contract generally can effectually contract in this particular manner. The matter of the contract is however subject to limitations. In the case of bills and notes it must be for the actual payment of a certain sum of money in specie and unconditionally, and for nothing else (Byles, 91-93). It seems at least doubtful whether an instrument could in any case be considered negotiable at common law which did not satisfy these conditions, and at all events it is not competent to private persons to invent new kinds of negotiable instruments at their pleasure. Thus it seems that shares in a company cannot be made transferable by delivery except in the case of fully paid-up shares or stock provided for by the Companies Act, 1867.* " An attempt to make a deed transferable and negotiable like a bill of exchange or exchequer bill" is not permitted by law (Hibblewhite v. M' Morine, 6 M. & W. 200, 216). In an appeal case from Scotland in the House of Lords not very long ago (Dixon v. Bovill, 3 Macq. 1) there came in question a document known as an " Iron scrip note," being in form a promise to deliver a certain quantity of iron " to the party lodging this document with me." The Lord Chancellor said: "The effect of such a document if valid is to give a floating right of action to any person who may become possessed of it. Now I am prepared to say that this cannot be tolerated by the law either of Scotland or of England. exchange have been made an exception [to the general rules of Bills of contract] for the convenience of trade, but it is an exception not to be extended. The drawer of the bill gives to the indorsee a better title than his own. venience has sanctioned it. No such necessity exists in the mercantile concase of other contracts, and there is no authority to warrant it." The Court of Session had treated the notes as valid, which is not surprising when we consider the fact that "blank bonds" transferable by mere delivery were formerly usual in Scotland, and were allowed by the common law until they were forbidden by statute in 1696 (Ersk. Inst. Bk. 3, Tit. 2, s. 6), which statute the court held not to apply to this case. v. Witherly (2 Ventr. 292, 1 Wm. & Mary), a plea denying in effect that the drawer was a merchant was held bad. And in Cramlington v. Evans (ibid. 307, in error), the custom was laid by the declaration-which set out the custom specially, as was then the form of pleading-as being amongst merchants and other persons, and this was not too general. In Germany there were restrictions of this kind till within quite modern times. * Princess of Reuss v. Bos, L.R. 5 H.L. 176, 203: supra, 749. However there was no evidence of any general mercantile usage to treat these "iron scrip notes" as negotiable, and such evidence might possibly have led the House of Lords to a different conclusion, though it is a question not of fact but of law whether a bill or note [i.e. an instrument of a description already judicially known] be negotiable or not (Grant v. Vaughan, 3 Burr. 1524). The English cases showing what kinds of instruments have been considered negotiable in the courts of this country are collected in Byles, 164, 165, and the notes to Miller v. Race, 1 Sm. L.C. 477. The chief exceptions to the rule that the legal effects of a contract are confined to the contracting parties have now been shortly reviewed. It has been seen that some are only apparent, and some doubtful, while those which are certainly real and substantial exceptions rest on special grounds, and at the same time that they are upheld are distinctly recognised as anomalous; and attempts to extend them by analogy are on the whole discouraged. The principle of the personal character of obligations, though seldom presented in a general or comprehensive form, is still an integral and vital part of our law. FREDERICK POLLOCK. NOTE.-Addenda and Corrigenda in foregoing Articles of this Series.In the August number, p. 556, line 23, transpose the and a; p. 559, ad fin., "for the relation of," read "in their relation to." In the September number, p. 646, note §, add: "Sed vide Touche v. Metropolitan Railway Warehousing Company, L.R. 6 Ch. 671, 677." P. 647, the references § and I should be transposed. P. 651, line 3, for "between C and D, or between A and B," read "between A and C, or between B and P." Add at end of par 3: So the right of the holder of bills of exchange, in the event of the double insolvency of the drawer and the acceptor, to the benefit of any security which may have passed between them, established in Waring's case, 19 Ves. 345, "does not spring out of the contract, but it springs out of the necessities connected with the administration of the two insolvent estates."-Per Lord Cairns, in Banner v. Johnston, L.R. 5 H.L. 174. In the October number, add at end of note : Similarly as to marine policies: The Policies of Marine Assurance Act, 1868, 31 & 32 Vict. c. 86. See also the Companies Act, 1862, s. 157. 1007 VI.-OUR JUDICIAL SYSTEM, AND ITS INFLUENCE ON THE FORMATION OF OUR LAW.* By W. F. FINLASON, Editor of the "Common Law Procedure Acts," of "Nisi Prius Reports," and of "Reeves's History of the English Law." THE HE subject of judicial systems is one of great interest, especially on account of the powerful influence they exercise on the formation of law. Its chief interest, however, arises only when it is treated philosophically and historically, with reference to rational principles and practical experience. Above all, it requires that wide range of experience which is embodied in history, and results from a comparison of other systems with our own. It is thus taken out of the narrow range of mere professional questions, and is invested with general and enduring interest, an interest indeed so great, that Adam Smith contemplated a work upon the subject. It is at the same time put upon a broader and firmer basis than the shifting and uncertain grounds of individual opinion, and thus that which is the most interesting is also the most satisfying way of treating the subject, throws the clearest light upon it, and leads to the safest and most certain conclusions. By this method, a true and natural idea of a judicial system is first formed upon the solid basis of undoubted facts and elementary truths, derived from common knowledge and common observation. From these the necessary consequences and conclusions are drawn, and they are tested by the common experience of mankind. The conclusions thus arrived at ought to be found confirmed by universal experience, and this will be found to be the fact. Nor is this all. Our latest legislative measures have actually adopted and embodied all the principles thus arrived at; the opinions of the highest authorities, as far as they have agreed, are in accordance with them; they have only differed when departing from these principles; and it is thus demonstrated that they are sound, and all that remains is to carry them out.f Upon this, as on all other subjects, there are some things which are self-evident, and apparent on the slightest reflection. Yet, for this very reason, they are habitually overlooked, because not reflected upon, but passed by as too apparent to require reflection. Though too plain, however, to require much reflection to perceive them, it requires some reflection to perceive all their consequences, which yet are manifest when It is desirable to state that this Article was written for the last Number. †The Reports of the Judicature Commission, 1872. pointed out. The perception of these consequences, and their natural results, will guide us to the principles which lie at the root of the whole subject, and lead us to sound and certain conclusions. It is manifest that a system must be considered with reference to the idea of its objects, and the objects of a judicial system must be to administer justice and to ascertain the law. Extreme theorists have, indeed, sought to supersede the latter function of a judicature by means of legislative action. But the experience of other nations has shown, that however a code may assist, it cannot supercede the exercise of this function. Even a code requires interpretation: the ablest advocates of codification admit that no code can provide in terms for all cases, and whatever the name or the form of the tribunal which is to provide for them, it must in reality be a judicial body, even if it is also legislative. Both the objects stated have therefore to be provided for in a judicial system. Paley long ago pointed out that they were different and distinct: and from this it would follow that the machinery for each must be different. In all cases the first object must be answered, and it may, in many cases, include the other, but in most cases, in point of fact, it does not. The first and fundamental fact of the subject is, that in the great majority of cases there is no real dispute between the parties at all,* and that where there is any, it is generally upon the fact or on the application of the law, and not as to the law. Thus, therefore, in most cases it is the first object alone which is to be attained. This only concerns the just determination of individual cases, and chiefly concerns the suitors. As to these, it is self-evident that the facts should be ascertained as speedily as possible, and that the first and fundamental fact to be ascertained in each case is whether there is anything really in dispute, and if so, what it is. For this must, it has been seen, necessarily affect the course of procedure; and if the facts are in dispute, it is obvious that they cannot be ascertained too soon. For facts rest upon testimony, and testimony upon the memory of witnesses, which becomes weaker with the lapse of time, while their impressions may be tampered with, and documents may be lost or destroyed. On the other hand, when the facts are once ascertained, if any question of law arises, it requires deliberation, because the determination must govern future cases, and affects the community at large. And while the interests of the community require delay, the interest of the suitor will not be materially prejudiced by it. Hence in every case the first object must be to ascertain its nature, and the Mr. Daniel, Q.C., in his interesting and valuable Paper read at the Social Science Congress, Plymouth, has supplied the latest and most striking illustrations of this truth. next to ascertain the facts. And it is obvious that the first object requires an early and compulsory examination of the case, and the next as speedy a trial as possible. The majority of the cases will be cleared off by the first proceeding, and all will be cleared up by it. Most of the remainder will be decided by the second process, and the application of plain and undoubted law. The larger number of the cases being thus promptly disposed of, and so the first object answered, ample time will be allowed to the judicature to determine, with due deliberation, in the first instance, any questions of law arising in the comparatively small number of cases which will remain. Promptness being of the essence of the first two processes, it is manifest that this would be impracticable without the distribution of business in local courts for the institution of suits in first instance. The errors naturally arising in the ascertainment of the facts or the application of the law would require appellate tribunals with a somewhat superior judicature; these also, for a similar reason, so far diffused as to be conveniently accessible and reasonably speedy. While questions as to the law would certainly require the solemn determination of a supreme and central tribunal, with the highest attainable order of judicature. And thus, by the light of reason we aimed at, a judicial organization, by which both objects will be attained the prompt administration of justice, and the deliberate ascertainment of the law. : The same conclusion will be reached by another process, beginning with an elementary truth instead of an undoubtel fact. The truth is, that no man is a good judge in his own case. This means far more than that he cannot be trusted to decide it, for that would be rather a truism than a truth. It means that the suitor cannot be allowed to judge as to the proper judicature or course of procedure. Paley observed, that suitors would press any suits, whatever their merits, in which they perceived the slightest chance of success. This shows that success, and not justice, is their object; and if they have a choice of judicature or procedure, it will be governed by its supposed influence on the chance of success. Long ago Adam Smith observed that though men have a keen and quick sense of what is just in other men's cases, they are too often blind or unreasonable to it in their own. And Lord Macaulay only followed out the same truth when he showed that men pursue not their true interest, but their own idea of it, which is very different indeed. Hence suitors pursue not justice, but their own idea of it; and the sense of self-interest, even in the best, blinds them to what is just. The only difference in this respect between honest suitors and dishonest, is * Moral Philosophy. |