after, in Scotland, where, in 1696, the Parliament had deliberately extended the privilege of summary execution to inland bills, the principle having been conceded by the Scottish legislature, in the case of foreign bills, about twenty years before. These Scottish statutes we shall presently remark on more particularly. We need not say they contain nothing to suggest any distinction between " gentlemen" and "merchants." England, as in other departments of her legal system, here stands alone, the Scotch law being the law of all other trading countries, although the principle seems not to have been unknown to the ancient law of this country. Lord Brougham, having been educated in the Scotch law, and as a member of the Scotch bar, was of course familiar with these things, and probably had them in view when he took the position about the strong presumption of right," which, to our mind, goes so far to settle the question before us.

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We have thought it right thus to recognise Lord Brougham's peculiar claims to attention on the subject we are considering; and we always cite his noble address of 1828 with pleasure. We have ever looked upon that speech as one of the most remarkable incidents in recent times of the progress and improvement of the English laws; and we confess we have been accustomed to regard it with a respect and deference not exceeded by that we have experienced from any subsequent forensic or judicial effort, however distinguished, of its learned and eminent author. Delivered at a time when law reform can neither be said to have very anxiously engaged the solicitude of the legislature, nor to have occupied public attention, the speech may almost be regarded as a message from the chair of the great commonwealth of jurisprudence, examining with an unflinching criticism the grounds, reasons, and principles, on which the then existing law stood; and calling on those who owed it allegiance to assist in purifying all its departments; and to nerve more firmly and surely the hand of the juridical executive.

In the bill, therefore, which we have made the subject of this article we had expected to find the elements of a well-considered measure, and we have not been disappointed. We like what we deem the thorough honesty of its purpose, and the genuine

desire shown on the face of it to improve our English commercial law. There is no vainglorious attempt to show that the reform proposed by the bill is the natural working of the law of England, nor with dubious nicety to dovetail its machinery into the existing common law practice; while, on the other hand, much skill is displayed in adapting the working of the change to the available appliances of the courts. The preamble honestly sets out that

"WHEREAS the mode of recovering on dishonoured bills of exchange and promissory notes which prevails in the law of Scotland, known as the process of summary diligence, is found to be of beneficial operation, and it is expedient to introduce a similar mode of recovering on such instruments into the law of England. Be it enacted," &c.

Now we are desirous of stating that we highly approve of this preamble. In the first place, it is true that the bill has been suggested by the law of Scotland-a not insufficient reason of itself, perhaps, to candid and ingenuous persons, for the terms employed; and secondly, we consider it extremely important that the law and the lawyers of this country should have secured to them, by the form of the bill, the benefit which the long experience of Scotland in the practice which it proposes to introduce into our legal system must be well able to afford.

The preamble having thus honestly set out the source and purpose of the bill we come to its various sections and clauses, which explain and enact the principle of the change, and the provisions for its application. Section 1 providing, we may remark in passing, that the Act shall come into operation on the 24th day of August of this year, but that it " shall not apply to any bill or promissory note drawn or made prior to the passing of this Act." The nature of the legal process proposed to be enacted is then at once declared by the second, third, fourth, and fifth sections. The second section has been made the subject of very mistaken cavil by some who profess to speak in the interests of the attorneys, in relation to which question we shall again have occasion to refer to it; at present we simply recite it here in connection with the contemplated reform generally. These sections, then, are as follow :—

"II. All bills of exchange and promissory notes shall, for the pur

poses of this Act, be noted, or noted and protested, as in the case of foreign bills of exchange.

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"III. It shall be lawful for the holder of a bill of exchange which has been noted for non-acceptance, or of a bill of exchange or promissory note which has on the day of its becoming due been noted for non-payment, and which bill of exchange or promissory note is free from erasure or alteration in any material part, except by striking out the name or names of an endorser or endorsers, to proceed under the provisions of this Act at any time after protest for non-acceptance or for non-payment, and before the expiration of six months after the day of such bill or note becoming due: provided such holder shall, on or at any time previous to the day of such bill or note becoming due, have been the holder thereof, or liable for the amount of the same, or shall under the custom of merchants have paid such bill or note supra protest for the honour of the drawer of such bill, or of any endorser on such bill or note.

"IV. It shall be lawful for her Majesty to appoint an officer, to be attached to the Court of Common Pleas, who shall be called 'The registrar of protested bills of exchange and promissory notes;' and the said registrar so appointed shall keep a register in the said Court of Common Pleas, in an office situate within the city of London, to be provided by the Lords Commissioners of the Treasury, for the registration of protested bills and promissory notes, as hereinafter provided and such registrar may, by a writing under his hand and seal, appoint a deputy or deputies, who shall be previously approved of by the Lord Chief Justice of the Court of Common Pleas; and all registrations made and other acts done by such deputy or deputies shall have the same effect as if made and done by such registrar.

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"V. Every holder of a dishonoured bill of exchange or promissory note which is free from erasure or alteration in any material part, except as aforesaid, may, after protest, register such bill of exchange or promissory note, and the protest thereon, in the register of the Court of Common Pleas, and shall thereupon be entitled to an order of such Court on such bill of exchange or promissory note against the parties to such bill or note whose names are signed or endorsed thereon, for paynient of the same, with interest and costs, within six days after service of such order, exclusive of the day of service, and in the form contained in the Schedule to this Act annexed, marked No. 1; and upon the expiration of such six days after service of such order on any such party, without such payment having been made as aforesaid, the said order shall have the effect of a judgment against such party, and may be registered as such, and execution may then issue thereon against such party, on affidavit of the service of such order, which affidavit shall be endorsed on such order or annexed thereto : provided always, that in any case of doubt or difficulty arising to the registrar of protested bills of exchange and promissory notes in the execution of his duties under this Act, it shall be lawful for such registrar to refuse to register any bill of exchange

or promissory note and protest thereon until such holder shall apply to and obtain the fiat or order of such Court or a judge directing the registration of such bill or note and protest."

This fifth section would not be very well understood without the first clause of the twenty-fourth, which thus provides :—

"XXIV. Every protest of a bill of exchange or promissory note shall, for the purpose of registration under this Act, be received by the registrar of protested bills of exchange and promissory notes without any evidence being required as to the signature or seal to such protest."

That is to say, the protest will, for the purpose of registration, prove itself, as is the rule in Scotland, and a most important and necessary provision: nor is it open to an objection we have heard suggested, and which we shall afterwards notice, that it is calculated to encourage forgeries. On the contrary, we believe that the bill in this respect is a great improvement, —that it will rather have the tendency to prevent forgery,-and that it will deter from the uttering, use, and attempted circulation of forged bills more effectually than ever.

But to proceed with our inchoate Act of Parliament. The creditor under, or the holder of the bill or note being armed, as we have shown, with the means of legal recourse, what remedy has the debtor, who has good grounds for resisting payment?

The fourteenth and fifteenth sections answer the question; they provide as follows:

:

"XIV. It shall be lawful for the party who has been served with any order for the payment of a bill of exchange or promissory note as aforesaid, at any time before execution levied, or before any writ of Fieri facias, Levari facias, or Elegit issued on such order or judgment has been fully executed, to apply to the Court or a judge to stay execution, which application must be supported by an affidavit disclosing what would constitute a legal or equitable defence to an action on the bill or note against the party seeking to stay execution, or facts which according to law would make it incumbent on the holder of such bill or note to prove in an action thereon that gave a valuable consideration for the same, or such other facts as the Court or judge may deem sufficient to stay proceedings or for the making of such other order as hereinafter provided: provided always, that if the party served with such order shall be arrested on any writ of Capias ad satisfaciendum issued on such order or judgment, it shall be lawful for him, at any time before he is dis

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charged from custody, to apply to the Court or a judge to set aside such writ, and to discharge him from custody, and to stay all further execution; which application shall be supported by affidavit as aforesaid.

"XV. In any of the said cases, if the Court or judge shall think that such legal or equitable defence has been disclosed, execution may be stayed, or the party discharged from custody and execution stayed, as the case may be, or an issue in fact directed to be tried by the parties, or a special case to be stated by them for the opinion of the Court, in the same manner as if the question of fact or of Law so directed to be tried or stated had been raised by consent of parties, without pleading under the provisions of the Common Law Procedure Act, 1852, or such other order made as to the Court or judge shall seem meet: provided always, that in the proceedings in any issue or special case to be directed under this Act the holder of the bill or note shall be plaintiff, and the party seeking to stay execution defendant; and the Court or judge in any of the cases aforesaid shall have power to direct upon what terms, as to security for costs or otherwise, such issue shall be tried, or special case stated, or other order made as aforesaid."

To which may be added the latter clause of the twenty-fourth section and the twenty-fifth section.

“XXIV. * * * * Provided always, that it shall be competent for any party to a bill of exchange or promissory note, to apply for and obtain a suspension of execution as hereinbefore provided on the ground that such bill of exchange or promissory note has not been duly presented, and the Court or judge may if not satisfied require further proof that the presentation alleged in the protest has actually been made by the notary public by whom such protest shall have been made, or by some clerk of or apprentice to such notary public, or by some other person acting in this behalf in default of a notary public.

"XXV. In any proceedings under this Act, on any bill of exchange or promissory note, the defendant may, at any time before execution levied, apply to the Court or to a judge, on affidavit, showing that the bill of exchange or promissory note on which such proceedings have been taken, or his signature thereto or thereon, was obtained from him by any menaces, force, or false pretence, or other fraudulent means, or that such bill or note has been fraudulently appropriated or disposed of, and thereupon such Court or judge may order the said bill or note to be forthwith deposited with the registrar of the Court to abide the further order of the Court or judge, and may further order that all proceedings thereon shall be stayed until the plaintiff shall have given security for the costs thereof."

By the next section, the sixteenth, the party seeking to stay execution must furnish security for debt and costs, a regulation which has not only been always the practice of Scotland, but