, but between "native merchants in different parts of India. The practical
working of a system of credit was made safer, and more bene“ficial, when the bills of exchange, under which a banker or "merchant were responsible, were governed by precisely the same legal conditions as those on which he was a creditor, and "in reference to which the others were issued or accepted."
On and from that day the enactments specified
"Banker" includes also persons or a corporation
Notary Public" includes also any person appointed by the Governor-General in Council to perform the functions of a Notary Public under this Act.
Banker. This definition is taken from Sec. 3 of the English
Clauses Act, and also definition of "banker" in the Stamp Act2 which includes a bank or any person acting as a banker.)
Notary Public.-This describes what is included in the term "Notary Public," but no definition is given of what a "Notary Public" is, or what his functions are. We must therefore turn to English Law and Text books to ascertain these. The work of most universally recognized authority on the office and practice of a "Notary Public" of England is Brooke's, the last edition of which by Dr. Leoni Levi is the one from which I have taken my references. From it we learn that notaries are most ancient officers, and were known in England before the conquest. The Acts regulating the appointment and qualifications of persons to be notaries in England are, 41 Geo. III, c. 79, 3 and 4 Will. IV, c. 70, and 6 and 7 Vict. c. 90. By 6 Geo. IV, c. 87, s. 20 British Consuls at foreign parts or places and by 18 and 19 Vict. c. 42, British Diplomatic and Consular Agents abroad, are empowered to do Notarial Acts. The Select Committee in their report, dated 4th September 1877, on the draft bill say "this "section has been inserted, as notaries are seldom found in the "Mofussil." Except in the City of London, the persons most generally found exercising the profession of Notaries are Attorneys or Solicitors. Brooke says of their duties3 Notaries in England are employed in noting and protesting Bills of Exchange, preparing acts of honor, or as they are frequently called, acts for honor, authenticating and certifying examined copies of documents, preparing and attesting various instruments going abroad, and granting and solemnizing all other Notarial Acts." Noting and extending protests by masters of ships also forms part of their duties. By the Indian Evidence Act Courts shall take Judicial notice of the seals of Notaries Public, and by the present Act, upon proof of the protest, the Court shall presume the dishonor of the instrument protested. This section, it is to be observed, only authorizes the Governor-General to appoint persons to perform the functions of Notaries Public under this Act, not to appoint them Notaries Public; and persons so appointed will not therefore, be qualified to do any Notarial Acts other than those which have reference to negotiable instruments as defined in this Act; and as no provision is made in the Act
1 Act I of 1868, s. 2 (3).
2 Act I of 1879, s. 3 (1), (app). • 4th ed., p. 18.
4 Act I of 1872, s. 57 (6).
5 Sec. 119.
for the use of a seal by a person so appointed, nor any provision requiring protests or Acts of honor under Chapters IX and XI to be sealed, no presumption will be made by the Court as to protests made by such persons, and they like all other documents will have to be proved. In England when there is not a Notary in or near the place where the bill is payable, the protest shall, by Act 9 and 10, Will. III, c. 17 be made by a substantial person of the place, in the presence of two or more credible witnesses, and if the bill be a foreign one, then by such a person, but witnesses are not usual. Brooke suggests, that it should be a householder who is well known, and of such a profession as to enable the holder to meet with him easily afterwards, such as a Banker, Attorney at Law, Merchant, &c.
14th ed., p. 87.
OF NOTES, BILLS AND CHEQUES.
4. A "promissory note" is an instrument in "Promissory writing (not being a banknote or a currency-note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument.
A signs instruments in the following terms :
(a). "I promise to pay B or order Rs. 500."
(b). "I acknowledge myself to be indebted to B in Rs. 1,000,
to be paid on demand, for value received."
"Mr. B, IO U Rs. 1,000."1
"I promise to pay B Rs. 500 and all other sums which shall be due to him."2
(e). "I promise to pay B Rs. 500, first deducting thereout any money which he may owe me.
(f). "I promise to pay B Rs. 500 seven days after my marriage with C."4
(g). "I promise to pay B Rs. 500 on D's death, provided D leaves me enough to pay that sum."5
(h). "I promise to pay B. Rs. 500 and to deliver to him black horse on 1st January next.”6
The instruments respectively marked (a) and (b) are promis
1 Fesenmayer v. Adcock, 16 M. & W. 449.
2 Smith v. Nightingale, 2 Stark. 375.
3 Davies v. Wilkinson, 10 A. & E. 98; S. C. 2 P. & D. 256.
4 Beardsley v. Baldwin, 2 Stra. 1151.
Roberts v. Peake, 1 Burr. 323. 6 Martin v. Chantrey, 2 Stra. 1271.
The instruments respectively marked (c), (d), (e), (f), (g) and (h) are not promissory notes.
Promissory notes are said to have become prevalent in England, as mercantile instruments during the latter half of the 17th century, and according to Lord Holt, were the invention of the goldsmiths, after the merchants, owing to Charles I., having in 1640, taken possession of a large amount of funds, which had been lodged by them in the Mint, lost confidence in the Royal Mint as a place of deposit.
Bills of Exchange, had however, been recognized as negotiable at law long previously, and are said to owe their introduction into use among European communities, to the Italian merchants, and were known as early as the 14th century, though the first case in the English reports, that of Martin v. Boure, was decided by the Exchequer Chamber, only in the reign of James I. They owe their origin and peculiar properties to the Law Merchant. Promissory notes to the Stat. 3 & 4, Anne c. 9, of which the preamble is "An Act for giving like remedy upon Promissory Notes as is now used upon Bills of Exchange."
The gist of a Promissory note is, that it must be an unconditional written promise, to pay a certain sum of money, to a certain person, at a certain time, and be signed by the maker or person promising; it must be for the payment of money only.
Writing. What is writing for the purposes of the act has not been defined, but as by the Stamp Act1 all instruments referred to in this Act, require to be stamped, the definition to be found there, will I think be a safe one to adopt, the more especially as, in the statement of the object and reasons for the Bill, sent out by the Indian Law Commissioners, it is said "the Bill will be found to agree generally with the law of negotiable paper in England," and again in the Honorable Mr. Massey's speech, on introducing the Bill into the Governor General's Council on 13th December 1867, where he says, "The bill for the most part is an adaptation of the English Law of Bills of Exchange, promissory notes and cheques." The section quoted defines "written" and 'writing" to include every mode in which, words or figures can be expressed upon paper, and "paper" includes vellum, parchment, or any other material, on which an instrument may be written.
3 Sec. 3, cl. (14).
1 I of 1879.
2 Sec. 3, cl. (21).