« 이전계속 »
between the Indian Codes and a Digest like the present is merely resemblance in form. There all analogy ends. In a Code the subject in hand is treated completely and finally. A Code states methodically the law as the legislature is of opinion that it ought to be. This Digest is an attempt to state methodically the law as it is. In a Code, propositions and illustrations are alike authoritative. In this Digest, the illustrations taken from decided cases are alone authoritative. The general propositions are only entitled to weight in so far as they are complete and legitimate inductions from decided cases which are unquestioned law. A general proposition, supported by reference to cases, merely amounts to a verifiable hypothesis as to what the law is. In the theory of English law, there exists in nubibus a complete set of principles applicable to every conceivable state of facts that can arise. Theoretically the judges do not make law. They only interpret it. They are merely the conductors by which the principle is brought down from the clouds and made available to men. Practically, however, their functions are frequently and of necessity legislative. If a wide subject be investigated systematically, four states of the law will be found to exist. First, the law on a given point may be reasonably certain. All authority, or the great weight of authority, may be in favour of a given proposition. Secondly, a proposition on a given point can only be stated as probably holding good. For instance, it may rest merely on unchallenged obiter dicta, or there may be a decision in favour of it, and weighty obiter dicta opposed to it. Thirdly, the law on a given point may be uncertain. Decisions may be in direct conflict, or again there may be a decision in point which has never been directly questioned, but the ratio decidendi of which seems entirely opposed to the principle of later cases. Fourthly, there may be an entire absence of authority on a given question. Such being the state of the materials available for forming a Digest, it is clear that if the subject is to be treated methodically, many propositions can only be stated tentatively. Many of the articles, therefore, are qualified with a (probably) or a (perhaps), and the reason of the qualification is then stated in a note.
On doubtful points frequent reference is made 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 commercial world. Non erit lex alia Romæ, alia Athenis, alia nunc alia post hac, sed et apud omnes gentes et omni tempore una eademque lex obtinebit.”
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 an article of this Digest is dealt with by the French Code de Commerce,' or the
German General Exchange Law, 1849,' their respective provisions are compåred. 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 important, as it forms the basis of most of the continental Codes : Belgium and Italy, for instance, have adopted it almost in its entirety. 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 and 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. 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 made to the Indian Draft Code. For some reason I am not aware of it has never been enacted. It is to be found in the 3rd Report of the Indian Law Commissioners (1867). The Commission was a strong one, as it
a included Lord Justice James, Mr. Justice Lush, and Mr. Lowe. The draft code is preceded by a report which points out where the provisions of English Law have been departed from. The document, therefore, is valuable as showing what, in the opinion of the Commissioners, the English law is, and also where it ought to be changed. 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 Wechselund Handels Gesetze aller Länder, 1871), collects 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, England and the United States seem to be the only civilised nations which have not done so. Since Borchardt's work was published the Egyptian Commercial Code has, I believe, been re-cast. I do not know how far the provisions relating to bills have been altered. 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. M. Masse's“ Droit Commercial
et des Gens" is a valuable work on the conflict of laws—especially as regards Bills. The latest American book, I believe, is Daniell on Negotiable Instruments, 1877. 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, it must be remembered, differs materially from the English.
The origin and history of Bills of Exchange and other negotiable instruments are traced by the present Lord Chief Justice in his judgment in Goodwin v. Robarts (1875), 10 L. R. Ex., pp. 346-358. It seems that Bills were first brought into use by the Florentines in the twelfth century. From Italy the use of them spread to France, and eventually they were introduced into England. The first English reported case in which they are mentioned is Martin v. Boure (Cro. Jac. 6), decided in 1603. “At first the use of Bills of Exchange seems to have been confined to foreign bills between English and foreign merchants. It was afterwards extended to domestic bills between traders, and finally to bills of all persons whether traders or not.” The law throughout bas been based on the custom of merchants respecting them; the old form of declaration on bill used always to state that it was drawn"secundum usum et consuetudinem mercatorum.” In the time of Chief Justice Holt, a controversy arose between the courts and the merchants, as to whether the customary incidents of negotiability were to be recognised in the case of promissory notes. The dispute was settled by the stat. 3 & 4 Anne, c. 9, which vindicated the custom and confirmed the negotiability of notes (p. 349). Again, in 1873 the Court of Queen's Bench were of opinion that documents other than bills and notes could not be endowed by custom with the incidents of negotiability. But the efficacy of custom was again upheld by the Exchequer Chamber in 1875, in Goodwin v. Robarts, where it was determined that foreign scrip might be rendered