Seller not entitled to a Second Pur chaser. Delivery of such Goods shall from and after the Date of such Sale be attachable by or transferable to the Creditors of the Purchaser. II. Where a Purchaser of Goods who has not obtained Delivery Right of Re- thereof shall after the passing of this Act sell the same, the Purchaser tention gene- from him or any other subsequent Purchaser shall be entitled to 5 rally against demand that Delivery of the said Goods shall be made to him and not to the original Purchaser; and the Seller, on Intimation being made to him of such subsequent Sale, shall be bound to make such Delivery, on Payment of the Price of such Goods, or Performance of the Obligations or Conditions of the Contract of Sale, and shall 10 not be entitled, in any Question with a subsequent Purchaser, or others in his Right, to retain the said Goods for any separate Debt or Obligation alleged to be due to such Seller by the original Purchaser Provided always, that nothing in this Act contained shall prejudice or affect the Right of Retention of the Seller for Payment 15 of the Purchase Price of the Goods sold, or such Portion thereof as may remain unpaid, or for Performance of the Obligations or Conditions of the Contract of Sale, or any Right of Retention competent to the Seller, except as between him and such subsequent Purchaser, or any such Right of Retention arising from express Contract with 20 the original Purchaser. Arrestment of Goods by Seller. III. Any Seller of Goods may attach the same while in his own and Poinding Hands or Possession, by Arrestment or Poinding, at any Time prior to the Date when the Sale of such Goods to a subsequent Purchaser shall have been intimated to such Seller, and such Arrestment or 25 Poinding shall have the same Operation and Effect in a Competition or otherwise as an Arrestment or Poinding by a Third Party. Rights of not to be Seller not rant Goods, be an express Warranty in IV. Nothing herein-before contained shall prejudice or affect the Landlord's Right of Hypothec and Sequestration for Rent. V. Where Goods shall, after the passing of this Act, be sold, 30 held to war- the Seller, if at the Time of the Sale he was without Knowledge except there that the same were defective or of bad Quality, shall not be held to have warranted their Quality or Sufficiency, but the Goods, with all Faults, shall be at the Risk of the Purchaser, unless the Seller shall have given an express Warranty of the Quality or Sufficiency of such 35 Goods, or unless the Goods have been expressly sold for a specified and particular Purpose, in which Case the Seller shall be considered, without such Warranty, to warrant that the same are fit for such Purpose. VI. From &c. to be in VI. From and after the passing of this Act, all Guarantees, Secu- Guarantees, rities, or Cautionary Obligations made or granted by any Person Writing. for any other Person, and all Representations and Assurances as to the Character, Conduct, Credit, Ability, Trade, or Dealings of any 5 Person, made or granted to the Effect or for the Purpose of enabling such Person to obtain Credit, Money, Goods, or Postponement of Payment of Debt, or of any other Obligation demandable from him, shall be in Writing, and shall be subscribed by the Person undertaking such Guarantee, Security, or Cautionary Obligation, or making 10 such Representations and Assurances, or by some Person duly authorized by him or them, otherwise the same shall have no Effect. to or for a be binding after any Change of VII. No Guarantee, Security, Cautionary Obligation, Representa- Guarantees tion, or Assurance granted or made after the passing of this Act to or Firm not to for a Company or Firm consisting of Two or more Persons, or to or for 15 a single Person trading under the Name of a Firm, shall be binding on the Granter or Maker of the same in respect of anything done or the Firm, omitted to be done, after a Change shall have taken place in any One except in special or more of the Partners of the Company or Firm to which the same Cases. has been granted or made, or of the Company or Firm for which the 20 same has been granted or made: Unless the Intention of the Parties 25 that such Guarantee, Security, Cautionary Obligation, Representation, or Assurance, shall continue to be binding, notwithstanding such Change, shall appear either by express Stipulation, or by necessary Implication from the Nature of the Firm or otherwise. not to be entitled to VIII. Where any Person shall, after the passing of this Act, become Cautioners bound as Cautioner for any Principal Debtor, it shall not be necessary for the Creditor to whom such Cautionary Obligation shall be Benefit of granted, before calling on the Cautioner for Payment of the Debt Discussion. to which such Cautionary Obligation refers, to discuss or do Dili30 gence against the Principal Debtor, as now required by Law; but it shall be competent to such Creditor to proceed against the Principal Debtor and the said Cautioner, or against either of them, and to use all Action or Diligence against both or either of them which is competent according to the Law of Scotland: Provided always, that 35 nothing herein contained shall prevent any Cautioner from stipulating in the Instrument of Caution that the Creditor shall be bound before proceeding against him to discuss and do Diligence against the Principal Debtor. tioner to ope IX. From and after the passing of this Act, where Two or more Discharge of 40 Parties shall become bound as Cautioners for any Debtor, any Dis- One Caucharge granted by the Creditor in such Debt or Obligation to any rate as a Dis[181.] A 2 One charge to all. Date of Bills be proved by Parole. One of such Cautioners without the Consent of the other Cautioners shall be deemed and taken to be a Discharge granted to all the Cautioners; but nothing herein contained shall be deemed to extend to the Case of a Cautioner consenting to the Discharge of a Co-cautioner who may have become bankrupt. 5 X. From and after the passing of this Act, where any Bill of or Notes may Exchange or Promissory Note shall be issued without Date, it shall be competent to prove by Parole Evidence the true Date at which such Bill or Note was issued: Provided always, that Summary Diligence shall not be competent on any Bill or Note issued without a 10 Date. Acceptance of Bill of Ex be in Wri XI. No Acceptance of any Bill of Exchange, whether Inland or change must Foreign, made after the Thirty-first Day of December One thousand eight hundred and fifty-six, shall be sufficient to bind or charge any Person unless the same be in Writing on such Bill, or if there be 15 more than One Part of such Bill, on One of the said Parts, and signed by the Acceptor or some Person duly authorized by him. ting. All Bills drawn with within the XII. Every Bill of Exchange drawn in any Part of the United in the United Kingdom of Great Britain and Ireland, the Islands of Man, GuernKingdom, &c. sey, Jersey, Alderney, and Sark, and the Islands adjacent to 20 on any Party any of them, being Part of the Dominions of Her Majesty, and United King- made payable in or drawn upon any Person resident in any Part of dom, &c. to be the said United Kingdom or Islands, shall be deemed to be an Inland Bill; but nothing herein contained shall alter or affect the Stamp Duty, if any, which but for this Enactment would be payable in respect 25 of any such Bill. held Inland Bills. Notarial Protest not to be neces sary, except for the Pur pose of Summary XIII. From and after the passing of this Act, where any Inland Bill of Exchange shall be presented for Acceptance or Payment, and the same shall be dishonoured by not being accepted or paid, or where any Promissory Note shall be presented for Payment, and dishonoured 30 by not being paid, it shall not be necessary that a Notarial Protest shall be taken on such Bill of Exchange or Promissory Note in order to preserve Recourse against the Drawer or Indorser of such Bill or Promissory Note respectively; but it shall be sufficient to prove such Presentment and Dishonour, to the Effect of preserving Recourse as 35 aforesaid by other competent Evidence, either written or parole: Provided always, that nothing herein contained shall be taken to affect the Necessity for a Notarial Protest in order to entitle the Holder of any Bill or Note to proceed with Summary Diligence thereon. XIV. Where 40 in the Case of XIV. Where any Inland Bill of Exchange shall be presented for Notice of Acceptance or Payment, and such Acceptance or Payment shall be Dishonour refused, or where any Promissory Note shall be presented for Payment, Inland Bills and Payment shall be refused, Notice of the Dishonour of such Bill or to be given as in the Case 5 Promissory Note by such Refusal to accept or pay shall, in order to entitle the Holder to have Recourse to any other Party, be given in the same Manner and within the same Time as is required in the Case of Foreign Bills by the Law of Scotland. of Foreign Bills. When Bill XV. Where any Bill or Note has been lost, stolen, or fraudulently lost, stolen,or 10 obtained, the Holder of such Bill or Note suing or doing Diligence fraudulently thereon shall be bound to prove that Value was given by him for the Holder must same; but such Proof may be made by Parole Evidence. XVI. When any Bill of Exchange or Promissory Note shall, after the passing of this Act, be indorsed after the Period when such Bill 15 of Exchange or Promissory Note became payable, the Indorsee of such Bill or Note shall be deemed to have taken the same subject to all Objections or Exceptions to which the said Bill or Note was subject in the Hands of the Indorser. obtained, prove Value given. Bill or Note Holder of XVII. From and after the passing of this Act, all Carriers for Hire Carriers to 20 of Goods within Scotland shall be liable to make good to the Owner be liable for Loss by acof such Goods all Losses arising from accidental Fire while such cidental Fire. Goods were in the Custody or Possession of such Carriers. in United XVIII. In relation to the Rights and Remedies of Persons having Every Port Claims for Repairs done to or Supplies furnished to or for Ships, Kingdom, 25 every Port within the United Kingdom of Great Britain and Ireland, &c. to be the Islands of Man, Guernsey, Jersey, Alderney, and Sark, and the deemed a Islands adjacent to any of them, being Part of the Dominions of Her Majesty, shall be deemed a Home Port. Home Port. make Re XIX. The Court of Session is hereby empowered from Time to Court of 30 Time, after the passing of this Act, to make such Regulations by Act Session to or Acts of Sederunt as the said Court may deem meet for carrying gulations into effect the Purposes of this Act: Provided always, that within for carrying Fourteen Days from the Commencement of any future Session of effect. Parliament there shall be transmitted to both Houses of Parliament 35 Copies of all Acts of Sederunt made and passed under the Powers hereby given. Act into XX. In citing this Act it shall be sufficient to use the Expression Title of Act. "The Mercantile Law Amendment Act, Scotland, 1856." XXI. Nothing in this Act contained shall apply to any Part of the 40 United Kingdom except Scotland. Act to apply to Scotland only. |