BE it enacted by the Queen's Most Excellent Majesty by and with

Transcription

1 1 542 INSTRUMENTS. [54 VICT. INSTRUMENTS ACT VICTORIA, An Act to consolidate the Law relating to Instru- No ments and securities. short title comdi^alon', 6 ' 1 an L July, lovyf.] BE it enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say): 1. This Act may be cited as the InstrumeMs Act 1890, and shall come into operation on the first day of August One thousand eight hundred and ninety, and is divided into Parts Divisions and Subdivisions as follows:,. (1) Form and Interpretation ss (2) Capacity and authority of Parties ss (3) The Consideration for a Bill ss (4) Negotiation of Bills ss Division 1. (5) General Duties of the Holder PART I. Bills of Exchange Cheques and Promissory Notes. Bills of Ex-I ss change. (6) Liabilities of Parties ss { (7) Discharge of Bill ss (8) Acceptance and Payment for honour ss (9) Lost Instruments ss. 70 and 71. (10) Bill in a Set s. 72. _(U) Conflict of Laws s. 73. Division 2. f /i\ n _ n,...«r,-, I (1) ureneraliy ss (jneques _ -n 1 on (*) > ov orossea n a i^neques rru ss. «// od. oo a.banker. (. Division 3. Promissory Notes ss Division 4. Summary Proceedings ss Division 5. Supplementary,ss

2 No ] INSTRUMENTS ACT PAET II. Bills of Lading ss 'TheBniaof PART HI*^- C Y\* * * i mr * ^ 1t > * * /> -. /* ^?w & Policies of < iy * 011!). itorine Jronciesss. llo l^u. PART IV. Bonds ss PART V. Guarantees ss PART VI. Bills of Sale ss PART VII. Liens on Crops ss PART VIII. Mortgages of Stock and Liens on Wool ss PART IX. Warrants of Attorney ss PART X. f Division 1. By Corporations or Companies ss. Powers of \ Attorney. l^ Division 2. By Individuals ss PART XI. Miscellaneous Provisions ss The Acts mentioned in the First Schedule to this Act to the ex- Eepeal tent to which the same are thereby expressed to be repealed are hereby First schedule, repealed. Provided that such repeal shall not affect any instrument or security the subject-matter of this Act made or given or in existence before or at the commencement of this Act, nor the registration of any instrument or security the subject-matter of this Act effected before the commencement of this Act, nor any contract or agreement made lien or pledge given or other act matter or thing done before the commencement of this Act. And all bills of exchange promissory notes bankers' drafts cheques on bankers bills of lading policies bonds guarantees bills of sale liens on crops mortgages of stock liens on wool warrants of attorney and cognovits actionem powers of attorney and all registrations of bills of sale liens of crops mortgages of stock liens on wool warrants of attorney and cognovits actionem and powers of attorney in existence or effected before the commencement of this Act and all contracts agreements liens pledges or other act matter or thing made entered into or done before the commencement of this Act shall have and be of the same force and effect and continue to have and be of the same force and effect to all intents and purposes whatsoever as the same would respectively have had or continued to have had if this Act had not been passed and not further or otherwise. PART I.^ BILLS OF JUXCHANGE CHEQUES AND PROMISSORY.NOTES. 3. In this Part of this Act unless the context otherwise requires interpretation,,..,,,,,,, j.. ol term*. " Acceptance means an acceptance completed by delivery or u.». a, notification: «&«yict. Action includes counter-claim and set-on: -"A^ceptanoe." " Banker " includes a body of persons whether incorporated or "Action." not who carry on the business of banking: "Banker." "Bearer" means the person in possession of a bill or note "Bearer." which is payable to bearer: tl Bill" means bill of exchange and " note " means promissory "BUI." note: " Delivery" means transfer of possession actual or constructive " Delivery,** from one person to another: " Holder " means the payee or indorsee of a bill or note who is " HoMer.- in possession of it or the bearer thereof: VOL. II. 3 B

3 1544 INSTRUMENTS ACT [54 VIOT. "TkeBmof ExetoitgtAct "Indorsement." "Insolent" Tssufc" tl Person." ** Value." "Written." "Indorsement" means an indorsement completed by delivery: "Insolvent" includes any person whose estate is vested in a trustee or assignee under the law for the time being in force relating to insolvency: «Issue " means the first delivery of a bill or note complete in form to a person who takes it as a holder: a Person " includes a body of persons whether incorporated or not: u Value " means valuable consideration : " Written " includes printed, and " writing " includes print. DIVISION 1,* *BILLS OF EXCHANGES. (1) Form and Interpretation. Bin of exchange 4. (1) A bill of exchange is an unconditional order in writing denned. addressed by one person to another signed by the person giving it «'&46Vi requiring the person to whom it is addressed to pay on demand or at a c. ei s. a. fixed or determinable future time a sum certain in money to or to the order of a specified person or to bearer. (2) An instrument which does not comply with these conditions or which orders any act to be done in addition to the payment of money is not a bill of exchange. (3) An order to pay out of a particular fund is not unconditional within the meaning of this section; but an unqualified order to pay coupled with (a) an indication of a particular fund out of which the drawee is to reimburse himself or a particular account to be' debited with the amount, or (b) a statement of the transaction which gives rise to the bill is unconditional. (4) A bill is not invalid by reason (a) That it is not dated: ( ) That it does not specify the value given or that any value has been given therefor: (c) That it does not specify the place where it is drawn or the place where it is payable. Inland and 5. (1) An inland bill is a bill which is or on the face of it pur- ports to be (a) both drawn and payable within Australia Tasmania New Zealand or Fiji Islands or (b) drawn within Australia Tasmania New foreign biiis. L'l'*' ID. S. *. J \ / W^iW -4.1 V T Zealand or Fiji Islands upon some person resident therein. Any other bill is a foreign bill. (2) Unless the contrary appear on the face of the bill, the holder may treat it as an inland bill. Effectwiiere 6. (1) A bill may be drawn payable to or to the order of the to biiure P tne * drawer, or it may be drawn payable to or to the order of the drawee, same person. 0Q Where in a bill drawer and drawee are the same person, or Jfc Ihr 6* s. 6* 5. where the drawee is a ffctitious person or a person not having capacity to contract, the holder may treat the instrument at his option either as a bill of exchange or as a promissory note. Addressto drawee. lb. s. & "^ (1) The drawee must be named or otherwise indicated in a bill with reasonable certainty. (2) A bill may be addressed to two or more drawees whether they are partners or not, but an order addressed to two drawees in the alternative or to two or more drawees in succession is not a bill of exchange,

4 No ] INSTEUMENTS ACT (1) Where a bill is not payable to bearer, the payee must be "Tkemtttf named or otherwise indicated therein with reasonable certainty. isasft?.'*** (2) A bill may be made payable to two or more payees jointly or Certainty it may be made payable in the alternative to one of two or one or j ^! ^ *" * some of several payees. A bill may also be made payable to the«&4aviet. holder of an office for the time being. ' ' M fct * (3) Where the payee is a fictitious or non-existing person, the bill may be treated as payable to bearer. 9. (1) When a bill contains words prohibiting transfer or indicating What bilja ore an intention that it should not be transferable, it is valid as between the ne K tlable - parties thereto bat is not negotiable. i*'*t r f.^ * i> 'il J_ 1 i 1 11). B. S. (3) A negotiable bill may be payable either to order or to bearer. (3J A bill is payable to bearer which is expressed to be so payable or on which the only or last indorsement is an indorsement in blank. (4) A bill is payable to order which is expressed to be so payable or which is expressed to be payable to a particular person and does not contain words prohibiting transfer or indicating an intention that it should not be transferable. (5) Where a bill either originally or by indorsement is expressed to be payable to the order of a specified person and not to him or his order, it is nevertheless payable to him or his order at his option. 10. (1) The sum payable by a bill is a sum certain within the sumspayabe. meaning of this Part of this Act although it is required to be paid n.«. 9. fi (a) With interest: By stated instalments: By stated instalments with a provision that upon default in payment of any instalment the whole shall become due: (d) According to an indicated rate of exchange or according to a rate of exchange to be ascertained as directed by the bill. (2) Where the sum payable is expressed in words and also in figures and there is a discrepancy between the two, the sum denoted by the words is the amount payable. (3) Where a bill is expressed to be payable with interest unless the instrument otherwise provides, interest runs from the date of the bill and if the bill is undated from the issue thereof. n».»» 11. (1) A bill is payable on demand Bin payable on (a) Which is expressed to be payable on demand or at sight demand. or on presentation, or * * ** (b)in which no tune for payment is expressed. (2) Where a bill is accepted or indorsed when it is overdue, it shall as regards the acceptor who so accepts or any indorser who so indorses it be deemed a bill payable on demand. 12. A bill is payable at a determinable future time within the Bill payable at a meaning of this Part of this Act which is expressed to be payable future time. (1^ At a fixed period after date or sight: Ib' * ^ (2) On or at a fixed period. after the occurrence of a specified event which is certain to happen though the timeof happening may be uncertain. An instrument expressed to be payable on a contingency is not a bill and the happening of the.event does not cure the defect* 3 B z

5 1546 INSTRUMENTS ACT [54 VICT. " The Bias <>/ 13. Where a bill expressed to be payable at a fixed period after date iss3" l!! i i2. Jll!( Oraisglon of i s issued undated or where the acceptance of a bill payable at a fixed period after sight is undated, any holder may insert therein the true date date In bill ^^^^ «A ~- ~~~~~*~~ rt^ ~~J 4-l*~ 1^11 rt^ ll l- rt «rt *w- A UlA AAnf»Jit.i.l n payable alter te - c eis. is. Ante-dating and POs ating. oi issue or acceptance, ana the bill snail be payable accordingly. Provided that (1) where the holder in good faith and by mistake inserts a wrong date, and (is) m every case where a wrong date is inserted, if the bill subsequently conies into the hands of a holder in due course, the bill shall not be avoided thereby but shall operate and be payable as if the date so inserted had been the true date. 14. (1) Where a bill or an acceptance or any indorsement on a bill j a (ja^gd fjjg date shall unless the contrary be proved be deemed to be the Ib.s.13. j._ ^ j JL»*AI, j.; ~ J. ^ '~J. >, i. ii,.,,. u _ true date oi ttie drawing acceptance or indorsement as tne case may be. (<s) A bill is not invalid by reason only that it is ante-dated or post-dated or that it bears date on a Sunday. Computation of 15. Where a bill is not payable on demand, the day on which time of payment. -j ^jjg $$& ^s determined ss followg. Ib ^^ t y - l l l l I* \ ' t ib. s.i4. (1) Three days^ (called days or grace) are in every case where the bill itself does not otherwise provide added to the time of payment as nxed by the bill and the bill is due and payable on the last day of grace: IrrovKled that when the last day 01 grace is a Sunday or a bank holiday under the Banks and Currency Act 1890 and Acts amending or extending it or a day appointed by the Governor in Council as a day of solemn fast orthanksgiving, the bill is due and payable on the succeeding business day: (2) Where a bill is payable at a fixed period after date after sight or after the happening of a specified event, the time of payment is determined by excluding the day from which the time is to begin to run and by including the day of payment: (3) Where a bill is payable at afixedperiod after sight, the time begins to run from the date of the acceptance if the bill be accepted, and from the date of noting or protest if the bill be noted or protested for non-acceptance or for nondelivery. (4) The term " month " in a bill means calendar month. Case of need. 16. The drawer of a bill and any indorser may insert therein the n. a 16. name of a person to whom the holder may resort in case of need, that Ib. B. 16. is to say, in case the bill is dishonoured by non-acceptance or nonpayment. Such person is called the referee in case of need. It is in the option of the holder to resort to the referee in case of need or not as he may think fit. Optional etipumtlodel bt drawer o» Jk7"ieft.s. le. 1 1?. The drawer of a bill and any indorser may insert therein an ntiminaa a 4-iw\-nlnf.AVI express stipulation (1) Negativing or limiting his own liability to the holder: (2) Waiving as regards himself some or all of the holder's Definition and duues, requisites of «B /I\ mi! i >ii j.i *J» L2 I J_I J acceptance. n>; 1 i7." is. (i) r j,ne acceptance ot a bill is the signification by the drawee of his assent to the order of the drawer.

6 No ] INSTRUMENTS ACT (2) An acceptance is invalid unless it complies with the following "TAeBniaof conditions, namely: ^fs ^ Mi (a) It must be written on the bill and be signed by the drawee. The mere signature of the drawee without additional words is sufficient: (b) It must not express that the drawee will perform his promise by any other means than the payment of money. 19. A bill may be accepted Time for (1) Before it has been signed by the drawer or while otherwise J^ia"^ incomplete: «& «vict (2) When it is overdue or after it has been dishonoured by a Cl ei fc u " previous refusal to accept or by non-payment: (3) When a bill payable after sight is dishonoured by nonacceptance and the drawee subsequently accepts it, the holder in the absence of any different agreement is entitled to have the bill accepted as of the date of first presentment to the drawee for acceptance. 20. (1) An acceptance is either (a) general or (b) qualified. General and (2) A general acceptance assents without qualification to the order ^oa^ocs. of the drawer; a qualified acceptance in express terms varies the effect ib.*. is. of the bill as drawn. H>- * 18 - In particular an acceptance is qualified which is (a) Conditional, that is to say, which makes payment by the acceptor dependent on the fulfilment of a condition therein stated: (b) Partial, that is to say, an acceptance to pay part only of the amount for which the bill is drawn: (c) Local, that is to say, an acceptance to pay only at a particular specified place: An acceptance to pay at a particular place is a general acceptance unless it expressly states that the bill is to be paid there only and not elsewhere: (d) Qualified as to time: (e) The acceptance of some one or more of the drawees but not of all. 21. (1) Where a simple signature on a blank stamped paper is inchoate delivered by the signer in order that it may be converted into a bill, it ^T^1 operates as a prtjnd facie authority to fill it up as a complete bill for ^ t ^ any amount the stamp will cover using the signature for that of the drawer or the acceptor or an indorser; and in like manner when a bill is wanting in any material particular, the person in possession of it has a primd facie authority to fill up the omission in any way he thinks fit. (2) In order that any such instrument when completed may be enforceable against any person who became a party thereto prior to its completion, it must be filled up within a reasonable time and strictly in accordance with the authority given. Reasonable time for this purpose is a question of fact. Provided that if any such instrument after completion is negotiated to a holder in due course, it shall be valid and effectual for all purposes in his hands and he may enforce it as if it had been filled up within a reasonable time and strictly in accordance with the authority given.

7 1548 INSTEUMENTS ACT [54 VICT. " The BUle of Ji$eh<mge Act USO"* Br Si* Delivery. 46 & if} Vict, c* 61 &. 21. Capacity of parties. lb, #* S2i lb. e* 22. Signature essential to liability. lb. s. 23. Ib Forged or unauthorized signature. lb- #* 24. Ib. s. &t. 22. (1) Every contract on a bill whether it be the drawer's the acceptor's or an indorser's is incomplete and revocable until delivery of the instrument in order to give effect thereto. Provided that where an acceptance is written on a hill and the drawee gives notice to or according to the directions of the person entitled to the hill that he has accepted it, the acceptance then becomes complete and irrevocable. (2) As between immediate parties and as regards a remote party other than a holder in due course, the delivery (a) In order to be effectual must be made either by or under the authority of the party drawing accepting or indorsing as the case may be: (b) May be shown to have been conditional or for a special purpose only and not for the purpose of transferring the property in the bill. But if the bill be in the hands of a holder in due course, a valid delivery of the bill by all parties prior to him so as to make them liable to him is conclusively presumed. (3) Where a bill is no longer in the possession of a party who has signed it as drawer acceptor or indorser, a valid and unconditional delivery by him is presumed until the contrary is proved. (2) Capacity and Authority of Parties. 23. (1) Capacity to incur liability as a party to a bill is co-extensive with capacity to contract. Provided that nothing in this section shall enable a corporation to make itself liable as drawer acceptor or indorser of a bill unless it is competent to it so to do under the law for the time being in force relating to corporations. (2) Where a bill is drawn or indorsed by an infant minor or corporation having no capacity or power to incur liability on a bill, the drawing or indorsement entitles the holder to receive payment of the bill and to enforce it against any other party thereto. 24. No person is liable as drawer indorser or acceptor of a bill who has not signed it as such. Provided that (1) Where a person signs a bill in a trade or assumed name, he is liable thereon as if he had signed it in his own name: (2) The signature of the name of a firm is equivalent to the signature by the person so signing of the names of all persons liable as partners in that firm. 25. Subject to the provisions of this Part of this Act, where a signature on a bill is forged or placed thereon without the authority of the person whose signature it purports to be, the forged or unauthorized signature is wholly inoperative, and no right to retain the bill or to give a discharge therefor or to enforce payment thereof against any party thereto can be acquired through or under that signature unless the party against whom it is sought to retain or enforce payment of the bill is precluded from setting up the forgery or want of authority. Provided that nothing in this section shall affect the ratification of an unauthorized signature not amounting to a forgery.

8 No ] INSTRUMENTS ACT A signature by procuration operates as notice that the agent "Themutej has but a limited authority to sign, arid the principal is only bound by ^^^\i tt such signature if the agent in so signing was acting within the actual Procuration limits of his authority. 46& «vict, c. 61 B, (1) Where a person signsa bill as drawer indorser or acceptor Person signing and aaas.words to ms signature indicating that he signs for or on behail representatire of a principal or in a representative character, he is not personally ca' iw:l '*- liable thereon; but the mere addition to his signature of words descnb- lb>sp2j, ing him as an agent or as filling a representative character does not exempt him from personal liability. (2) In determining whether a signature on a bill is that of the principal or that of the agent by whose hand it is written, the construction most favorable to the validity of the instrument shall be adopted. (3) The Consideration for a, Bill. 28. (1) Valuable consideration for a bill may be constituted by Value and / \ k ' l x* JE A L L * l j. x holder f r (a) Any consideration snmcient to support a simple contract: Value, (b) An antecedent debt or liability. Such a debt or liability is? * ^t deemed valuable consideration whether the bill is payable on demand or at a future time. (2) Where value has at any time been given for a bill, the holder is deemed to be a holder for value as regards the acceptor and all parties to the bill who became parties prior to such time. (3) Where the holder of a bill has a lien on it arising either from contract or by implication of law, he is deemed to be a holder for value to the extent of the sum for which he has a lien. 29. (1) An accommodation party to a bill is a person who Accommodation has signed a bill as drawer acceptor or indorser without receiving *J" or j* arty ' value therefor and for the purpose of lending Jus name to some other ^. 28. person. (2) An accommodation party is liable on the bill to a holder for value, and it is immaterial whether when such holder took the bill he knew such party to be an accommodation party or not. 30. (1) A holder in due course is a holder who has taken a bill Holder in due complete and regular on the face of it under the following conditions, ^*, namely: id.g.sa. (a) That he became the holder of it before it was overdue and without notice that it had been previously dishonoured if such was the fact: (b) That he took the bill in good faith and for value and that at the time the bill was negotiated to him he had no notice of any defect in the title of the. person who negotiated it. (2) In particular the title of a person who negotiates a bill is defective within the meaning of this Part of this Act when he obtained the bill or the acceptance thereof by fraud duress or force and fear or other unlawful means or for an'illegal consideration, or when he negotiates it in breach of faith or under such circumstances as amount to a fraud.

9 1550 INSTBUMENTS ACT [54VIOT. «Tkt em & ^anje flvfot. c6flltu30. C Negotiation of bill. lb. e. 31. lb. B. 31. (3) A holder (whether ror value er not) who oerives sia sitle et o ^ftl ^^oug h aolder ri nue eourse ean who oi sot timself f aarty yt any fraud or illegality affecting it has all the rights of that holder in due course as regards the acceptor and all parties to the bill prior to that holder. Pnsumptum of 31. (1) Every party whose signature appears on a bill isprimd iue and good y ao^e deemed to have become a party thereto for value. «s. so. (2) Every holder of a bill is primd facie deemed to be a holder in Requisites of a ment,"i ors se ib. s. zi. due course; but if in an action on a bill it is admitted or proved that the acceptance issue or subsequent negotiation of the bill is affected with fraud duress or force and fear or illegality, the burden or proof is shifted unless and until the holder proves that subsequent to the alleged fraud or illegality value has in good faith been given for the bill. (4) Negotiation of Bills. 38. (1) A bill is negotiated when it is transferred from one person to another in such a manner as to constitute the transferee the holder of the bill. (2) A bill payable to bearer is negotiated by delivery. (3) A bill payable to order is negotiated by the indorsement of the holder completed by delivery. (4) Where the holder of a bill payable to his order transfers it for value without indorsing it, the transfer gives the transferee such title as the transferor had in the bill, and the transferee in addition acquires the right to have the indorsement of the transferor. (5) Where any person is under obligation to indorse a bill in a representative capacity, he may indorse the bill in such terms as to negative personal liability. 33. An indorsement in order to operate as a negotiation must comply with the eollowing conditions,,amely: (1) I* must be written on the bill itself and be signed by the indorser. The simple signature 01 the indorser on the bin without additional words is sufficient: An indorsement written on anallongeorona"copy"_of a bill issued or negotiated in a country where ''copies" are recognised is deemed to be written on the bill itself: (2) It must be an indorsement of the entire bill. A partial indorsement, that is to say, an indorsement which purports to transfer to the indorsee a part only of the amount payable or which purports to transfer the bill to two or more indorsees severally, does not operate as a negotiation of the bill: (3) Where a bill is payable to the order of two or more payees or indorsees who are not partners, all must indorse unless the one indorsing has authority to indorse for the others: (4) Where in a bill payable to order the payee or indorsee is wrongly designated or his name is mis-spelt, he may indorse the bill as therein described adding if he think fit his proper signature: (5) Where there are two or more indorsements on a bill, each indorsement is deemed to have been made in the order in which it appears on the bill until the contrary is proved:

10 No ] INSTRUMENTS ACT (6) An indorsement may be made m blank or special. It may " The Stitt «/ v i J.-J. i _ -A i. ' i.' Exchange Aco also contain terms making it restrictive. i8s3." 34. Where a bill purports to be indorsed conditionally, the condi- conditional d. i i. i i i n i L i xi ' i * indorsement. tion may be disregarded by the payer, and payment to the indorsee is ^ t ^ valid whether the condition has been fulfilled or not. «&4aviot 35. (l) An indorsement in blank specifies no indorsee, and a bill indorsement in., j 1. i.i (. -L blank and so indorsed becomes payable to bearer. special indorse- (2) A special indorsement specifies the person to whom or to ^ ^ whose order the bill is to be payable. ib. B. M. (3) The provisions of this Part of this Act relating to a payee apply with the necessary modifications to an indorsee under a special indorsement. (4) When a bill has been indorsed in blank, any holder may convert the blank indorsement into a special indorsement by writing above the indorser's signature a direction to pay the bill to or to the order of himself or some other person. 36. (1) An indorsement is restrictive which prohibits the further Restrictive negotiation of the bill OP which expresses that it is a mere authority to*" orae [ Qen deal with the bill as thereby directed and not a transfer of the owner- n,, & &! ship thereof, as for example if a bill be indorsed " Pay D. only" or " Pay D. for the account of X." or " Pay D. or order for collection. (2) A restrictive indorsement gives the indorsee the right to receive payment of the bill and to sue any party thereto that his indorser could have sued but gives him no power to transfer his rights as indorsee unless it expressly authorize him to do so. (3) Where a restrictive indorsement authorizes further transfer, all subsequent indorsees take the bill with the same rights and subject to the same liabilities as the first indorsee under the restrictive indorsement. 37. (1) Where a bill is negotiable in its origin, it continues to be Negotiation of negotiable until it has been (a) restrictively indorsed, or (b) discharged di^nmikd biii. by payment or otherwise.. n. t. se. /^\ Tin J -L-ii i* i J -i i i,.,, lb. a. 8ft. (2) Where an overdue bill is negotiated it can only be negotiated subject to any defect of title affecting it at its maturity, and thenceforward no person who takes it can acquire or give a better title than that which the person from whom he took it had. (3) A bill payable on demand is deemed to be overdue within the meaning and for the purposes of this section when it appears on the face of it to have been in circulation for an unreasonable length of time. What is an unreasonable length of time for this purpose is a 0 question of fact. (4) Except where an indorsement bears date after the maturity of the bill, every negotiation is primd Jkcie deemed to have been effected before the bill was overdue. (5) Where a bill which is not overdue has been dishonoured, any person who takes it with notice of the dishonour takes it subject to any defect of title attaching thereto at the time of dishonour, but nothing in this sub-section shall affect the rights of a holder in due course.

11 1552 INSTRUMENTS ACT [54 YICT. " Tfte BitU <tf Exchange Act 1883 "s. 37. Negotiation of bill to party already liable thereon. 4S & 46 Vict c. 61 a. $!, Eights of the IP. s. 3St lb.s. 8& When presentment for acceptance IB necosbory. lb* t* 80. Time for presenting bill p&voble after XV* Si io* lb Rules as to 38. Where a bill is negotiated back to the drawer or to a prior indorser or to the acceptor, such party may subject to the provisions of this Part of this Act re-issue and further negotiate the bill, but he is not entitled to enforce payment of the bill against any intervening party to whom he was previously liable. 39. The rights and powers of the holder of a bill are as follows: (1) He may sue on the bill in his own name: (2) Where he is a holder in due course, he holds the bill free from any defect of title of prior parties as well as from mere personal defences available to prior parties among themselves, and may enforce payment against all parties liable on the bill: (3) Where his title is defective (a) if he negotiates the bill to a holder in due course, that holder obtains a good and complete title to the bill; and (b) if he obtains payment of the bill, the person who pays him in due course gets a valid discharge for the bill. (5) General Duties of the Holder. 40. (1) Where a bill is payable after sight, presentment for acceptance is necessary in order to fix the maturity of the instrument. (2) Where a bill expressly stipulates that it shall be presented for acceptance, or where a bill is drawn payable elsewhere than at the residence or place of business of the drawee, it must be presented for acceptance before it can be presented for payment. (3) In no other case is presentment for acceptance necessary in order to render liable any party to the bill. (4) Where the holder of a bill drawn payable elsewhere than at the place of business or residence of the drawee has not time with the exercise of reasonable diligence to present the bill for acceptance before presenting it for payment on the day that it falls due, the delay caused by presenting the bill for acceptance before presenting it for payment is excused and does not discharge the drawer and indorsers. 41. (1) Subject to the provisions of this Part of this Act, when a bill payable after sight is negotiated, the holder must either present it for acceptance or negotiate it within a reasonable time. (2) If he do not do so, the drawer and all indorsers prior to that holder are discharged. (3) In determining what is a reasonable time within the meaning of this section, regard shall be had to the nature of the bill the usage of trade with respect to similar bills and the facts of the particular case. 42. (1) A bill is duly presented for acceptance which is presented a^ptm l e"aiid r in accordance with the following rules: m.tnhmni"" 1 ' (a) The presentment must be made by or on behalf of the n,.s.4i. holder to the drawee or to some person authorized to lb. s. 41. accept or refuse acceptance on his behalf at a reasonable hour on a business day and before a bill is overdue: (b) Where a bill is addressed to two or more drawees who are not partners, presentment must be made to them all unless one has authority to accept for all, then presentment may be made to him only:

12 No ] INSTRUMENTS ACT (c) Where the drawee is dead, presentment may be made to Me " The AMI O/ personal representative: i3g3." (d) Where the drawee is insolvent, presentment may be made to bun or to his trustee: (e) Where authorized by agreement or usage, a presentment through the post-office is sufficient. (2) Presentment in accordance with these rules is excused and a bill may be treated as dishonoured by non-acceptance (a) Where the drawee is dead or insolvent or is a fictitious person or a person not having capacity to contract by bill: (5) Where after the exercise of reasonable diligence such presentment cannot be effected: (c) Where although the presentment has been irregular acceptance has been refused on some other ground. (3) The fact that the holder has reason to believe that the bill on presentment will be dishonoured does not excuse presentment. 43. When a bill is duly presented for acceptance and is not Non-acceptance accepted within the customary time, the person presenting it must J *-* treat it as dishonoured by non-acceptance. If he do not, the holder 0f ail. J^~ shall lose his right of recourse against the drawer and indorsers. 44. (1) A bill is dishonoured by non-acceptance Dishonour by (a) When it is duly presented for acceptance and such an S1S c * ptm,oe acceptance as is prescribed by this Part of this Act is ^n^ences. refuseci or cannot be obtained: or.l «( ) When presentment for acceptance is excused, and the bill is not accepted. (2) Subject to the provisions of this Part of this Act, when a bill is dishonoured by non-acceptance, an immediate right of recourse against the drawer and indorsers accrues to the holder, and no presentment for payment is necessary. 45. (1) The holder of a bill may refuse to take a qualified Dutiennato j i '. o i i j _ i i * I'/*T j i. L. qualified acceptance, and ii he does not obtain an unqualified acceptance may treat acceptances. the bill as dishonoured by non-acceptance. ** «u - {,&) Where a qualified acceptance is taken and the drawer or an indorser has not expressly or impliedly authorized the holder to take a qualified acceptance or does not subsequently assent thereto, such drawer or indorser is discharged from his liability on the bill. The provisions of this sub-section do not apply to a partial acceptance whereof due notice has been given. Where a foreign bill has been accepted as to part, it must be protested as to the balance. (3) When the drawer or indorser of a bill receives notice of a qualified acceptance and does not within a reasonable time express his dissent to the holder, he shall be deemed to have assented thereto. 46. Subject to the provisions of this Part of this Act, a bill must urnes as to be duly presented for payment. If it be not so presented, the drawer J^nS! enttor and indorsers shall be discharged. J*s«. *s, A bill is duly presented for payment which is presented in Ib - e accordance with the following rules: (1) Where the bill is not payable on demand, presentment must be made on the day it falls due:

13 1554 INSTRUMENTS ACT [54 VICT. " The JKU> oj (2) Where the bill li payable on demand,,hen subject to the 1883."*^ ' provisions of this Part of this Act presentment must be made within a reasonable time after its issue m order to render the drawer liable, and within a reasonable^ time after its indorsement m order to render the mdorser nanie: In determining what is a reasonable time, regard shall be had to the nature of the bill the usage of trade with regard to similar bills and the facts of the particular case. (3) Presentment must be made by the holder or by some person authorized to receive payment on his behalf at a reasonable hour on a business day, at the proper place as hereinafter defined, either to the person designated by the bill as payer or to some person authorized to pay or refuse payment on his behalf if with the exercise of reasonable diligence such person can there be found. Eicusestor delay 0r non. (4) A bill is presented at the proper place (a) Where a place of payment is specified in the bill and the bill is there presented: (b) Where no place of payment is specified but the address of the drawee or acceptor is given in the bill and the bill is there presented: (c) Where no place of payment is specified and no address given and the bill is presented at the drawee's or acceptor's place of business if known and if not at his ordinary residence if known: (d) In any other case if presented to the drawee or acceptor wherever he can be found or if presented at his lastknown place of business or residence: (5) Where a bill is presented at the proper place and after the exercise of reasonable diligence no person authorized to pay or refuse payment can be found there, no further presentment to the drawee or acceptor is required: (6) Where a bill is drawn upon or accepted by two or more persons who are not partners and no place of payment is specified, presentment must be made to them all: (7) Where the drawee or acceptor of a bill is dead and no place of payment is specified, presentment must be made to a personal representative if such there be and with the exercise of reasonable diligence he can be found: (8) Where authorized by agreement or usage, a presentment through the post-office is sufficient. 47, (1) Delay in making presentment for payment is excused _!,- n. J I : J v ',f.,i- v, T, J +!,,± 1 *P i-v^ presentment for wnen tne delay is caused by circumstances beyond tne control or tne payment holder and not imputable to his default misconduct or negligence. 45 &'46 vict When the eause of delay ccasee so operate, pressntment muss be made o. ei & #. with reasonable diilgence. (2) Presentment for payment is dispensed with (a) Where after the exercise of reasonable diligence presentment as required by this Part of this Act cannot be effected:

14 No ] INSTRUMENTS ACT The fact that the holder has reason to believe that the bill T»«EMS of will on presentment be dishonoured does not dispense f^«e3e Aet with the necessity for presentments (fi) Where the drawee is a fictitious person: (c) As regards the drawer where the drawee or acceptor is not bound as between himself and the drawer to accept or pay the bill and the drawer has no reason to believe that the bill would be paid if presented: (rf) As regards an indorser where the bill was accepted or made for the accommodation of that indorser and he has no reason to expect that the bill would be paid if presented: (e) By waiver of presentment express or implied. 48. (1) A bill is dishonoured by non-payment (a) when it is Dishonour by duly presented for payment and payment is refused or cannot be ^n^p^ment obtained, or (b) when presentment is excused and the bill is overdue «& «vict. and unpaid. * B1 * * 7 ' (2) Subject to the provisions of this Part of this Act, when a bill is dishonoured by non-payment, an immediate right of recourse against the drawer and indorsers accrues to the holder. 49. Subject to the provisions of this Part of this Act, when anotice01 bill has been dishonoured by non-acceptance or by non-payment, notice effect"^ of dishonour must be given to the drawer, and each indorser and any non-notice. drawer or indorser to whom such notice is not given is discharged. Ib ^ i& Provided that-^- (1) Where a bill is dishonoured by non-acceptance and notice of dishonour is not given, the rights of a holder in due course subsequent to the omission shall not be prejudiced by the omission: (2) Where a bill is dishonoured by non-acceptance and due notice of dishonour is given, it shall not be necessary to give notice of a subsequent dishonour by non-payment unless the bill shall in the meantime have been accepted. 50. Notice of dishonour in order to be valid and effectual must be &&&& to given in accordance with the following rules: dishonour. (1) The notice must be given by or on behalf of the holder or n>-» >. by or on behalf of an indorser who at the time of giving Ib - " ***, it is himself liable on the bill: (2) Notice of dishonour may be given by an agent either in his own name or in the name of any party entitled to give notice whether that party be his principal or not: (3) Where the notice is jriven by or on behalf of the holder, it enures for the benefit of all subsequent holders and all prior indorsers who have a right of recourse against the party to whom it is given: (4) Where notice is given by or on behalf of an indorser entitled to give notice as hereinbefore provided, it enures for the benefit of the holder and all indorsers subsequent to the party to'whom notice is given: (a) See Oreig and Murray Ltd. v. Taylor, 15 V.L.R., 86.

15 1556 INSTKUMENTS ACT [54 VICT. " The sm»s (5) The notice may be given in writing or by personal communi- ExehpgcAet cation and may be given in any terms which sufficiently identify the bill and intimate that the bill has been dishonoured by non-acceptance or non-payment: (6) The return of a dishonoured bill to the drawer or an indorser is in point of form deemed a sufficient notice of dishonour: (7) A written notice need not be signed and an insufficient written notice may be supplemented and validated by verbal communication. A misdescription of the bill shall not vitiate the notice unless the party to whom the notice is given is in fact misled thereby: (8) Where notice of dishonour is required to be given to any person, it may be given either to the party himself or to his agent in that behalf: (9) Where the drawer or indorser is dead and the party giving notice knows it, the notice must be given to a personal representative if such there be and with the exercise of reasonable diligence he can be found: (10) Where the drawer or indorser is bankrupt or insolvent, notice may be given either to the party himself or to the trustee or assignee: (11) Where there are two or more drawers or indorsers who are not partners, notice must be given to each of them unless one of them has authority to receive such notice for the others. (12) The notice may be given as soon as the bill is dishonoured and must be given within a reasonable time thereafter: In the absence of special circumstances notice is not deemed to have been given within a reasonable time unless (a) Where the person giving and the person to receive notice reside in the same place, the notice is given or sent off in time to reach the latter on the day after the dishonour of the bill: (b) Where the person giving and the person to receive notice reside in different places, the notice is sent off on the day after the dishonour of the bill if there be a post at a convenient hour on that day, and if there be no such post on that day then by the next post thereafter: (13) Where a bill when dishonoured is in the hands of an agent, he may either himself give notice to the parties liable on the bill or he may give notice to his principal. If he give notice to his principal, he must do so within the same time as if he were the holder, and the principal upon receipt of such notice has himself the same time for giving notice as if the agent had been an independent holder: (14) Where a party to a bill receives due notice of dishonour, he has after the receipt of such notice the same period of time for giving notice to antecedent parties that the holder has after the dishonour: (15) Where a notice of dishonour is duly addressed and posted, the sender is deemed to have given due notice of dishonour notwithstanding any miscarriage by the post-office.

16 No ] INSTRUMENTS ACT (1) Delay in giving notice of dishonour is excused where the TheButto/ delay is caused by circumstances beyond the control of the party giving fm^». m Act notice and not imputable to his default misconduct or negligence. Excuses for tmd When the cause of delay ceases to operate, the notice must be given 3eh^otl<!e with reasonable diligence. *s & 4& vict. (2) Notice of dishonour is dispensed with (a) When after the exercise of reasonable diligence notice as required by this Part of this Act cannot be given to or does not reach the drawer or indorser sought to be charged: ( ) By waiver expressed or implied. Notice of dishonour may be waived before the time of giving notice has arrived or after the omission to give due notice: (c) As regards the drawer in the following cases, namely, (1) where drawer and drawee are the same person, (2) where the drawee is a ffctitious person or a person not having capacity to contract, (3) where the drawer is the person to whom the bill is presented for payment, (4) where the drawee or acceptor is as between himself and the drawer under no obligation to accept or pay the bill, (5) where the drawer has countermanded payment: (d) As regards the indorser in the following cases, namely, (1) where the drawee is a fictitious person or a person not having capacity to contract and the indorser was aware of the fact at the time he indorsed the bill, (2) where the indorser is the person to whom the bill is presented for payment, (3) where the bill was accepted or made for his accommodation. 52. (1) Where an inland bill has been dishonoured, it may if the noting or holder think fit be noted for non-acceptance or non-payment as the case P roteat of bm - may be; but it shall not be necessary to note or protest any such bill ^ *' B1' in order to preserve the recourse against the drawer or indorser. (2) Where a foreign bill appearing on the face of it to be such has been dishonoured by non-acceptance, it must be duly protested for nonacceptance ; and where such a bill which has not been previously dishonoured by non-acceptance is dishonoured by non-payment, it must be duly protested for non-payment. If it be not so protested, the drawer and indorsers are discharged. Where a bill does not appear on the face of it to be a foreign bill, protest thereof in case of dishonour is unnecessary. (3) A bill which has been protested for non-acceptance may be subsequently protested for non-payment. (4) Subject to the provisions of this Part of this Act, when a bill is noted or protested, it must be noted on the day of its dishonour. When a bill has been duly noted, the protest may be subsequently extended as of the date of the noting. (5) Where the acceptor of a bill becomes insolvent or suspends payment before it matures, the holder may cause the bill to be protested for better security against the drawer and indorsers.

17 1558 INSTRUMENTS ACT [54 VICT. "TheDiRatf (6) A bill must be protested at the place where it is dishonoured. JixckangeAct "p_-_;j J J-V.«J " JTrOvlueU Dllill (a) When a bill is presented through the post-office and returned by post dishonoured, it may be protested at the place to which it is returned and on the day of its return if received during business hours, and if not received during business hours then not later than the next business day: (b) When a bill drawn payable at the place of business or residence of some person other than the drawee has been dishonoured by non-acceptance, it must be protested for non-payment at the place where it is expressed to be payable, and no further presentment for payment to or demand on the drawee is necessary. (7) A protest must contain a copy of the bill and must be signed by the notary making it and must specify (a) The person at whose request the bill is protested: (b) The place and date of protest the cause or reason for protesting the bill the demand made and the answer given if any or the fact that the drawee or acceptor could not be found. (8) Where a bill is lost or destroyed or is wrongly detained from the person entitled to hold it protest may be made on a copy or written particulars thereof. (9) Protest is dispensed with by any circumstance which would dispense with notice of dishonour. Delay in noting or protesting is excused when the delay is caused by circumstances beyond the control of the holder and not imputable to his default misconduct or negligence. When the cause of delay ceases to operate, the bill must be noted or protested with reasonable diligence. Duties of holder 53. (1) When a bill is accepted generally, presentment for pay- ment is not necessary m order "Co render the acceptor liable. (2) When by the terms of aquahfied acceptance presentment for payment is required, the acceptor in the absence of an express stipula- tion to that effect is not discharged by the omission to present the bill for payment on the day that it matures. (3) In order to render the acceptor of a bill liable, it is not necessary to protest it or that notice of dishonour should be given to him. (4) Where the holder of a bill presents it for payment, he shall exhibit the bill to the person from whom he demands payment, and when a bill is paid the holder shall forthwith deliver it up to the party paying it. d wee or 5J 0, B a 45&«vi(;t. c.61«. is. (6) Liabilities of Parties. Funds in hands &4* A bill of itself does not operate as an assignment of funds of drawee. j n ^e han ( jg of the drawee available for the payment thereof, and the nj^jj drawee of a bill who does not accept as required by this Part of this Act is not liable on the instrument. Liability of 65. The acceptor of a bill by accepting it acceptor. yi\ Tl i_l j. 1 *11 *i J* j, j_t_ A p l * im 54. ib.s. M. (1) ibngages tnat ne will pay it according to tne tenor oi his acceptance:

18 No ] INSTRUMENTS ACT (2) Is precluded from denying to a holder in due course The mitx»/ (a) The existence of the drawer the genuineness of his sig- f^^nffe Act nature and his capacity and authority to draw the bill: (b) In the case of a bill payable to drawer's order the then capacity of the drawer to indorse but not the genuineness or validity of his indorsement: (tf) In the case of a bill payable to the order of a third person, the existence of the payee and his then capacity to indorse but not the genuineness or validity of his indorsement. 56. (1) The drawer of a bill by drawing it Liability of / \ m ^-i. j j.,, i i, i drawer or (a) imgages that on due presentment it snail be accepted indorser. and paid according to its tenor, and that if it be n - * 6S - dishonoured he will compensate the holder or any in- J*^* 6^"*" dorser who is compelled to pay it, provided that the requisite proceedings on dishonour be duly taken: (b) Is precluded from denying to a holder in due course the existence of the payee and his then capacity to indorse. (<&) The indorser of a bill by indorsing it (a) Engages that on due presentment it shall be accepted and paid acordmg to its tenor, and that if it be dishonoured he will compensate the holder or a subsequent indorser who is compelled to pay it, provided that the requisite proceedings on dishonour be duly taken: (b) Is precluded from denying to a holder in due course the genuineness and regularity in all respects of the drawer's signature and all previous indorsements: (c) Is precluded from denying to his immediate or a subsequent indorsee that the bill was at the time of his indorsement a valid and subsisting bill, and that he had then a good title thereto. 57. Where a person signs a bill otherwise than as drawer or stranger Biennng acceptor, he thereby incurs the liabilities of an indorser to a holder in {^"oreerf ** due course. n>. s. ee. t Ib. ft*66* 58. Where a bill is dishonoured, the measure of damages, which Measure of shall be deemed to be liquidated damages, shall be as foiiows; pirtiesto (1) JLhe holder may recover from any party liable on the bill, and the drawer who has been compelled to pay the bin n, s * may recover from the acceptor, and an indorser who has been compelled to pay the bill may recover from the acceptor or from the drawer or from a prior indorser (a) The amount of the bill: (#) Interest thereon from the time of presentment for payment if the bill is payable on demand, and from the maturity of the bill in any other case: (c) The expenses of noting, or when protest is necessary and the protest has been extended the expenses of protest: (2) In the case of a bill which has been dishonoured abroad, in lieu of the above damages the holder may recover from the drawer or an indorser, and the-drawer or an indorser VOL. II. 3 c

19 1560 INSTRUMENTS ACT [54 VICT. " The Mite of Exchange Act 1S8S." Transferor by delivery and Ibt s. &S. 45 $L 46 Vict. c. 61 s. 5S. Payment in lb. s. 60+ Banker paying demand draft whereon inducement is forged. /&+ ft. 60. lb. s. oo. Acceptor the holder at who has been compelled to pay the bill may recover from any party liable to him the amount of the bill with re-exchange and interest thereon until the time of payment : (3) Where by this Part of this Act interest may be recovered as damages, such interest may if justice require it be withheld wholly or in part, and where a bill is expressed to be payable with interest at a given rate interest as damages may or may not be given at the same rate as interest proper. 59. (1) Where the holder of a bill payable to bearer negotiates it by delivery without indorsing it, he is called a " transferor by delivery." (2) A transferor by delivery is not liable on the instrument. (3) A transferor by delivery who negotiates a bill thereby warrants to his immediate transferee being a holder for value that the bill is what it purports to be that he has a right to transfer it and that at the time of transfer he is not aware of any fact which renders it valueless. (7) Discharge of Bill. 60. (1) A bill is discharged by payment in due course by or on behalf of the drawee or acceptor. " Payment in due course" means payment made at or after the maturity of the bill to the holder thereof in good faith and without notice that his title to the bill is defective. (2) Subject to the provisions hereinafter contained, when a bill is paid by the drawer or an indorser it is not discharged; but (a) Where a bill payable to or to the order of a third party is paid by the drawer, the drawer may enforce payment thereof against the acceptor but may not re-issue the bill: (b) Where a bill is paid by an indorser or where a bill payable to drawer's order is paid by the drawer, the party paying it is remitted to his former rights as regards the acceptor or antecedent parties, and he may if he thinks fit strike out his own and subsequent indorsements and again negotiate the bill. (3) Where an accommodation bill is paid in due course by the party accommodated, the bill is discharged. 61. When a bill payable to order on demand is drawn onabanker and the banker on whom it is drawn pays the bill in good faith and in the ordinary course of business, it is not incumbent on the banker to show that the indorsement of the payee or any subsequent indorsement was made by or under the authority of the person whose indorsement it purports to be, and the banker is deemed to have paid the bill in due course although such indorsement has been forged or made without authority. 62. When the acceptor of a.bill is or becomes the holder of it at or after its maturity in his own right, the bill is discharged. Ib.1,01. _...,. 1, 1! j. i n, A, -. j. -. i ib, s. ei. 63. (1) W nen tne holder ol a bill at or alter its maturity abso- Express waiver. lutely and unconditionally renounces his rights against the acceptor, it>. s. sz. y^ ^jj is discharged. lb. 9, us. v j

20 ( No ] INSTRUMENTS ACT The renunciation must be in writing unless the bill is delivered up * yfe Bm q/ to the acceptor. fm!"^" Aa (2) The liabilities of any party to a bill may in like manner be renounced by the holder before at or after its maturity, but nothing in this section shall affect the rights of a. holder in due course without notice of the renunciation. 64. (1) Where a bill is intentionally cancelled by the holder cancellation. or his agent and the cancellation is apparent thereon, the bill is dis- J ** * <& charged. ofm^d^* (2) In like manner any party liable on a bill may be discharged by the'intentional cancellation of his signature by the holder or his agent. In such case any indorser who would have had a right of recourse against the party whose signature is cancelled is also discharged. (3) A. cancellation made unintentionally or under a mistake or without the authority of the holder is inoperative; but where a bill or any signature thereon appears to have been cancelled, the burden of proof lies on the party who alleges that the cancellation was made unintentionally or under a mistake or without authority. 65. (1) Where a bill or acceptance is materially altered without Alteration of the assent of all parties liable on the bill, the bill is avoided except J',L. as against a party who has himself made authorized or assented to the n,. a.«! alteration and subsequent indorsers. Provided that where a bill has been materially altered but the alteration is not apparent and the bill is in the hands of a holder in due course, such holder may avail himself of the bill as if it had not been altered and may enforce payment of it according to its original tenor. (2) In particular the following alterations are material, namely, any alteration of the date the sum payable the time of payment the place of payment, and where a bill has been accepted generally the addition of a place of payment without the acceptor's assent. (8) Acceptance and Payment for Honour. 66. (1) Where a bill of exchange has been protested for dishonour Acceptance ror by non-acceptance or protested for better security and is not overdue, {j t t ș " piro any person not being a party already liable thereon may with the con- ib. *. C6. sent of the holder intervene and accept the bill supra protest for the Ib -* C6 * honour of any party liable thereon or for the honour of the person for whose account the bill is drawn. (2) A bill may be accepted for honour for part only of the sum for which it is drawn. (3) An acceptance for honour supra protest in order to be valid must- (a) Be written on the bill and indicate that it is an acceptance for honour: (b) Be signed by the acceptor for honour. (4) Where an acceptance for honour does not expressly state for whose honour it is made, it is deemed to be an acceptance for the honour of the drawer. (5) Where a bill payable after sight is accepted for honour, its maturity is calculated from the date of the noting for non-acceptance, and not from the date of the acceptance for honour. J C 2

21 1562 INSTRUMENTS ACT [54 VICT. Exchange Act Liability of acceptor for honour. 45 & 46 Vict. c. 61 s Presentment to acceptor for honour. lb. 8, 67. lb. s. 67. Payment for honour supra protest /p. s. OS. lb. s. OS. 67. (1) The acceptor for honour of a bill by accepting it engages that he will on due presentment pay the bill according to the tenor of his acceptance if it is not paid by the drawee, provided it has been duly presented for payment and protested for non-payment and that he receives notice of these facts.. (2) The acceptor for honour is liable to the holder and to all parties to the bill subsequent to the party for whose honour he has accepted. 68. (1) Where a dishonoured bill has been accepted for honour supra protest or contains a reference in case of need, it must.be protested for non-payment before it is presented for payment to the acceptor for honour or referee in case of need. (2) Where the address of the acceptor for honour is in the same place where the bill is protested for non-payment, the bill must be presented to him not later than the day following its maturity; and where the address of the acceptor for honour is in some place other than the place where it was protested for non-payment, the bill must be forwarded not later than the day following its maturity for presentment to him. (3) Delay in presentment or non-presentment is excused by any circumstance which would excuse delay in presentment for payment or non-presentment for payment. (4) When a bill of exchange is dishonoured by the acceptor for honour, it must be protested for non-payment by him. 69. (1) Where a bill has been protested for non-payment, any person may intervene and pay it supra protest for the honour of any party liable thereon or for the honour of the person for whose account the bill is drawn. (2) Where two or more persons offer to pay a bill for the honour of different parties, the person whose payment will discharge most parties to the bill shall have the preference. (3) Payment for honour supra protest in order to operate as such and not as a mere voluntary payment, must be attested by a notarial act of honour, which may be appended to the protest or form an extension of it. (4) The notarial act of honour must be founded on a declaration made by the payer for honour or his agent in that behalf declaring his intention to pay the bill for honour and for whose honour he pays. (5) Where a bill has been paid for honour, all parties subsequent to the party for whose honour it is paid are discharged, but the payer for honour is subrogated for and succeeds to both the rights and duties of the holder as regards the party for whose honour he pays and all parties liable to that party. (6) The payer for honour on paying to the holder the amount of the bill and the notarial expenses incidental to its dishonour is entitled to receive both the bill itself and the protest. If the holder do not on demand deliver them up, he shall be liable to the payer for honour in damages. (7) Where the holder of a bill refuses to receive payment supra protest, he shall lose his right of recourse against any party who would have been discharged by such payment.

22 No ] INSTRUMENTS ACT (9) Lost Instruments, 70. Where a bill has been lost before ill is overdue, the person who " ^* sat) of.,. J-U u^u«.-.e '4.., < 1 J.^ j-l, J i. ~- it* IL L'li Exchange Act was tne nolder ot it may apply to the drawer to give turn another bill is83"s/w. of the same tenor, giving security to the drawer if required to indemnify Hower-a right to v i n i_ j. - ii i -n 11 j j. i i duplicate of lost nim against all persons whatever m case the bill alleged to have been MI. lost shall be found again. J5 * 46 X i<:t -, c. 61 s. 69, If the drawer on request as aforesaid refuses to give such duplicate bill TIe mftv hp corrmplled to do «n 71. In any action or proceeding upon a bill the Supreme Court or Action on tost a judge thereof may order that the loss of the instrument shall not be ^ set up, provided an indemnity be given to the satisfaction of the court Ib>6 T0 or judge against the claims of any other person upon the instrument in question. (10) Sill in a Set. 72. (1) Where a bill is drawn in a set, each part of the set being RulesastoBetB, numbered and containing a reference to the other parts, the whole of the J*- * w. parts constitute one bill. Ib. s.7i. (2) Where the holder of a set indorses two or more parts to different persons, he is liable on every such part, and every mdorser subsequent to him is liable on the part he has himself indorsed as if the said parts were separate bills. (3) Where two or more parts of a set are negotiated to different holders in due course, the holder whose title first accrues is as between such holders deemed the true owner of the bill; but nothing in this sub-section shall affect the rights of a person who in due course accepts or pays the part first presented to him. (4) The acceptance may be written on any 1 part, and it must be written on one part only. If the drawee accepts more than one part and such accepted parts get into the hands of different holders in due course, he is liable on every such part as if it were a separate bill. (5) When the acceptor of a bill drawn in a set pays it without requiring the part bearing his acceptance to be delivered up to him and that part at maturity is outstanding in the hands of a holder in due course, he is liable to the holder thereof. (6) Subject to the preceding rules, where any one part of a bill drawn in a set is discharged by payment or otherwise, the whole bill is discharged. (11) Conflict of Laws. 73. Where a bill drawn in one. country is negotiated accepted or B U I«Swhom payable in another, the rights duties and liabilities of the parties laws conalct - thereto are determined as follows:,. ' lb. s. 72. (1) The validity of a bill as regards requisites in form is determinprl hv rhp law of thi» plnf p of irhiie and flip validirv as rptrnrdi rpnnisif'.p'* in form of flip srinprvpnirifl' contraftl RTi<»h us- fipcpnk-ncp fir rndorapmetii- or fwvpntanrp sunrft nrotoq't i<i rtpfprminpfl bv the lflw nf thf> r>wp where Sllch enntrart was inarip

23 1564 INSTRUMENTS ACT [54 VICT. " The Biiis of Provided ttat 1883." ( a ) Whrre a. blli is ssuued oto fv Victoria ii sn noi invalid by reason only that it is not stamped in accordance with the law of the place of issue: (b) Where a bill issued out of Victoria conforms as regards requisites in form to the law of Victoria, it may for the purpose of enforcing payment thereof be treated as valid as between all persons who negotiate hold or become parties to it in Victoria. (2) Subject to the provisions of this Part of this Act, the interpretation of the drawing indorsement acceptance or acceptance supra protest of a bill is determined by the law of the place where such contract is made. Provided that where an inland bill is indorsed in a foreign country the indorsement shall as regards the payer be interpreted according to the law of Victoria. (3) The duties of the holder with respect to presentment for acceptance or payment and the necessity for or sufficiency of a protest or notice of dishonour or otherwise are determined by the law of the place where the act is done or the bill is dishonoured. (4) Where a bill is drawn out of but payable in Victoria and the sum payable is not expressed in the currency of Victoria, the amount shall in the absence of some express stipulation be calculated according to the rate of exchange for sight drafts at the place of'payment on the day the bill is payable: (5) Where a bill is drawn in one country and is payable in another, the due date thereof is determined according to the law of the place where it is payable. DIVISION 2. CHEQUES ON A BANKEE. (1) Generally. Cheque defined. 74. A cheque is a bill of exchange drawn on a banker payable on ib. g, v& demand. c?me?xa. ot * Except as otherwise provided in this Division, the provisions of this Part of this Act applicable to a bill of exchange payable on demand apply to a cheque. presentment of 75. Subject to the provisions of this Part of this Act cheque for /, \ ITVL I * > L I S* i_ 'J_I payment. (i) wnere a cheque is not presented tor payment witnm a ib ' «7 t * reasonable time of its issue and the drawer or the per- Ib ' * 74 * son on whose account it is drawn had the right at the time at which the presentment ought to have been made as between him and the banker to have the cheque paid and suffers actual damage through the delay he is discharged to the extent of such damage, that is to say, to the extent to which such drawer or person is a creditor of such banker to a larger amount than he would have been had such cheque been paid. (2) In determining what is a reasonable time, regard shall be had to the nature of the instrument the iisage of trade and of bankers and the foots of the particular case.

24 No ] INSTRUMENTS ACT (3) The holder of such, cheque as to which such drawer or person The ehu of o n3e Aa is discharged shall be a creditor in lieu of such drawer %ls % or person of such banker to the extent of such discharge and entitled to recover the amount from him. 76. The duty and authority of a banker to pay a cheque drawn On Revocation of him by Ms customer are determined by authority. (1) Countermand of payment. n.g.n. (2) inotice Or the customer s death. P\ 1?K (2) Crossect Kjiivipics. 77. (1) Where a cheque bears across its face an addition of- fn^tu^eroiines (a) The words "and company" or any abbreviation thereof deflned. between two parallel transverse lines either with or with- "'* * 76 - out the words not negotiable: or (b) Two parallel transverse lines simply either with or without the words "not negotiable" that addition constitutes a crossing, and the cheque is crossed generally. (2) Where a cheque bears across its face an addition of the name of a banker either with or without the words "not negotiable," that addition constitutes a crossing, and the cheque is crossed specially and to that banker. 78. (1) A cheque may be crossed generally or specially by the crossing by j\ xifi TTT --., QJrLiwcr r m vor drawer. issue. (2) Where a cheque is uncrossed, the holder may cross it generally it>. *. 77. or specially. _ ib.a.77. (3) Where a cheque is crossed generally, the holder may cross it specially. (4) Where a cheque is crossed generally or specially, the holder may add the words "not negotiable." (5) Where a cheque is crossed specially, the banker to whom it is crossed may again cross it specially to another banker for collection. (6) Where an uncrossed cheque or a cheque crossed generally is sent to a banker for collection, he may cross it specially to himself. 79. A crossing authorized by this Part of this Act is a material crossing a, part of the cheque; it shall not be lawful for any person to obliterate cheque or except as authorized by this Part of this Act to add to or alter the ib. <.78. crossing. Ib - s (1) Where a cheque is crossed specially to more than one Duttrs of banker banker except when crossed to an agent for collection being a banker, cheques the banker on whom it is drawn shall refuse payment thereof. it.«. 79. (2) Where the banker on whom a cheque is drawn which is so lb -' TO. crossed nevertheless pays the same or pays a cheque crossed generally otherwise than to a banker or if crossed specially otherwise than to the banker to whom it is crossed or his agent for collection being a banker,.he is liable to the true owner of the cheque for any loss he may sustain owing to the cheque having been so paid. Provided that where a cheque is presented for payment which does not at the time of presentment appear to be crossed or to have had a crossing which has been obliterated or to have been added to or altered otherwise than as authorized by this Part of this Act, the banker paying the cheque in good faith and without negligence shall

25 1566 INSTRUMENTS ACT [54 VICT " The mm of Exchange Act ISBS." Protection to ikuiker and drawer where cheque is lb. s & 46 Vict, c. 61 s. SO* Effect of crossing on holder. lb s. 81. lb. s. 81. Protection to collecting lb. s. 82. lb. & 33. Promissory note dell nod. lb. #+ 83+ lb. & 83. Delivery necessary. lb. s. 84. lb. s. Si. Joint and several notes. It. & 85. lb. s 85. Note payable i' rtcinand. lb. ii 38. lb. ti SO* not be responsible or incur any liability nor shall the payment be questioned by reason of the cheque having been crossed or of the crossing having been obliterated or having been added to or altered otherwise than as authorized by this Part of this Act and of payment having been made otherwise than to a banker or to the banker to whom the cheque is or was crossed or to his agent for collection being a banker as the case may be. 81. Where the banker on whom a crossed cheque is drawn in good faith and without negligence pays it if crossed generally to a banker and if crossed specially to the banker to whom it is crossed or his agent for collection being a banker, the banker paying the cheque and if the cheque has come into the hands of the payee the drawer shall respectively be entitled to the same rights and be placed in the same position as if payment of the cheque had been made to the true owner thereof. 82. Where a person takes a crossed cheque which bears on it the words " not negotiable," he shall not have and shall not be capable of giving a better title to the cheque than that which the person from whom he took it had. 83. Where a banker in good faith and without negligence receives payment for a customer of a cheque crossed generally or specially to himself and the customer has no title or a defective title thereto, the banker shall not incur any liability to the true owner of the cheque by reason only of having received such payment. DIVISION 3. PBOMISSORY NOTES. 84. (1) A promissory note is an unconditional promise in writing made by one person to another signed by the maker engaging to pay on demand or at a fixed or determinable future time a sum certain in money to or to the order of a specified person or to bearer. (2) An instrument in the form of a note payable to maker's order is not a note within the meaning of this section unless and until it is indorsed by the maker. (3) A note is not invalid by reason only that it contains also a pledge of collateral security with authority to sell or dispose thereof. (4) A note which is or on the face of it purports to be both made and payable within Australia Tasmania New Zealand or the Fiji Islands is an inland note. Any other note is a foreign note. 85. A promissory note is inchoate and incomplete until delivery thereof to the payee or bearer. 86. (1) A promissory note may be made by two or more makers, and they may be liable thereon jointly or jointly and severally according to its tenor. (2) Where a note runs " I promise to pay " and is signed by two or more persons, it is deemed to be their joint and several note. 8*?. (1) Where a note payable on demand has been indorsed, it must be presented for payment within a reasonable time of the indorsement. If it be not so presented, the indorser is discharged. (2) In determining what is a reasonable time regard shall be had to the nature of the instrument the usage of trade and the facts.of the particular case.

26 No ] INSTRUMENTS ACT (3) Where a note payable on demand is negotiated, it is not TkeBmo/ deemed to be overdue for the purpose of affecting the holder with lass.e 96 "* defects of title of which he had no notice by reason that it appears that a reasonable time for presenting it for payment has elapsed since its issue. 88. (1) Where a promissory note is in the body of it made pay- Presentment able at a particular place, it must be presented for payment at that payment 1 place in order to render the maker liable. In any other case present- lh - s ment for payment is not necessary in order to render the maker liable, ^eit?at 1!*' (2) Presentment for payment is necessary in order to render the indorser of a note liable. (3) Where a note is in the body of it made payable at a particular place, presentment at that place is necessary in order to render an indorser liable ; but when a place of payment is indicated by way of memorandum only, presentment at that place is sufficient to render the indorser liable, but a presentment to the maker elsewhere if 'sufficient in other respects shall also suffice. 89. The maker of a promissory note by making it Liability of /-*\ Tji I) - "V MI v. *. j. A! - maker, (i) JLngages that he will pay it according to its tenor: lb Aga (2) Is precluded from denying to a holder in due course the it. e. SB. existence of the payee and his then capacity to indorse. 90. (1) Subject to the provisions in this Division of this Part and Application o' "U ±1- A' *j j i ' '.,,. -.,, provisions of except as by tins section provided, the provisions or this Part ot this Division one to A A _~1 A*~ ~ A~ A.*11 A* L. ~1 1J.1 Al J*A! notes, Act relating to bills ot exchange apply with the necessary mooinca- n(31l tions to promissory notes. ib.s.89. (2) In applying those provisions the maker of a note shall be deemed to correspond with the acceptor of a bill, and the first indorser of a note shall be deemed to correspond with the drawer of an accepted bill payable to drawer's order. (3) The following provisions as to bills do not apply to notes, namely, provisions relating to.(a) Presentment for acceptance: (b\ Acceptance: (c) Acceptance supra protest: (d) Bills in a set. (4) Where a foreign note is dishonoured, protest thereof is unnecessary. DIVISION 4.^ SUMMARY PROCEEDINGS. 91. In the interpretation of this Division of this Part of this Act interpretation, and the provisions thereof, the term "bill" shall mean and include bill wm/and&c. of exchange and promissory note. statute iw net A~ A-^ _ vil J 'AT-- _ AT. JA Form of action Wis. Any action upon a bill commenced within six months alter upon wiisdue the same shall have become due may be by writ of summons in the d J S - J? A * J AL. CI J CI L J 1 A Al * A JS>. $.19. torm contained in the becond bcneaule to this Act and indorsed as Ag&wvict. therein mentioned/") And it shall be lawful for the plaintiff on filing an «a! e -* affidavit of personal service of such writ or an order for leave to proceed schedule. (a) Where the writ in an action on a bill of exchange was indorsed in accordance with the form in the Second Schedule hereto: Held, per Williams, J., that it was a specially indorsed writ within the meaning of Appendix C, section 4, " Supreme Covirt Sides 1884," and that defendant must deliver a defence. Goodwin v. Heanchctw-, 6 A.L.T., 160; see also McVean v. Miller, 6 A.L.T., 268; Boss v. Taylor, 7 A.L.T., 145. All writs should be headed " Statement of claim "'as well as signed. WhUthsea Land Co. v, Ure, 12 A.L.T., 28.

27 1568 INSTRUMENTS ACT [54 VICT. TAC imtru- as provided by any law or rule of practice now or hereafter to be in IstatutTis&i force end a copy of the writ of summons ana tht indorsements tsereon, in case the defendant shall not have obtained leave to appear and have appeared to such writ according to the exigency thereof, at once to sign Third Schedule, final judgment in the form contained in the Third Schedule to this Act (on which judgment no proceeding in error shall lie) for any sum not exceeding the sum indorsed on the writ together with the interest at the rate specified (if any) to the date of the judgment, and the fixed sum hereinafter mentioned for costs (exclusive of mileage) that is to say in town causes four guineas, and in country or agency causes five pounds (unless the plaintiff claim more than such fixed sum, in which case the costs shall be taxed in the ordinary way); and the plaintiff may upon such judgment issue execution forthwith. judge it he shaii 93. A. judere of the Supreme Court shall upon application where sec cause may., i A i. *T *.I A *I A.1 n i r\ L A * allow aijpeai-- the defendant resides within fifty miles ot the Ueneral rost Uince Mtioi^tobo nnd within eight and where the defendant resides beyond that distance jftta within sixteen days from such service give leave to appear to such ls&wvitt c.67s. w aa^ t defend the action, on the defendantpaying into court the ssm indorsed on the wrii or u Pon afffdavits satisfactory to the eudge which disclose a defence or such facts as would make it incumbent on the holder to prove consideration or such other facts as the judge may deem sufficient to_ support theapplication; and on such terms as to Judge may allow 94, After judgment the court or a judge may under special defended Sfter circumstances set aside the judgment and if necessary stay or set aside jud^neiitifhe execution and may give leave to appear to the writ and to defend the 7b.,. 21. action if it shall appear to be reasonable to the court or judge so to do, it>. s, 3. and on such terms as to the court or judge may seem just> J Bill to bo 95. In any proceedings under this Division of this Part of this 0 ^ ^ ^ ict > it shall ^e competent to the court or a judge to order the bill nnd plaintiff to sought to be proceeded upon to be forthwith deposited with an officer jr. MQUrity f r of ^ co ii rt p and further ^ Mder that all eedings shall be stayed ii/. s. 22. until the plaintiff shall have given security for the costs thereof. lb. a. 4. namlf&'c'lriay tv f th 01 everydisiionoure DI s a h ye the same be recovered reme ies or e rec veiy o e expenses in urre in no ng same «J or non-acceptance or non-paymen or o erwise y reason o sucii ^;f ^honour as he has under this Act for tht recovery of the amount of 01 such bill. one writ maybe 97. The holder ot any biff may if he think ht issue one writ of oil the parties to D ^ r D 1S i 1011 l s r gal a a MI, or any number of the parties to such bill; ant such srit ta summons ib. 3 e. +i! commencement ot an action or actions against the parties therein named respectively; and alf subsequent proceedings against such respective parties shaft be in like manner (so tar as may be) as 11 (a) A judee has power to set aside a iudirment (c) Where a writ was issued against the drawer obtained under this Division without anv affidavit and acceptor of a bill and judgment by default of merits being filed -Grew v Hittchinaoii 11 was signed against the acceptor Held that the A L.T. 96 ' affidavit of service being intituled as acainst both (6) This order should be made unon notice and defendants the judgment was irregular and should not ex vo-rte Bichards v Godmctn 16 VLE be set aside Maritime <fcc Co. v. Christie 5 6. '. '. ', A J E. 65.

28 No ] INSTRUMENTS ACT The practice and mode of procedure for the time being applic- ** The Infltrttable to and regulating actions at law shall (so far as the same are not afytew&t^ inconsistent herewith) extend and apply to all proceedings had or * 25 - taken under this Division of this Part of this Act. ae^ns^oappiy QO to this Part. DIVISION 5. SUrfLEMENTARY. oots.? A rrnnff is flf^tinfitfi TVi np flftinc* in wrtrtn "Kiirii Tuitliiii i"rto TnA4nm(if Good f&ithh ov. JI miug i» uetjiiicu vuue uuiie 111 guuu IULUI witiuu me meaning., ThsIldla(^ \}L villa JTciLu Ol Lille X1L.OL wllcic JX lo in IclC'l UAJQc JLLU-UvsUJ-V wjjcljirlcr ID lo J$$CGhcm$c A.ct done negligently or not. 4f"46Vict, J f 1, h j { -J. A J.,,,??, Signa*uro. is reqnirca tooe signea nya y person, it is ot necessary tnacpe snouia js.s.oi. si^n it "v 111 his ~_,, T* 1 * J It, & ritten ttiereoii Dy sjj e otoer person oy or nnaer nis authority... (^) n " e.^ o a corporation wnere ny uiis_part ofthis Act any instrument or writing is required to ne signed, it is sufficient if the instrument or writing be sealed with the corporate seal. ^ ^ But nothing in this section shall be construed as requiring the bill 101. Where by this Part of this Act the time limited for doing computaiion any act or thing is less than three days, in reckoning time non-business * *'""* days are excluded. Ib' ' ^ "Non-businessdays"forthepurposesofthisPartof this Act mean («.") Sunday Good Friday Christmas Day: (0) A bank holiday under the Banks and Currency Act 1890 or Acts amending it: (c) A day appointed by proclamation by the Governor in Council as a public fast or thanksgiving day. Any other day is a business day For the purposes of this Part of this Act, where a bill or note when noting 111 t0 is required to be protested within a specified time or before some further SnSesi.' proceeding is taken, it is sufficient that the bill has been noted for i<>. «oaprotest before the expiration of the specified time or the taking of the Ib - * m - proceeding; and the formal protest may be extended at any time thereafter as of the date of the noting Where a dishonoured bill or note is authorized or required Protest when to be protested and the services of a notary cannot be obtained at the Shi? place where the bill is dishonoured, any householder or substantial it.«. w- resident of the place may in the presence of two witnesses give a Ib -- M - certificate signed by them attesting the dishonour of the bill, and the certificate shall in all respects operate as if it were a formal protest of the bill. The form given in the Fourth Schedule to this Act may be used Fourth with necessary modifications, and if used shall be sufficient. schedule The provisions of this Part of this Act as to crossed cheques Dividend shall apply to a warrant for payment of dividend. b^ewssei 1 '* 3 ' 105. (1) The rules in insolvency relating to bills of exchange ** **? i 1 1. ' L 11 J.' j. 1 J.L j. J. -J.1 Il>. B. OS. promissory notes and cheques snail continue to apply thereto notwitn- Rulcg provi. standing anything in this Part of this Act contained. 810n * and i ** 3 (2) The rules of common law including the law merchant save in Jt, 197. so far as they are inconsistent with the express provisions of this Part ib. s. si.

29 1570 INSTRUMENTS ACT [54VICT. "The mu> B/ of this Act shall continue to apply to bills of exchange promissory notes?m» n3e Act and cheques. (3) Nothing in this Part of this Act shall affect (a) The provisions of Parts II. and III. of the Stamps Act 1890 or any law or enactment for the time being in force relating to the revenue: (b) The provisions of Part I. of the Companies Act 1890 or any Act relating to joint-stock banks or companies: (c) The validity of any usage relating to dividend warrants or the indorsements thereof. Penalty for 106. Any person who shall commit any of the following acts shall C"wtes with be deemed to have committed an offence and shall be liable to a penalty JS l, f«, i-i iaden n t> exeeeding Five pounds to be recovered in a summary way, that is persona. to say, everyperson R ' s. 9* (a) Who after the issue thereof defaces any bank-note by writing printing stamping or marking thereon his name or the name of any other person or any matter relating to the trade business occupation or affairs of any person: (b) Who being party or privy to any bank-note being defaced as aforesaid pays away parts with puts in circulation demands payment of or deposits or offets to deposit in any bank any bank-note so defaced as aforesaid. Provided always that it shall not be deemed to be an offence within the meaning of this provision where any person indorses any bank-note for the purpose of identification or for any other lawful purpose. Definition of 107. For the purposes of the foregoing section the expression bank-note. " bank-note " shall include any promissory note issued by a bank which lb. s entitles or is intended to entitle the bearer or holder thereof without indorsement or without any further or other indorsement than may be thereon at the time of the issuing thereof to the payment of money not exceeding any sum for which such bank or banker may lawfully issue any such note and in whatever form and by whomsoever such note is drawn or made. indorsee. " Tha Instrttment* and Sec. Statute 18M " tr & 19 Vict. c Ill s. 1. PART II. BILLS OF LADING. Rights to vest in 108. Every consignee of goods named in a bill of lading, and every consignee or indorsee of a bill of - lading to whom - the - property in - the goods * therein mentioned shall pass upon or by reason of such consignment or indorsement shall have transferred to and vested in him all rights of suit and be subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself Nothing herein contained shall prejudice or affect any right of stoppage in transitu, or any right to claim freight against the original shipper or owner, or any liability of the consignee or indorsee by reason or in consequence of his being such consignee or indorsee or of his receipt of the goods by reason or in consequence of such consignment or indorsement. whenwiisof 110. Every bill of lading in the hands of a consignee or indorsee Sve'ev'idence of for valuable consideration representing goods to have been shipped on "*»v, n -t board a vessel shall be conclusive evidence of such shipment as against HxiTa. *^e mas^er or other person signing the same, notwithstanding that such Right of stoppage in transitu and freight. JO* v* 8& lb. s. 2.

30 No ] INSTRUMENTS ACT goods or some part thereof may not have been so shipped; iraless svich "Thoinstnholder of the bill of lading shall have had actual notice at the time of JX'fisaf^' receiving the same that the goods had not been in fact laden on board If any person sign any receipt acknowledgment or bill of Sicrntaff untrue lading which represents or purports to represent that the goods therein I S I S a mentioned have been shipped in or upon or laden on board the ship or "TIM BW*<>/ vessel therein named, unless such goods have in fact been so shipped or w^ii^ laden or unless they are at the port where the ship is loading, and arr for the purpose of shipment at the absolute order and disposition of the master of such ship or vessel, lie shall be guilty of a misdemeanor. Provided that the person so signing may in all proceedings whether civil or criminal exonerate himself in respect of such misrepresentation by showing that it was caused without any defaidt on his part and by the fraud of the shipper or of the holder or of some person under whom the holder claims If any person deposit or assign either by way of sale or of Dealing with security or otherwise deal with any receipt acknowledgment or bill of bi^a 1113 ** lading as aforesaid knowing that such receipt acknowledgment or bill mtstemeukw of lading has been signed contrary to the provisions of this Part of this J *' s ' 3l Act, he shall be guilty of a misdemeanor The fact that any receipt acknowledgment or bill of lading Bill of ladlngnot has been signed contrary to the provisions of this Part of this Act shall is^,pet ed not of itself invalidate any such receipt acknowledgment or bill of lading ^nature. or in any way affect the operation thereof. lb - * * 114. Every misdemeanor under this Part of this Act shall be Punishment for misdemeanor. punishable by a fine not exceeding Two hundred pounds or by imprison- """ 1 lb. i. 6* ment for any term not exceeding two years The word "port" in this Part of this Act shall include the Definition of city of Melbourne Port Melbourne and Williamstown the towns of ^rt ' Geelong Warrnambool Port Fairy and Portland and places within ten miles from the post-office in the city of Melbourne and within three miles from the post-office in each of the towns aforesaid. irart J-LJ.. z OLICIES OF.INSURANCE. DIVISION 1."~ MARINE POLICIES No assurance or assurances shall be made by any person orno assurance to persons bodies corporate or politic, on any ship or ships belonging to tesmur Her Majesty or any of her subjects or any goods merchandises,or effects ' mtiitsl laden or to be laden on board of any such ship or ships, interest or no J!Si',Kt «;. interest or without further proof of interest than the policy or by way fjj"' 8 im " of gaming or wagering or without benefit of salvage to the assurer; and 19 G60 II every such assurance shall be null and void to all intents and purposes. & 37s - * 117. Notwithstanding anything contained in this Act, it shall be Re-assurance lawful to make re-assurance upon any ship or vessel or upon any goods allowed', merchandise or other property on board of any ship or vessel or upon Act y<>. 283*. a. the freight of any ship or vessel or upon any other interest in or relat- ^r&zeviot. ing to any ship or vessel which may lawfully be insured.

31 1572 INSTRUMENTS ACT [54 VICT. " The instm In all actions or suits brought or commenced by.the assured upon any policy of assurance, the plaintiff in such action or suit or his * i2 \ attorney or agent shall, within fifteen days after he or they shall be In nil notions. -, j. j *! * l j.1. j j? j i!» ii _ J. piaiiitifi to required so to do in writing by the detendant or nis attorney or agent, mt e Mn e dnyswhat declarc in writing wgat sum or sums he had assured or caused to be simis^ehad assured in the whole; and what sums he hath borrowed at respondentia 19 Goo. u. or uottomry IOT we voyage or any pan 01 me voyage in question in such e. 37 B. e. snft or action. made 0 m? be 119. It shall not be lawful for any person or persons to make or siitu &c without effect or cause to be made or effected any policy or policies of insurance insertins the TITWYII on-ir elii-n /IT a tin no iroeeal fif vaaanla n-i- nnnn ant rrnnfla ttiap/diani^ienc name of one or upon any s>mp ur»uips vessel ui ve&scib ur upon any goous uieicuiinuikcs "iiorreatot&e. or e ec*, s or other property whatsoever, without first inserting or causing of the eoniujrnor to be inserted in such policy or policies of assurance the name or names or thepereoii or the usual style and firm of dealing of one or more of the persons W ilwittetrtiee r ' inttrested al such ansurance; fd withouo fnstead thereoo first enserting to effect the ir eausing to be hnserted in sucw policy or policies of assurinse the (T" at name or nameb or the usual style and firm rf dealing of the consignor 2s'aoo. m. or consignors conrigneu or consignees of the goods merchandises effects e. sc o. in or p r0 p er (;jr sc to g e insured or the name or names er the usual style and firm of dealing of the person or persons residing in Victoria who anall receive the order fth end effect such policy or policies of assurance or of the person or persora who shals give the order or direction to the ogent or agents immediately employed tv eegotiate ro rffece sucn policy or policias of sssurance. povssy! thi3, t +h t ' f t ri o f tv TV ' ' f Iv e^fr t *f Act void. contrary to e ue in a ng A * J * * ' i! * a u..u. this Act shall be null and void to all intents and purposes whatsoever. DIVISION 2. LIFE AND OTHER POLICIES. No insurance to 1S1 Wo 'msnrfltu'p svmll TIP tvtftde liv nnv rierson or npinons Vindips tasotwhab 111 * politic or corporate on tsh life or lives of any person or persons or on interest, any other event or events whatsoever wherein the person or persons for i4'oeo 45 iii whose use benefit or on whose account such policy or policies shall he c4s. i. ' made shall have no interest**' or by gaming or wagering ; and every assurance made contrary to the true intent and meaning hereof shall be null and void to all intents and purposes whatsoever. 19P Tt h 11 t h 1 fit lr 1* re ' lli names &c life or lives of any person or persons or other event or events without ib«. 46. inserting in such nolicv or policies the nerson or nersons* name lb. s. 2. names interested therein or for whose use benefit or on whose account such tiolicv is so made or underwritten <*' now niueh may 123. In all mades where the insured bath inoerest wn suca life or 10 c * lives 1vent or events, no greater sum shall be recovered or received from. ' 3. the snsurer or insurers ohan the amosha ob ealue of tho irterest df the thsured rn suri ute or liven or ether untnt or events..... (a) A stepfather has a sunicieiit interest in the,rw*6 insurance co. <y iv.i&.j l\) V.L.R. (IJ.JJ property of nis mfimt stepchild to eijablehim to,i>, r.. insure wvjjtih v. MQtitefiore, 1 V.L. 1., da. (") A policy ol hreinsurance on a personal cnat- A legal interest byway of mortgage in a chattel tel is not within this section, and heed not theremay be created by word of mouth; semble, a legal fore have inserted in it the name or the persontor interest in a chattel is not necessary in order to whose benefit itisinade. ^Joliimm v. umon Jure

32 No ] INSTRUMENTS ACT Nothing herein contained shall extend or be construed to * extend to insurances bondfide made by any person or persons on ships statute iwi"" goods or merchandises; but every such insurance shall be as valid and s * 48 * JS? J. i * AX. i *J> J.1-- * A 'U J ii j Not to extend to effectual in the law as it this Act had not been made, snipa&c. 14 Geo, 111, c. 4 a 4, PART IV. BONDS In all actions which shall be commenced or prosecuted upon in actions on any bond or bonds or on any penal sum for non-performance of any J^ahnWmay covenants or agreements in anv indenture deed or writing: contained, the aaien «s many,.,.~> n...~. J.,. P,, V n. "reaches as he plaintin or plaintiffs may assign as many breaches as he or tney shall pleases.-md jury think fit; and the jury upon trial of such action or actions shall and SA^CT 9 may assess not only such damages and costs of suit as have heretofore n. «. 49. been usually done in such cases, but also damages for such of the said breaches so to be assigned as the plaintiff upon the trial of the issues shall prove to have been broken ; and the like judgment shall be entered on such verdict as heretofore hath been usually done in such like actions. And if judgment shall be given for the plaintiff on a ' demurrer or by confession or nihil didt, the plaintiff upon the roll may suggest as many breaches of the covenants and agreements as he shall think fit; upon which a jury shall be summoned to inquire of the truth of every one of those breaches and to assess the damages that the plaintiff shall have sustained thereby. And in case the defendant or defend- Defendant ants after such judgment entered and before any execution executed Secufiotniiaf" 3 shall pay into the court where the action shall be brought to the use of ^ 3ta J' sd - the plaintiff or plaintiffs or his or their executors or administrators such damages so to be assessed by reason of all or any of the breaches of such covenants together with the costs of suit, a stay of execution of the said judgment shall be entered upon record ; or if by reason of any execution executed the plaintiff or plaintiffs or his or their executors or administrators shall be fully paid or satisfied all such damages so to be assessed together with his or their costs of suit and all reasonable charges and expenses for executing the said execution the body lands or goods of the defendant shall be thereupon forthwith discharged from ' the said execution which shall likewise be entered upon record But notwithstanding in each case such judgment shall remain continue and Tint- tn/1(pm A nt ti\ be as a further security to answer to the plaintiff or plaintiffs and his ri!,nain t 0!1 " 8W<!r or their executors or administrators such damages as shall or may be k«* &c - r sustained for further breach of any covenant or covenants in the same 8 * 9 W,L IlL s indenture deed or writing contained upon which the plaintiff or plaintiffs may have a scire facias upo'n the said judgment aeuinst the defendant or against his "heirs executors or administrators siiffo-estirur other breaches of the said covenants or agreements and to summon him or them resnectively to show cause whv execution should not hp had or awarded nr>on the said judgment uiwra which tlierp shnll he thf> like proceprfinor as was in the action of debt upon fw Rfiir] lvmd or obligation for "flsscwiinc- nf damans urkon trial of IRSIIPK in' r\ Tinnn flnrh TvrpfirViPH or innnrrv frhereof ftsi aforesaid ; anrl nnnti A ~ j.,. -. J^ *J ^e v' JJ A J '~ ment or satisfaction in manner as aforesaid of such future damages t d 1 n id 11 f tli Ai til id j 3 t f Vua + rl A if f d +li df A 1 k* iiz-wi i J j i, n Vm J- if A + f e enaant nis ooay ianas or gooas snan oe aiscnargea out oi execution as aforesaid.

33 1574 INSTRUMENTS ACT [54 VICT. " The iwtm Where any action of debtor scire facias shall be brought Xwutewti ' upon any judgmen,, if the defendant hath paid the money due upon *? such judgment, such payment shall and may be pleaded in bar of such rait'ii onn bt action or suit. And where an action of debt is brought upon any bond ns id- er which hath a condition or defeasance to make void the same upon paysuch payment ment of a lesser sum at a day or place certain, if the obligor his heirs ietefar. 6 pe executors or administrators have before the action brought paid to the The like on obligee his executors or administrators the principal and interest due 4 5 S Anno by the defeasance or condition of such boud, though such payment was e. as..2. no(; mad e strictly according to the condition or defeasance, yet ti thall and may nevertheless be pleaded in bar of such action; and shall be as effectual a bar thereof as if the money had been paid at the day and place according to the condition or defeasance and had been so pleaded. principal and 127. If at any time pending an action upon any such bond with a bondtpa into penalty the defendant shall bring into court all the principal money court- and interest due on such bond and also all such costs as have been iu 113. expended in any suit or suits in law or equity upon such bond, the said money so brought in shall be deemed and taken to be in full satisfaction and discharge of the said bond; and the court shall and may give judgment to discharge every such defendant of and from the same accordingly. PART V. GfUARAiTTEES No action shall be brought whereby to charge any person Representations ct character. Up 0n or by reason of any representation or assurance made or given 9 Geo iv concerning or relating to the character conduct credit ability trade or c.14s. 0 dealings of any other person to the intent or purpose that such other person may obtain credit money or goods thereupon, unless such representation or assurance be made in writing signed by the party to be charged therewith. consideration 1SO, No special promise to be made by any person after the n M U notiwear coming into operation of this Act to answer for the debt default or in writing. miscarriage of another person, being in writing and signed by the party J!'.** 5 i, to ke cnarged therewith or some other person by him thereunto lawfully lu at SO Vict,t *? s 11 l i i* "i*i( J L' *J_ 11 c &! s. s. authorized,,hall be deemed invalid to support an action suit or rther proceeding to charge the person by whom such promise shall have been made, by reason only that the consideration for such promise does not appear in writing or by necessary inference from a written document. Guarantee to or 130. No promise to answer for the debt default or miscarriage of cease npon^ another made to a firm consiiting of two or more persons or ro a ssngle B 1!'^, 1!?. Person trading under the name of a firm, and no promise to answer for apociai cases, the debt default or miscarriage of a firm consisting of two or more u>. s. M. lb."" 4, persons or of a single person trading under the name of a firm, shall be binding on the person making such promise in respect of anything done or omitted to be done after a change shall have taken place in any one or more of the persons constituting the firm or in the person trading under the name of the firm, unless the intention of the parties that such promise shall continue.to be binding notwithstanding such change shall appear either by expressed stipulation or by necessary implication from the nature-of the firm or otherwise.

34 No ] INSTRUMENTS ACT Every person who being surety for the debt of duty of another "zvie/nstmor being liable with another for any debt or duty shall pay such debt or ^Mtisst"^ perform such duty, shall be entitled to have assigned to him or to a * w * trustee for him every judgment specialty or other security*"' which dis<*i*argine the shall be held by the creditor in respect of such debt or duty, whether e'titiod to such judgment specialty or other security shall or shall not be deemed Mstemnentot an,i J i i i r, j» i i n II>II ill J> securities held at law to have been satisfied by the payment of the debt or performance by the creditor. of the duty; and such person shall be entitled to stand in the place of w* s viet. the creditor and to use all the remedies and (if need be and upon a proper indemnity) to use the name of the creditor in any action or other proceeding at law or in equity in order to obtain from, the principal debtor or any co-surety co-contractor or co-debtor (as the case may be) indemnification for the advances made and loss sustained by the person who shall have so paid such debt or performed such duty; and such payment or performance so made by such surety shall not be pleadable in bar of any such action or other proceeding by him. Providedalways that no co-surety co-contractor or co-debtor shall be entitled to recover from any other co-surety co-contractor or co-debtor by the means aforesaid more than the just proportion to which as between those parties themselves such last-mentioned rjerson shall be justly liable.*' PART VI. BILLS OF SALE In construing this Part of this Act the following words and interpretation, expressions shall have the meanings hereby assigned to them unless *?* * 63. lb. a. 1. there be something in the subject or context repugnant to such constructions (that is to say): "Bill of sale " shall include bills of sale assignments transfers "MII otsaie." declarations of trust without transfer and other assurances of personal chattels**' and also powers of attorney authorities or licences to take possession of personal chattels as security for any debt; but shall not include the following documents (that is to say) assignments-for the benefit of the creditors of the person making or giving the same, (a) When judgment has been recovered by the co-debtors to pay their several- contributions in creditor against the surety as a sole defendant, such surety is not entitled on satisfying such reduction of the amount of damages sought to be recovered by the plaintiff, as paid by him in satisjudgment to have it assigned to him; the Act gives him only what may be useful to him in faction of such judgment, lies upon, the defen- dant. In such an action the plaintiff need not lay enforcing contribution. ffardy v. Johmton, 6 special damage. EmbUng v. McBwan, 3 V.R. V.L.R. (L.), 190. (L.), 52. A surety who lias paid the debt of the principal (c) This relates as well to equitable as to legal debtor is entitled, under this section, to an as- insurances: Where a debtor sold to his father all signment by deed of all the securities which the his stock-in-trade, ifec., in connexion with a parcreditor holds, including a promissory note of ticular business for their fair value, and signed which the creditor is holder and payee; and is not the following document " Received from.... bound to take the note indorsed by the creditor the sum of 50 lis. for the undermentioned without recourse. A bill of exchange or pro- goods." (giving an inventory of them) but remissory note may be a "security" within this mained in apparent possession of the goods, the section. fflveringham v. Wadddl, 7 V.L.R, (L.) court held that, as there was no complete and in dependent contract proved apart from this docu- (6) A co-debtor who has paid the damages and merit, which was intended to indicate that the costs in respect of which judgment has been re- son sold the goods to the father, and was not a covered against himself and the other co-debtors is entitled to an assignment of the judgment to mere receipt, it amounted to an equitable "assur-' ance of personal chattels" within the meaning of enable him to sue his co-debtors for their several this section, and was a bill of sale within the contributions; and in an action against the judg- meaning of the Act, requiring registration, and nient creditorfor refusing to assign such judgment was void for non-registration. Yarnton v. Ta.ythe onus of proving the inability of.the plaintiff's lor,,13 V.L.R.,.903. VOL. II. 3 D

35 1576 INSTRUMENTS ACT [54 VICT. "Thae-astro- " Personal chattels." " Li&u on Crops "ct lwf>" «s. 1 <nul 2, " Apparent possession." marrrage settlementss,tansfers or asssgnments of any ssip or vessel or any share thereof, transfers of goods in the ordinary course of business^ of any trade or calling, bills of sale of goods in foreign parts or at sea, bills of lading, India warrants, warehousekeepers' certificates, warrants or orders for the delivery of goods or any other documents used in the ordinary course of business as proof of the possession or control of goods or authorizing or purporting to authorize either by indorsement or delivery the possessor of such document to transfer or receive goods thereby represented. "Personal chattels" shall mean goods furniture fixtures and other articles capable of complete transfer by delivery and also a growing crop or growing crops /» agricultural lroiuce including perennial graso or oc hprticulturau produce including fruit of aly kind; rut shall uot include chattel interests in real estate nor shares or interests in the stock funds or securities of any government or in the capital or property of any incorporated or joint-stock company nor choses in action nor any stock or produce upon any farm or lands which by virtue of any covenant or agreement ought not to be removed from any farm where the same shall time of the making or giving of such bill of sale/ 11 * And personal chattels shall be deemed to be in the " apparent possession" of the person making or giving the bill of sale so long as they still remain or be in or upon any land occupied by him or as they shall be used and enjoyed by him in any place whatsoever, notwithstanding that formal possession thereof may have been taken by or given to any other person. Bills at sale to be General. went* a^s^c, St^twto 1304 " IT St 16 Vict. C' 30 8< Every bill of sale w of personal chattels made after the commencement of this Act either absolutely or conditionally or subject 0r not subject to any trusts and whereby the grantee or holder shall Qave power either with or without notice and either immediately after the making of such bill of sale or at any future time to seize or take possession of any property and effects comprised in or made subject to such biil of sale, and every schedule or rnventory which shall be thereto annexed or therein referred to, or a true copy (<i) thereof respectively and (a) A transfer of all a man has is not a "sale made in the ordinary course of business." The WwMjwnUta J}reioin(i Co. v. Betts, 1 A.J.R., 79. (6) The definition of "personalchattels" excluding *' stock upon any farm which by virtue of any covenant or agreement ought not to be removed therefrom," does not apply to a covenant in a stock mortgage not to remove the stock; it applies only to a covenant or agreement existing prior to the stock mortgage. Teague v. Farrell, 6 V.L.R. (L.), 480. (c) A contract by deed for the letting and hiring of goods, part of which already belonged to the hirer, with a declaration that none of such goods had been sold or belonged to the hirer, is a document which requires registration under this section and section 153 of this Act, and, semble, the presumed previous transfer of such part from the hirer to the lender ought to be in writing and registered with such deed. Oriental Hotel Go. v. Thomson, 5 V.L.R. (L.), 485. (d) If there be a blank in a schedule to a deed, and a similar blank in the copy filed, and after the copy has been filed the blank in the schedule is filled up, the copy so filed is not a true copy within the meaning of the Act. Port v. Londoil Chartered BctnJ; of Australia^ 1 V.R. (L.), 162; 1 A.J.R., 146.

36 JNo ] INSTRUMENTS ACT of every attestation*") of the execution thereof, shall (together with an "Tuimtraaffidavit^ of the time of such bill of sale being made or given and a'sm^tm^"' description of the residence and occupation of the person making or giving the same or, in case the same shall be made or given by any person under or in the execution of any process then, a description of the residence and occupation of the person against whom such process shall have issued and of every attesting witness to such bill of salew) be filed in the office of the Eegistrar-General within thirty-one days after the making or giving such bill of sale.*** Otherwise such bill of sale AUJ^O shall, as against all assignees of the estate and effects of the person whose goods or any of them are comprised in such bill of sale under1any laws now or hereafter to be in force relating to bankruptcy or insolvency or tinder any assignment for the benefit of the creditors of such person, and as against all officers and other persons seizing any property or effects comprised in such bill of sale in the execution of any process of any court of law or equity authorizing the seizure of the goods of the person by whom or of whose goods such bill of sale shall have been made, and against every person on whose behalf such process shall have been issued, be null and void to all intents and purposes whatsoever, so far as regards the property in or right to the possession of any personal chattels comprised in such bill of sale which, at or after the time of such bankruptcy or of the estate of the debtor being placed under sequestration or of the execution by the debtor of such assignment for the benefit of his creditors or of executing such process (as the case may be) and after the expiration of the said period of thirty-one days, shall be in the possession or apparent possession of the person making such bill of sale or of any person against whom the process shall have issued under or in the execution of which such bill of sale shall have been made or given as the case may be/ e * NO WII oo KU<S to 134..No bill 01 sale executed on or after tlie twenty-second day f ^i{i*»<w 0 ai*. 01 December One "cnousand eight hundred and seventy-six shall be jp , (a.) This section does not require that every and CfDowadl v. PatcheU, 5V.LE, (I/.), 360. execution of a bill of sale shall be attested, but " Clerk is an insufficient description O'Donthat where any such execution is attested there nell v. Goldstein, 4 A.J.R., 85; but "law clerk" shall be filed a true copy of it, and an affidavit is sufficient. Treueyv. Balderstm, 2V.R. (L.), 3; verifying the residence and occupation of the D<mgla$$ v. Simson, 6 W.W. & a'b. (EqO, 32. attesting witness. Where, therefore, the execu* "Managing law clerk" is also good, without tion of a bill of sale is attested, such execution stating for wnom the attesting witness was such may, under the JSvklence Act 1890, be proved by managing law clerk. O'Connor v. PmU, 5 W.W. other evidence than that of the attesting witness. &a'b. (L.), 97. Smith v. Martin, 3 W.W. & a'b. (L), 35. (d) An owner of personal property may assign (b) Where a bill of sale covers several sheets of it by bill of sale, not registered, and afterwards paper fastened together, the verifying affidavit again assign it by any number of subsequent bills being upon the last page, it is not necessary that of sale; and if the last one be registered within the different sheets should have an identifying the time allowed by this section it will be valid mark. London Chartered Bank v. Kirk, 1 V.L.R. as against assignees in insolvency and execution (L.) 266. creditors. ffedrich v. The Commercial Bank, 1 (c) These documents should contain a descrip- A.J.R., 155. tion of the occupation and residence of the person (e) A bill of sale, including in it horses, cattle, who gives the bill of sale, and of the attesting witness, which description should be given either and farming implements, registered under this section is valid against an execution creditor expressly in the affidavit or by.reference to an although not registered as a stock mortgage under annexure or in some other way so as to make it Part VIll, of this Act. Woolcott v. Kelly, 3 V.R. equivalent to a statement on oath of the facts (L.), 62. stated in the description. Sembh, the description (/) The term " bill of sale " includes written of the attesting witness, a solicitor, as "gentle- instruments in the form of sale notes, receipts, man," and of his residenceas "Melbourne, isnot sufficient. Nathan v. Naylor, 2 W. & W. (L), &c, intended as securities when the possession remains in the vendor. In re Shaw, 9 V.L.R. 263; see also McChdloch v. Harfoot, ibid, 267; (LP. <fcm.), 16.

37 1578 INSTRUMENTS ACT [54 VICT. Act No Form of notice. lb. s., Fifth Schedule. Notices to be indexed and open to inspection. lb, s. 3. Time within operative or have any validity at law or in equity until the same shall be filedw in manner provided by the last preceding section of this Act, and no such bill of sale shall be so filed unless notice of the intention to file the same be lodged at the office of the Registrar- General fourteen days before the filing thereof,, and tipon such lodgment there shall be paid to the Registrar-General a fee of one shilling Every such notice shall be in the form in the Fifth Schedule hereto or to the like effect, and shall contain a statement of the particulars in such form mentioned* 6 ) and shall specify an address to which notices of caveats may be posted, and the Registrar-General shall cause the date at which such notice is lodged to be marked thereupon The Registrar-General shall cause a book to be kept in which the names and additions of all persons making or giving any bill of sale herein called the grantors specified in such notices shall be entered in alphabetical order, with the dates at which such notices are lodged, and such book shall be open to the inspection of any person upon payment of a fee of one shilling, and any person may inspect and take a copy of any notice lodged as hereinbefore mentioned payment of a fee of one shilling. upon 137. No bill of sale specified in any such notice shall be ffled mo lc oefiled' sa,<l b e^ore ^ne expiration of fourteen days from the day of lodging such n. s. *. notice, or after the expiration of thirty days from such day, unless a fresh notice be given.< c > Caveat to stay 138. If a caveat shall be entered as hereinafter provided against film fr Ib '"' 6. Creditor may enter caveat. lb, a. 6. Sixth Schedule. Caveat to be notified to mortgagor who may summon caveator. lb. s. 7. the filing of the bill of sale specified in any such notice, such bill of sale shall not be filed until the caveat be removed or withdrawn as hereinafter provided Any creditor of the grantor in such notice mentioned, may, at any time within fourteen days from the day on which notice shall be lodged, enter a caveat against the filing of the bill of sale specified in the notice, by lodging such caveat with the Registrar-General and paying a fee of one shilling, and every such caveat shall be in the form in the Sixth Schedule hereto or to the like effect, and shall contain the particulars therein mentioned, and shall specify a place within the present limits of the city of Melbourne at which notices relating to such caveat may be served, and every notice relating to such caveat, if served at such place, shall be deemed to be duly served. 140, Upon the receipt of any such caveat the Registrar-General shall cause a copy thereof to be posted to the grantor mentioned in the notice at the address specified in the notice, and the grantor may (a) When chattels are sold, but remain in the possession of the vendor, ft receipt for the purchase money with inventory attached being given to the purchaser, such document requires registration. Glen v. Abbott, 6 V.L.R. (L.), 483. Taking possession by the grantee of the chattels comprised in a bill of sale does not do away with the necessity of filing the instrument. McCarthy v. 2ficholls, 8 A.L.T., 180. (t) Where in the notice the consideration was expressed to be a sum of money advanced at the time of giving the bill, and in the bill the consideration was stated to be an agreement to advance a sum of money as soon as the bill should have been duly filed : Held, that the notice did not state the consideration accurately, and that therefore the bill was inoperative. Vaughan v. WUden, 12 A.L.T., 17. (c) The time for filing a bill of sale runs from the date on which it is executed, and is not affected by an. antecedent verbal agreement to assign. O'DoiweU v. Patchell, 5 V.L.R. (L.), 360.

38 No ] INSTRUMENTS ACT 'summon the caveator before a judge of the county court at Melbourne, ActNo.m. in chambers, to show cause why his caveat should not be removed, and upon the return of such summons the judge shall hear and determine whether the caveator is a creditor of the grantor, and any person to whom the grantor is indebted on any account whatsoever at law or in equity on the balance of account or otherwise, and whether the debt be due or to accrue due, secured or unsecured, shall be deemed to be a creditor within the meaning of this section.*") 141. If on the hearing of such summons it shall appear that the Judge may order.w i.^* J ' J. J? J ^ L 1 J J i J fuingtobe caveator is a creditor ot the grantor the judge may make an order 9tayed or redirecting that no bill of sale shall be filed in pursuance of the notice "n caveat. mentioned in the caveat until the debt for which he shall be found to * *' be a creditor be satisfied, but if it shall not appear that the caveator is a creditor of the grantor the judge may order that the caveat be 'removed,'and upon service of the order upon the Registrar-General he shall remove the caveat therein mentioned A caveator may withdraw his caveat at any time by signing Caveat n>j be _ i J. ix. J.L J i ii J> ii J> IL a J.? withdrawn or an application tor the withdrawal thereof in the form in the seventh removal ordered.schedule hereto or to the like effect, and if after satisfaction of his debt ** im J,ume - before or after the making of any such order as hereinbefore mentioned, seventh the caveator shall refuse to withdraw his caveat or to sign an appli- s<! i edule. cation for the withdrawal thereof the grantor may summon the caveator before a judge as hereinbefore mentioned to show cause why the caveat should not be removed, and the judge may order the removal of such caveat and upon the service of the order upon the Registrar-General he shall remove the caveat therein mentioned, 143. Upon the hearing of any summons under this Part of this Judge to have Act the judge may make such order as to costs as he may think fit, and award coata and any person not a creditor of the grantor entering a caveat without rea- m P enbam» n - sonable cause for considering himself to be a creditor, and any caveator refusing without reasonable cause to sign an application for withdrawal of his caveat after satisfaction of his debt shall be liable to pay the grantor such sum bywayofcompensationasthe judge upon thehearing of any such summons may deem just and may order Every bill of sale heretofore made or given otherwise than FHinorof MIn under or in execution of any process shall at the expiration of twelve "'n^wed'em? months from the filing thereof, or from the filing of an affidavit stating twelve months the amount owing on the 'security thereof at the date of swearing the validity affidavit in accordance with the provisions of any Act hereby repealed, Annl y and every bill of sale otherwise than aforesaid which shall hereafter be it>.». is. made or given shall at the expiration of twelve months from the filing sa&aoviet. thereof become null and voidw unless within that time an affidavit shall ** (a) A caveator, in his affidavit in support of his Held, pet* Cope, J., that the caveator was not a caveat against registration of a bill of sale, alleged creditor within the meaning of this section, since that one H., the mother of W., the intended there was no privity between him and W., the grantor of the bill of sale, was entitled to dower caveator being like a mortgagee out of possession, from certain real estate which W. had entered into In re caveat of Mitchison, 1 A.L.T.,124. possession of as heir-at-law; that the caveator had (b) Though a bill of sale is made null and void advanced moneys to H., and had taken a mortgage by failure to file the prescribed affidavit of renewal, of her dower rights as security; and that W. had the grantee may recover the debt from the grantor received certain sums as net rents, one-third of upon an independent covenant to pay contained which the caveator claimed as such mortgagee. in the same deed. TidyTtwvn v. CoUins, 4 V.L.R. On these facts the caveator claimed to be a creditor (L.), 478. of W. within Act No. 557 (re-enacted in this Part).

39 1580 INSTRUMENTS ACT [54 VICT. Act No. SOT, Affidavit renewing to be entered and to be open to inspection ijk office of Rce;istrar- General. lb. s.14. Defeasances and conditions to be written on the bills of sale. "Tha Twtru* wnti and Sen. Statute 1864 " fr & 18 Vict, c. 36 f>. J. be filed made by the person or one of the persons entitled to the money secured thereby, or in the case of a corporation by its manager or other officer^ able to depose of Ms own knowledge as to the amount owing on the security thereof (such affidavit to be filed within seven days from the day of swearing the same) stating the amount owing on the security thereof at the date of swearing the affidavit, and at the expiration of twelve months from the filing of any such affidavit or of any subsequent affidavit such bill of sale shall in like manner become null and void unless a like affidavit is filed within such further period of twelve months showing the amount then owing on the security of such bill of sale/ m 145. Upon the filing of any such affidavit the Registrar-General shall cause an entry to be made in a book kept for that purpose of the number and date of filing such affidavit and the amount thereby deposed to be owing, together with the names additions and descriptions of the persons making or giving the bill of sale and the number of such bill of sale to which the affidavit refers, and he shall be entitled to receive one shilling and no more for filing every such affidavit, and every such affidavit may be inspected by any person at all reasonable times on payment to the Registrar-General of a fee of one shilling; and such book may be likewise inspected by any person on payment of a fee of one shilling If such bill of sale shall be made or given subject to any defeasance or condition or declaration of trust not contained in the body thereof, such defeasance or condition or declaration of trust shall for the purposes of this Part of this Act be taken as part of such bill of sale; and shall be written on the same paper or parchment on which such bill of sale shall be written before the time when the same or a copy thereof respectively shall be filed. Otherwise such bill of sale shall be null and void to all intents and purposes as against the same persons and as regards the same property and effects as if such bill of sale or a copy thereof respectively had not been filed according to the provisions of this Part of this Act.^ (a) The word "manager " in this section means, with reference to a banking corporation, either the head manager at the head office wherever situate or the manager of the branch bank at which the debt is due. An inspector in Melbourne of a bank having its head office in New South Wales is only an "officer" within this section and if he make the affidavit of renewal of a bill of sale must depose of his own knowledge to the facts. Qucere, whether the words'" able to depose of his own knowledge " apply to the antecedent word "manager" as well as to "other officer." 'Bank o/n.s. W. v. Jones 4 V.L.R. (E.) 253.' (b) A bill of sale by way of mortgage of chattels dated 12th July, 1879, was duly filed on 29th July, 1879, and registration renewed on 19th July, On 22nd February, 1881, the grantee assigned the chattels comprised in it to a third party who immediately took possession of them, the mortgagor having made default. In an action tried after the expiration of twelve months from 19th July, 1880, the bill of sale was tendered in evidence, and objected to on the ground that the filing had not been renewed within twelve months from the 19th July, 1880 as required by this section. Held such objection was untenable. Pettil.. Walker, 8 V.L.R. (I*.), 72. When bill properly filed but subsequent annual affidavit stated the amount due upon the bill incorrectly, the effect was to render the bill absolutely void as a bill of sale as between the immediate parties to it aa well as to all others. Btoei v. Zevefir boom, 6 V.L.R. (LA 473. The annual affidavit must be made by the person entitled to the money secured and'cannot be made by his attorney under power..martin v. Blamires, 4 V.L.R. (L.), 498. (c) W., more than sixty days before his insolvency, executed to L. an absolute bill of sale of goods which was registered under the Act. S., official assignee of W., sued L. for the goods. It was proved that the bill of sale though absolute on its face was subject to a condition of defeasance on repayment of the nominal consideration money, so that it had been in truth a mortgage to secure a debt. It was proved too that, after the execution of the bill of sale, W. went away for a time from the premises on which the goods were stored, then returned and became and remained apparent occupier as before, and was there supplied by L with goods to carry on his business as before The bill of sale was held void under this

40 No ] INSTRUMENTS ACT Every bill of sale of personal chattels (together with, every "raiw schedule or inventory if any thereto annexed or therein referred to) astute'ism*"" which or a copy of which shall be filed according to this Part of this * 5S ' Act shall be valid, notwithstanding that the person making or giving Ship not to t6 bills the same, or (in case the same shall be made or given by any person j!j v^v?' under or in execution of any process) the person against whom such process shall have issued, shall by the consent and permission of the true owner thereof have in his possession order or disposition the property and effects comprised in or made subject to such bill of sale, and shall be reputed owner thereof, or shall have taken upon himself the sale alteration or disposition of such property and effects as owner The Registrar-General shall cause every bill of sale and every Registrar to i l l!?' J. j* *j i i ni i ' keep books* such schedule and inventory as atoresaid and every such copy tiled as aforesaid to be numbered; and shall keep a book or books in his said ^Visvict office in which he shall cause to be fairly entered an alphabetical list of «so e. a. every such bill of sale, containing therein the name addition and description of the person making or giving the same, or (in case the same shall be made or given by any person under or in the execution of process as aforesaid then) the name addition and description of the person against whom such process shall have issued, and also of the person to whom or in whose favour the same shall have been given together with the number and the dates of the execution and filing of the same and the sum for which the same has been given and the time or times if any when the same is thereby made payable according to the form contained in the Eighth Schedule to this Act. Which said book or Eighth schedule books and every bill of sale or copy thereof filed in the said office may be searched and viewed by all persons at all reasonable times on paying to the said Registrar-General for every search against one person the sum of one shilling and no more The Registrar-General shall be entitled to receive for filing Fees for flung. and entering every such bill of sale or a copy thereof as aforesaid the J*- «sosum of one shilling and no more. Ib ' 9 ' * 150. Upon the filing of any copy of a bill of sale under this Part Receipt to be A,i... 5i ^ i n - j LI., A, indorsed on or this Act the proper orticer shall indorse thereon a receipt tor the copy of bin of. same, in which shall be specified the certain day hour and time on which, *., ' i ii i_ i JS-I j j ii_ -n /-i i ii Att &" *83' 2- the same shall nave been tiled; and the llegistrar-ljreneral or other proper officer in that behalf shall then attach his signature to the said receipt; and every such receipt so indorsed and signed shall be taken section and also at common law. Simpson v. promissory note nor'arrangement was referred to. I/ntk, 4 W.W. & a'b. (L.), 143. When agreement fdd, that the promissory note and arrangement to have goods back again on repayment was made made amounted to a condition of defeasance of the after the bill of sale was executed, bill of sale bill of sale, and, as it was not contained in the valid. Oane v. McGrane, 3 A.J.R., 22. body of it or written on the same paper as the bill A bill of sale of personal chattels, given to se- of sale, was null and void by virtue of this seccure the repayment of certain money advanced, tion. Anthowwv. Anderson, 14 V.L.R., 127. provided for redemption on payment on demand A bill of sale with a condition for payment of the sum secured. Immediately before or at tli within ft certain time after demand is not rentime of the execution of the bill of sale a promts- dered void under this section by its being proved sory note for the principal and three months' that nodefinitetime was fixed for payment. Per interest was given payable three months after Hood J, setni>le to have a bill of sale declared date and it was arranged that the money was to void under this section it must be rjroved that it be lent for three month! and if paid off meanwhile was given subject to some condition for tiayment there was to be a rebate' of interest. The bill of not contained in the conditions anneariiuz in the sale was filed in accordance with the provisions of bodv of the bill Centennial Land Bank v Exl&u the Acts re-enacted in this Part but neither the 11A.LT 171. '

41 1582 INSTRUMENTS ACT [54 VIOT. Act JVbh 233+ and allowed as evidence of the filing of such bill of sale and of the time when such filing took place. Office copi<sa Any person shall be entitled to have an office copy or an ex- "afilus mtdlse. tract of every bill of sale or of the copy thereof filed as aforesaid upon Sfcwute ISM" paying for the same the sum of one shilling per folio of seventy-two 17 & is Viot. words. c.36s. 5. Satisfaction ]noy 152. It shall be lawful for anyjudge of the Supreme Court toorder ri e n «<> * a memorandum of satisfaction to be written upon any bill of sale or copy thereof respectively as aforesaid, if it shall appear, to him that the debt (if any) for which such bill of sale is given as security shall have been ' satisfied or discharged. contract under 153. When any personal chattels shall be sold and the vendor shall which vend)r j,., V^., «,i i... i n.i rotainsior. under or by virtue of any contract rortne letting or hiring or the same jssonof retain possession thereof or retake possession thereof within six months beffl^ sold t0 from the ^ay of sale tee aale shall be void unless the contract of sale and jicfjro.567d.i5. the contract tor the letting gr hiring ghall lb in -wriring <"< and shall bb filed in manner hereinafter provided within ten days from the day of sale if possession be retained or from the day of retaking possession if possession be retaken,( 6 ) but nothing herein contained shall validate any such contract which would be invalid within the meaning of the Insolvency Act contracts mid 154. Every such contract of sale and contract for the letting or btaffldavitto be hiring under which possession is retained or retaken or copies thereof toniu^tutd. shall ^e filed <"> in the office of the Registrar-General together with an lb.s. i6. affidavit** of the time at which the same were respectively signed by the vendor and purchaser^) and a description of the residence and occupation of the vendor and purchaser, and the Registrar-General shall be entitled' to a fee of one shilling and no more for every document so filed, and shall cause a book to be kept in which shall be entered the names additions and descriptions of the vendor and purchaser; and all persons shall be permitted to search such book and to inspect any document so filed upon payment of a fee of one shilling and to have an office copy (a) The real contract is not in writing if such Part Vll. of Act No. 204 (re-enacted in this writing do not truly state the consideration. The Part), ifcwel v. Stephens, 9 V.L.R. (L)., 379; 5 consideration is not truly stated if it is stated to A.L.T., 142. be the advance by the purchaser of a certain sum (c) Contract filed under this and preceding secwhen it is in fact merely the discharge by him of tion must state truly the consideration, otherwise past debts due to him by the vendor to the amount the registration will be void. Howwv. Glowry, of such sum. ifruce v. Gannett, in re, Kiedle, 10 8 V.L.IL (L.), 280. V.L.R. (L.),126; 6 A.L.T., 13. Where the consideration for a contract is ex- When the contract of sale is made bondfick and pressed to be money paid on a certain day, and contains a substantially accurate statement of the it appears in evidence that the money was not consideration, though the statement may be cir- paid till a subsequent date, the consideration is cumstantially inaccurate, it is,whenfiled, valid. not truly stated and the instrument is void. Boydv. Suchetjki, 12 A.L.T., 25. Farmer v. Ogilme, 8 A.L.T., 162. {}>) A contract purported to be an absolute sale (d) The affidavit filed along with the contract is of certain goods. Attached was a contract of same sufficient if it states the day on which the various date under seal for the letting and hiring of the parties signed the instrument. Famterv. Ogifarie, same goods, which was not filed as a bill of sale. 8 A.L.T., 162. There was also a contemporaneous parol under- M Both documents must be signed by the retaking that the vendor should have the goods spective parties. Ford v. Matthews, 8 A.L.T., back if he paid the purchaser off. ffeld, the con The contract of sale must be signed both tract did not come within this section as there was by vendor and purchaser. K&leham v. McGee, no sale free from the proviso for redemption, and 9 A.L.T., 2, 47; followed in Marks v. Penglase, for the contract to be valid it required ming under 15 V.L.R. 1.

42 No ].INSTRUMENTS ACT or extract therefrom upon paying for the same the sum of one shilling Actxo per folio of seventy-two words Nothing in this Part contained shall affect or apply to or be operation and deemed to have affected or applied to any liens or mortgages hereafter p^rt," 10 or heretofore registered under Part VIII. of this Act. /». «. IT. PAET V11. LIENS ON CROPS Part VI. of this Act shall not affect or apply to any liens on Part vi. of thia crops registered in the manner hereinafter provided. "Ta^iaa* y. *KW T i.u J. i-i.1.' T> i. J* j.1 * A L J C 11 Crops Act ISK" 107. In tne construction ol this rart or tins Act and or all agree- > 2. ments hereunder unless the context be repugnant thereto Interpretation. " Crop shall mean the following crops sown for any purpose " Crop/. whatsoever and growing or not harvested, viz.: Wheat maize bere barley oats rye or other cereal, rye grass lucerne clovers of all kinds, vetches rape peas beans flax, onions potatoes turnips'carrot beet mangel-wurzel cultivated roots of all kinds, hops tobacco, fruit-of every kind, vegetables of every kind, and generally all agricultural and horticultural products; "Farm" shall mean any land used, wholly or in part for the 'Farm." purpose of growing any crop, whether the same shall consist of land alienated from or land held under a lease or licence from the Crown or partly of alienated land and partly of land so held, or shall mean when thereto limited any part of such land specifically described in the agreement hereinafter mentioned; <( Landlord " shall include the Crown; Landlord." * "Person" shall include companies whether incorporated or not 'Person." as well as individuals; " Produce " shall include all grain straw chaff hay of every kind 'Produce.' haulm seeds of every kind grass flax, onions potatoes turnips carrots beet mangel-wurzel cultivated roots of every kind hops tobacco fruit vegetables or other result of such harvesting; <( Eent" shall include licence fees under any Land Act; "Kent" "To harvest" or "Harvesting" or "To be harvested" shall 1Toharmt," include the cutting mowing reaping threshing digging ;toi^haj?' gathering bagging and doing all other things necessary to nested," bring such crop into a marketable condition, and "harvest" ' Harvest.' shall mean the crop so harvested In all cases where any person shall bond fide make any wght ot Henee advance of money or give any negotiable security or supply any chattels tocr P 3 - to any proprietor of a crop on condition 01 receiving the produce of the then next ensuing harvest of such proprietor as absolutely purchased by or in payment of or to secure the payment of any such money or negotiable security or for any such chattels (as the case may be), and where the agreement relating to such purchase advance or security shall be made in the form; or to the effect in the Ninth Schedule to Ninth this Act, and shall be registered within ten' days after the date of such schedule. agreement by leaving in the office of the Registrar-General a true copy

43 1584 INSTRUMENTS ACT [54 VICT. "The Lion oo _ thereof verified on oath before the said Registrar-General or before any *** person authorized to administer an oath, the person making such purchase or advance or giving such negotiable security or supplying such chattels shall be entitled to the whole of the crop mentioned in such agreement, whether such advance of money or the giving such negotiable security or the supply of such chattels be before at or after the granting of any such preferable lien/"' so long as the registered agreement relating thereto shall have been made in payment or to secure the payment of such money or negotiable security or for such chattels; and possession of such crop by the said proprietor his executors or administrators shall be to all intents and purposes in the law the possession of the person making such purchase or advancing such money or giving such negotiable security or supplying such chattels; and after such advance shall have been repaid or such negotiable security satisfied or such chattels paid for, with such interest and commission as may be specified in any such agreement, the possession and property of the said crop shall if such agreement was made by way of security re-vest in such proprietor, subject nevertheless to any charge in the meantime created by the proprietor and which shall then affect the same. night of lienee 159. After such agreement as aforesaid shall have been registered to ensu ng crop. ag aforesaid, the preferable lien of the lienee on the crop of the then next ensuing harvest of such proprietor shall not be in anywise extinguished suspended impaired or otherwise prejudicially affected by any subsequent sale mortgage or other incumbrance whatsoever of the farm on which such crop shall then be growing or not harvested and which shall be mentioned and described in the registered agreement relating to any such preferable lien, nor by the subsequent insolvency of the lienor his executors or administrators nor by any execution against his or their property but shall be as valid and effectual to all intents and purposes whatsoever against any such subsequent purchaser mortgagee incumbrancer lessee or other claimant or possessor of the said land, and against the assignees of such insolvent lienor his executors or administrators and against any execution creditor as against the original proprietor thereof who granted such lien. And if any such lienor subsequent purchaser mortgagee incumbrancer lessee or other claimant or "possessor assignee or execution creditor shall neglect or refuse to harvest at the usual season and deliver forthwith thereafter the crop for which any such preferable lien shall have been granted as aforesaid in pursuance of the provisions in that behalf contained in such registered agreement it shall be lawful for the lienee his executors or administrators to take possession of the farm bearing such crop for the purpose of harvesting such crop and (if authorized by such registered agreement in that behalf ) to sell the same ; and allexpenses attendinarsuch harvesting and the conveyance of the' tiroduce thereof to the rdace of abode or business of such lienee or to the nearest -nlace of shipment and of any sale as aforesaid shall he incorporated with and be deemed in law nart of the amount spenred bv such lien (a) Part of the lien constated of an old debt Held, the lien was good under this section. incurred without any promise of giving a lien; Qucere, whether for the whole amount or only the remainder consisted of a debt incurred on a for the further advance. Powell v. Dawson, 7 promise to give a lien for the whole amount. V.L.R. (L.),143; 3 A.L.T., 3.

44 No ] INSTRUMENTS ACT If the lienor be a tenant then the lienee shall before selling "The iden on any such crop pay to the landlord of the farm whereon such crop shall ^f* Act * SI * be growing such sum of money not exceeding one year's rent as may Liens by be due to him for rent at the time of carrying away such crop, and the en! " 1 lienee may repay himself the sum so paid out of the proceeds of the sale of such crop before paying over the balance to the lienor If at the time of making such lien there be in force alienaby mortgage of the farm whereon such crop shall be growing such lienee ^"^sw" 8 - shall before selling any such crop pay to the mortgagee the amount of interest not however exceeding twelve months' interest due upon such mortgage at the time of carrying away or selling such crop and such lienee may repay himself the sum so paid for interest out of the proceeds of the sale of such crop before paying over the balance to the lienor Every such registered lien of crop shall be assignable at law Transfer of by writing; and the assignee thereof respectively may bring every such J "**. action thereupon or in respect thereof in his own name, and shall have and may exercise the same right title and interest powers and authorities as the original lienee could have brought would have had or might have exercised if no assignment had been made by him The Registrar-General shall keep a separate and distinct Registration. registry from year to year of all such agreements for such purchases of /6 - ' 9 - crop and shall be entitled to demand for every such registry thereof a fee of two shillings and sixpence and one shilling for each affidavit sworn before him or made in verification thereof and all persons shall have access to the said registries and may search the same during' the usual hours of business on paying a fee of one shilling for every search for each agreement for a purchase of crop or advance thereon' At the end of twelve months next after the expiration of the year for which any such preferable Hen upon crop shall have been given as aforesaid the Registrar-General shall remove from the records of his office such "preferaole lien and shall destroy or cancel the same or at anv time at the iwiwst of both parties to any such rireferable lien shall enfpr satisfactiori nn the same 164. Any grantor of any preferable lien on crop and any servant Frauds by of such grantor who shall afterwards sell or deliver the crop under any Rmn * such lien to any purchaser or other person without the written consent of the lienee his executors administrators or assigns or sell dispose of lease or otherwise incumber or cause to be sold or disposed of. leased or otherwise incumbered without such written consent as aforesaid any of the land whereon such crop shall be growing with intent to defraud such lienee of any of such crop or of the value thereof, or to defraud in any of the cases aforesaid the purchaser mortgagee lessee or other incumbrancer of the said land, or who shall in any way or by any means whatsoever or howsoever directly or indirectly destroy defeat invalidate or impair the right of property of any lienee in the crop mentioned and described in any such registered agreement as aforesaid; and any purchaser of the interest of any grantor of any preferable lien on crop or the executors or administrators of any such grantor, and any overseer or servant of such person respectively who shall in any way or by any means whatsoever directly or indirectly destroy defeat invalidate or impair or ftov other person or D r30d3 who shall wilfully and

45 1586 INSTRUMENTS ACT [54 VICT. " The Lien on Crops Act 1878.' knowingly incite aid or abet any such purchaser overseer or servant directly or indirectly to defeat destroy invalidate or impair the right or property of any such lienee as aforesaid his executors administrators or assigns respectively in any crop comprised in any such lien shall be held and deemed guilty of an indictable fraud and misdemeanor, and being thereof duly convicted shall be liable in the discretion of the court before whom any such offender shall be so convicted to fine or imprisonment or to both fine and imprisonment such imprisonment to be for any period not exceeding five years. PART VII.. MRTTGAGES OF STOCK AND.LIENS ON WOOL. opemtionof this 165. Part VI. of this Act shall not affect or apply to or be deemed pretat!oii. illter - Lo have affected or applied to any liens or mortgages hereafter or Act No. 313 s. 2. heretofore at any time since the passing of " The Instrumenss and Securities Statute 1864 " registered under the provisions of Part VIII. of the said Statute; and the Act 25 Victoria No. 141 shall be deemed not to have affected or applied to any liens or mortgages registered under the Act 17 Victoria No. 16, or any Act continuing the same. Nothing in this. Part shall be construed to affect in any way the rights and prerogative of the Crown as to any Crown lands described in any liens or mortgages as the lands or stations where stock may be depasturing. In the construction of this Part ' Person." "Person" shall include companies whether incorporated or not as well as individuals, unless the context be repugnant thereto: 'Station." "Station" shall include any land used wholly or in part for the purpose of depasturing stock, whether the same shall consist of purchased land or land held under a lease or licence or partly of purchased land and partly of land so held: 'Stock.'* (< Stock" shall include any sheep cattle or horses. Right of Heaee to wool. lb. i. 3. Tenth Schedule In all cases where any person shall bond fide make any advance of money or give any negotiable security or supply any chattels to any proprietor of stock, on condition of receiving the wool of the then next ensuing clip of such proprietor as absolutely purchased by or in payment of or to secure the payment of any such money or negotiable security or for any such chattels (as the case may be), and where the agreement relating to such purchase advance or security shall be made in the form(«) or to the effect in the Tenth Schedule to this Act, and shall be registered within thirty days after the date of such agreement by leaving in the office of the Registrar-General a true copy thereof (a) It is not necessary that the same particularity as to witnesses and the residence of the parties should be observed as in bills of sale. The Act shows that the Legislature drew a marked distinction between mortgages on personal chattels (so called) and preferable liens on wool. There are obvious reasons for requiring full particulars in bills of sale, but as to preferable liens the Legislature merely legalizes what had been the practice in the absence of insolvency. The object of the Legislature is to enable the owner, by a simple process, to gain assistance to gather in his ensuing clip, and also to make it valid against insolvency., A very general form is given in the schedule, and the necessity for a residence can only be collected from the word "of" after the lienee's name. Goldsbrough v. McOulloch, 5 W.W. & a'b. (L.), 154. Where sheep were described in a mortgage as at a certain station, which was their head-quarters, but at which they were not at the time, having to travel about the country in search of feed. Queere, whether this fact invalidated the mortgage. jsjmttot'v. JSttershatik, 3V.L.K. (L.),

46 No. "1103.] INSTRUMENTS ACT verified on oath before the said Registrar-Creneral or before any person Act NO. SIS. authorized to administer an oath, the person making such purchase or advance or giving such negotiable security or.supplying such chattels shall be entitled to the whole1 of the' wool mentioned in such agreement,, whether such advance of money or the giving such negotiable security, or the supply of such chattels be before at or after the granting of any such preferable lien, so long as the registered agreement relating thereto shall purport on the face of it to have been made in payment or to' secure the payment of such money or negotiable security, or for such chattels; and possession of such wool by the said proprietor his ; executors or administrators shall be to all intents and purposes in the' law the possession of the person making such purchase or advancing' such money or giving such negotiable security or supplying such chattels ; and after such advance shall have been repaid or such negotiable security satisfied or such chattels paid for with such interest and commission as may be specified in ftny such agreement the possession and property of the said wool shall if such agreement was made' by way of security revest in such proprietor sufoiect nevertheless to any charge in the meantime created by the proprietor and which shall then affect the same ' 167. Upon the registration of every mortgage of stock and every Receipttobe agreement for the purchase of wool and advances thereon under this mortgages. Part of this Act the proper officer shall indorse thereon respectively a.adno.ms. 2. receipt for the same in which shall be specified the certain day hour and time on which the same shall have been registered or filed; and the Registrar-General or other proper officer in that behalf shall then, attach his signature to the said receipt ; and every such receipt so indorsed and signed, shall be taken and allowed as evidence of the registration of such mortgage or agreement and of the time when the registration took place After such agreement as aforesaid shall have been regis-r^motiienee tered as aforesaid, the preferable lien of the lienee on the wool of the Ji«"! ngclip then next ensuing clip of such proprietor shall not be in anywise A<&NO.BISS.4, extinguished suspended impaired or otherwise prejudicially affected by any subsequent sale mortgage or other incumbrance whatsoever of the' stock mentioned and described in the registered agreement relating to, any such preferable lien, nor by the subsequent insolvency of the lienor his executors or administrators, nor by any execution against his* or'their property, but shall be as valid and effectual to all intents and' purposes whatsoever against any such-subsequent purchaser'mortgagee incumbrancer or other claimant or possessor of the said stock, and against the assignees of such insolvent lienor his executors or administrators, and against any execution creditor, as against the original 1 proprietor thereof who granted such lien. And if any such lienor subsequent purchaser mortgagee incumbrancer or other claimant or possessor assignee or execution creditor.shall neglect or refuse to shear,, -, at the usual season and deliver forthwith thereafter the wool of any. stock for which any such preferable lien shall have been granted as aforesaid in pursuance of the provisions in that behalf contained in such ' registered agreement it shall be lawful for the lienee his executors or administrators to take possession of the stock bearing such wool for - the purpose'of washing and shearing the same and(if authorized by

47 1588 INSTRUMENTS ACT [54 VICT. Act No Right of mortgagee although possession in mortgagor lb. s. 5. Eleventh Schedule. Mortgages of stock to comjrise the stock Jor the time heing Oh the station and mortgagees authorized to take possession thereof and of other chattels on the station on power of salo becoming exercisable. lb. s. 6. snch registered agreement in that behalf) to sell the same; and all expenses attending such 'washing and shearing and the conveyance of the wool to the place of abode of such lienee or to the nearest place of shipment and of any sale as aforesaid shall be incorporated with and be deemed in law part of the amount secured by such lien. 169, Every mortgage of stock or of stock and other chattels on any station in Victoria which shall hereafter be made bond fide and for valuable consideration, provided the names of the parties thereto and the particulars thereof shall be registered^ within thirty days after the date thereof in the office of the Registrar-General in the form or to the effect mentioned in the Eleventh Schedule to this Act, shall be valid in the law to all intents and purposes, whether the time for payment of the money secured by the mortgage shall have arrived or not notwithstanding the said mortgaged stock or stock and other chattels shall not be delivered OYGF to the tiniiq in every respect in the possession order and disposition of the mortgagor his executors or administrators or any person claiming under him or them ; and the possession of such mortgaged stock or stock and other chattels by the mortgagor his executors or administrators or any person claiming as aforesaid shall be to all intents and purposes in the law the possession of the mortgagee his executors administrators or assigns notwithstanding the subseauent insolvency of the morto, as, or (ij his executors or administrators or anv Tterson claimine'fls^fhresaid or anv execution against his or their Tironerty Provider! that no such morts^e shall be protected from the operation of l VpTpafl. J?ivl ;«frtrrp Tplating to ifisolvencv miless Ji janj-j-o-ocre shall have been executed at least sixtv days before the dntp nf the rmw for semi estration or unless the consideration thereof shall hp an a/lvanm or loan made at thp time or in contpmnlatmn nf the»ym>iifi7ni nf stifh mtwtfracre And anv bill nf p-xchanee B,pfieritpd ov. j A n A wn aniti dirnwi or anv nrnmihrnrvnntp rnadp i i\ qpfl fn tlie or>r>.nmmrifla:kivn nf the mnrhmo-nr AT anv nnnnirl n ur, j....,1. 1 J.l.*_*, V 4./ " J chase money for any station or the stock thereon, whether secured or,, b ill f t, i nvia.ll TIP d d OT; oy j o g ]} n,i^ j.-' advance or loan within the meaning ot this section Every such registered mortgage of stock, whether expressly including other chattels or not, shall, unless the contrary be expressed therein, be deemed to include not ODly the stock or stock and other chattels mentioned in such mortgage and the increase and progeny of such stock, but also all stock and other chattels belonging to the mortgagor his executors or administrators, which shall after the execution of such mortgage at any time during the continuance of the security be depasturing or be at in or upon any station comprised or mentioned in such mortgage ;<"> and also shall be deemed to authorize (a) Registration is not essential to the validity of a lien on wool except in cases of insolvency. Stevemcm v. Landale, 1 V.R. (L.), 31; 1 A.J.R., 45. (6) Semble, the words in this section "The possession of such mortgaged stock by the mortgagor shall be to all intents and purposes in law the possession of the mortgagee are restricted by the words "notwithstanding the subsequent insolvency of the mortgagor" to such subsequent insolvency, and are not to be used in their most general sense. Gave v. Beveridge, 3 V.L.R. (L.), 302, 304. (c) The object and result of this section is to introduce into every stock mortgage duly registered, unless the contrary is expressed therein, a most stringent form of the clauses commonly inserted in such mortgages respecting stock afterwards brought upon any station occupied by the mortgagor and named in the mortgage. It is

48 No ] INSTRUMENTS ACT the mortgagee his executors administrators or assigns or his or their Act. F<>. SIS. agent, or the agent of any corporation (being such mortgagee), on the happening of any event on which any power of sale contained in the mortgage deed may be exercised, to enter upon such station and take possession of all the stock and other chattels which shall or may for the time being be found at upon or about any such station, and which shall belong to the mortgagor his executors or administrators, and the same stock and chattels respectively to dispose of under such power of sale No future mortgage of stock or of stock and other chattels Future tnortshall, unless registered in accordance with the provisions of this F&rt ^UJJJjJU t» within thirty days after the date thereof, be of any validity as against i nv» i < '» any purchaser bond,fideand for valuable consideration and whether so chaser for registered or not shall not be of any validity as against any subsecment ^"id'titt mortgagee or lienee whose mortgage or lien shall be duly registered n>.» t under this Part of this Act within = thirty days after the date thereof and before the registration of such first-mentioned mortgage except in the case of fraud and except in the case of fraud the onority of all instruments dulv' reffistered under this Part of this Act shall be determined bv order of registration and not of date and shall not be affected bv notice actual or constructive of any unregistered mortg*af/e or lien or of any contract therefor and the knowledge that &av such mortwace lien or contract is in existence shall not of itself be imonted as fraud and every second or subsecment mortg-ao-e of stock shall if dnly recistered in accordance with the urovisions of'this Part of this Act \aithin tviirrv days after the date thereof bpcnmp nrion anch reoi titration «. A on sati ^faction of all -nrior mcitteasrcft rpcisterpri in a<v> vrrlanff> w'tti tv«part of this Aft or with nav law rflnhno- tc fiiu4i mfirro-ntrpb 1- A J i? i A J. A AT. 1 1 I?" heretofore in force a first mortgage, so as to vest the legal ownership f fli t lr rl li tt l d th &' ' h d Ji t e p c o seq 172. Every such registered lien of wool and every such registered Transfers omens mortgage of stock or of stock and other chattels shall be assignable at J? d m rt s o s*slaw by writing ;( a ) and the assignee thereof respectively may bring every such action thereupon or in respect thereof in his own name, and shall have and may exercise the same right title and interest powers and authorities as the original lienee or mortgagee could have brought would have had or might have exercised if no assignment had been When lien may made by him. It shall be lawful for any mortgagor of stock with mor^or. y indifferent whether the stations on which the stock gagee as against the mortgagor, or any one pitrexpressed to be assigned are stated to be depas- chasing from him with notice of the mortgagee's turing or intended to be depastured are mortgaged interest, but not as against an innocent purchaser, or not, or whether the stock afterwards brought Groom v. Patterson, 12 V.L.R., 230. thereon during the continuance of the security The station where the stock are depasturing is are of the same kind as those expressly assigned. an essential particular of a valid registered stock All are to be covered by the mortgage unless the mortgage, and it must be truly described. Slee v. mortgagor at the time of entering into the security Murphy, 12 A.L.T,, 48; following London and distinctly stipulates for some other terms. Sevible, Australian Agency Co. v. Jhiff 5 W.W. & a'b. the effect of the enactment in this section that a (B.) 19. registered mortgage of stock shall be deemed to (a) Where a mortgage is executed on condition include after-acquired stock is not greater than that the mortgagee shall indorse a promissory note that of an assignment of after-acquired stock con- which he afterwards refuses to do, the property taiiied in the mortgage itself, which, notwith- revests in the mortgagor without the necessity standing "The Judicature Act 1883" (see Supreme for any re-assignment, and a subsequent mortgage Court Act 1890), creates only an equitable interest over the same sheep comes into operation. Synnot which would give a complete title to the mort- v. Ettershank, 3 V.L.R. (L.), 136.

49 1590 INSTRUMENTS ACT [54 VICT. Ati no. sis. the eonsent in nriting go fhe mortgagee ehereof, bnt "not without tuch. consent, to make and give a valid lien on the next ensuing clip of the wool of the stock included in the mortgaged Particulars of 173. The Registrar-General shall keep a separate and distinct rcjnstr&ra" registry, from year to year, of all such agreements for such purchases ib. s. 9. of wool or advances thereon as aforesaid, and shall also keep a separate and distinct registry of the particulars of all such mortgages of stock or of stock and other chattels as aforesaid, and shall be entitled to demand for every such registry thereof a fee of two shillings and sixpence and one shilling for each affidavit sworn before him or made in verification thereof; and all persons shall have access to the said registries and may search the same during the usual hours of business on paying a fee of one shilling for every search for each agreement for a purchase of wool or advance thereon, and the like fee K>r every search against each station for a mortgage of stock, or of stock and cancelling of other chattels. At the end of twelve months next after the expiration of the year for which any such preferable lien upon wool shall have been given as aforesaid, the Registrar-General shall remove from the records of his office such preferable lien and shall destroy or cancel the same, or at any time at the request of both parties to any such preferable lien shall enter satisfaction on the same. Registration of n rtsimc " /&. i. io In every case where before or after the coming into operation of this Act the amount due or secured upon any mortgage of stock or of stock and other chattels shall have been or shall be paid or ratisfied to the person entitled to receive or give a discharge for the same or his agent in that behalf, and a receipt in writing signed by such person or his agent shall be given acknowledging such payment or satisfaction, it shall be lawful for the mortgagor his executors administrators or, assigns to cause a copy of such receipt verified by affidavit to be registered in the office of the Registrar-General, who shall register the same on production to him of the original receipt and of the mortgage to which the same shall relate, or at his discretion on production of the receipt alone on proof by statutory declaration to his satisfaction that the mortgage has been destroyed or cannot be found, or of some other ground for non-production, and in every case in which production shall be dispensed with the declaration on which dispensation is obtained 1 shall be filed in the office, and a memorandum of such production having been dispensed with, and referring by number to such declaration, shall be made upon the original receipt and verified copy and signed by the Registrar-General at the time of registration; and from and after the such verified receipt such registered receipt shall operate as an extinction of the mortgage and. as a re-assignment of the mortgaged premises to the mortgagor his executors administrators or assigns but without prejudice nevertheless to any previous s^ile or any assignment in pursuance thereof under such mortgage deed and without prejudice to any second or subsequent mortgage affecting the same stock or the same stock and other chattels or anv part thereof then duly registered unless every party thereto and, everv assignee of such mortgage shall by writing under his hand at the (a) A second lien on wool without the consent of the first mortgagee, although invalid as against him, is valid against the grantor and his official, assignee. Clou^ft v. Lahig, 1 W. & W. {L,), 20.,

50 No ] INSTRUMENTS ACT foot of such receipt as aforesaid have signified his assent to the registra- ^w -*o- su. tion of sucli receipt Any grantor of any preferable lien on wool or of any mort- Frauds by gage of stock or of stock and other chattels under this Part of this Act mort s a e or * and any overseer or servant of such grantor, who shall afterwards sell 'or deliver the wool under any such lien to any purchaser or other person without the written consent of the lienee his executors administrators or assigns, or sell or dispose of or cause to be sold or disposed of without such written consent as aforesaid any of the sheep whereon such wool shall be growing, with intent to defraud such lienee of any of such wool, or of the value thereof; or who shall, after the due execution and registry of any such mortgage in any manner without the written consent of the, mortgagee thereof his executors administrators or assigns, sell or dispose of or cause to be sold and disposed of any stock or other chattels comprised in the mortgage, with intent to defraud the mortgagee; or who shall in any way or by any means whatsoever or howsoever directly or indirectly destroy defeat invalidate or impair with intent to defraud, and any other person or persons who shall wilfully and knowingly incite aid or abet any such grantor overseer or servant directly or indirectly to defeat destroy invalidate or impair, the right of property of any lienee in the wool of any sheep mentioned and described in any such registered agreement as aforesaid, or the right of property of any such mortgagee as stock or other chattels comprised in any mortgage duly executed and registered as aforesaid under the provisions of tins Part of this Act and any purchaser of the interest of the mortgagor his executors or administrators in any stock comprised in any such mortgage; and any purchaser of the interest of any grantor of any preferablelien on wool or f\\pj executors oi* administrators of any such grantor ; and any overseer or servant of such purchaser respectively who shall in any way or by any means whatsoever directly or indirectly destroy defeat invalidate or impair 4*1 T a XYV other person or persons who shall wilfully and knowingly incite aid or abet any such purchaser overseer or servant directly'or indirectly to defeat destroy invalidate or impair the right of property of any such mortgagee or lienee as afore^ said his executors administrators or assigns respectively in any stock or other chattels comprised in any such mortgage or lien with intent to defraud such mortgagee or lienee his executors administrators or assigns shall be held and deemed guilty of an indictable fraud and misdemeanor and beinu" thereof dmv convicted shall be liable in the discretion of the court before whom anv such offender shall be so convicted to fine or imprisonment or to both fine and imprisonment for any period not PTTfjapdincrfive years - ' * PART IA..^ WAURAHTS OF ATTORNEY. warmmsof 176.JNo warrant of attorney to confess judgment in any personal ^^^tobe action or cognovit actionem given by any person shall be 01 any force, executed fo^uie unless there shall be present some attorney 01 the Supreme Court on attorney on behalf 01 such person expressly named by him and attending at Ins j^.^,, 0 request to inform him 01 the nature and ettect 01 such warrant or "Tkeii^tmcognovit before the same is executed. Which attorney shall subscribe ^tamuim" his name as a witness to the due execution thereof, and^ thereby declare * - himself to be attorney for the person executing or signing the same and Ci 11019>' VOL. 1l* 3 E

51 1592 INSTRUMENTS ACT [54 VICT. " TkQ Instruments and Sec Statllltc Warrant not formally executed. 1 & a vic& c. 110 & 10. Warrants of attorney in personal actions to befiledwithin twenty-one days. It. s Geo. IV. c. 39 s. 1. state that he subscribes as such attorney; and a warrant of attorney to confess judgment or cognovit actionem not executed in manner aforesaid shall not be rendered valid by proof that the person executing or signing the same did in fact understand the nature and effect thereof or was fully informed of the same If the holder thereof shall think fit, every warrant of attorney to confess judgment in any personal action or a true copy thereof and of the attestation thereof and the defeasance and indorsement thereon in case such warrant of attorney shall be given to confess judgment in the Supreme Court, or such a true copy thereof as aforesaid in case such warrant of attorney shall be given to confess judgment in any other court, shall within twenty-one days after the execution of such warrant of attorney be filed together with an affidavit of the time of the execution thereof with the Prothonotary of the Supreme Court. Where estate of 178. If at any time after the expiration of twenty-one days next SftmnloV 11 ''' after the execution of such warrant of attorney the estate of the person attorney shall be covins' such warrant of attorney shall be sequestrated under or by Bequestrated the ~. c*,. " i, n 1 p i * warrant shall be virtue of any proceeding m pursuance ot the law ot insolvency now or iciitatidftoii?" hereafter to be in force in Victoria, then and in such case unless such T'lfh*^ b"" 6 warrant of attorney or a copy thereof shall have been filed as aforefiied as directed. said within the said space of twenty-one days from the execution n>.». 7T. thereof or unless judgment shall have been signed or execution issued on such warrant of attorney within the same period, such warrant of attorney and the judgment and execution thereon shall be deemed fraudulent and void against the assignee under such sequestration ; and such assignee shall be entitled to recover back and receive for the use of the creditors of such estate at large all and every lie moneys levied or effects seized under and by virtue of such judgment and execution. Every cognovit 179. Every cognovit actionem given by any defendant in any actionem to be personal action, in case the action in which such cognovit actionem lueci in Mice i n i ' \ ii i * i\ c* n i *,, manner or void shall be given shall be in the (supreme Uourt, or a true copy or such cstors. cognovit actionem, in case the action wherein the same is given shall be i». s. 78. in any other court, shall together with an affidavit of the time of the lb. s. 3. execution thereof be filed with the said Prothonotary in like manner as such warrants of attorney or copies thereof and affidavits within the space of twenty-one days after such cognovit actionem shall have been executed. Otherwise such cognovit actionem and any judgment entered up thereon and any execution taken out on such judgment shall be deemed fraudulent and void against the assignee of the person giving such cognovit actionem appointed under or by virtue of any law now or hereafter to be in force in Victoria relating to insolvency after the expiration of ttie said space of twenty'-one days in lilto m tinner as warrants of attorney and judgments and execution thereon 9xe deemed and taken to be fraudulent and void by this Part of this Act. Defeasance of 180. If such warrant of attorney or cognovit shall be given subject everywt "" Hint,,f attorney or to any defeasance or condition such defeasance or condition shall be cogiwmt to he written on the same paper or parchment on which such warrant of written on the &une paper. attorney or cognovit actionem shall be written before the time when the lb. s. 79. same or a copy thereof respectively shall be filed. Otherwise such lb. B, 4. warrant of attorney or cognovit actionem shall be null and void to all intents and purposes.

52 No ] INSTRUMENTS ACT The Prothonotary of the Supreme Court shall cause every "Thtinstruwarrant of attorney and cognovit actionem in any personal action and ^t^ttim ' every copy thereof filed in the said office to be numbered ; and shall * ett keep a book or books in his said office in which he shall cause to be w^beok y to " fairly entered an alphabetical list of every such warrant of attorney or containing par-, K. j i j-1-i'j." j -t.j_* ~ticuiarsof eu*h cognovit containing therein the names and additions and descriptions ol warrantof the respective defendants or persons giving such warrants of attorney or g^0""^* 50 * cognovits, and also the names additions and descriptions of the plaintiff «3» s. 5. or persons in whose favour the same shall have been given, together with the number and the dates of the execution and filing of the same or of a copy thereof respectively and the sums for which judgment is to be entered up and also the sums which are specified to be paid by the defeasances or conditions in each warrant of attorney or cognovit actionem and the times when the same are thereby made payable according to the form contained in the Twelfth Schedule to this Act Twelfth which said book or books and every warrant of attorney and cognovit Schedule actionem or copy thereof filed in the said office shall be searched and viewed by all persons at all seasonable times paying to the Prothonotary for every search against one "purson the sum of sixpence and no TQOFft 182. There shall be paid for filing and entering such warrant of Feeofi*..or attorney or cognovit or a copy thereof as aforesaid the sum of one j."f 81 shilling and no more. it>, a. a Any person shall be entitled to have an office copy of each office copies on warrant of attorney or cognovit actionem or of the copy thereof filed as ^* n^, -, -! Al A il VI A A* AC J». *. 82. aforesaid upon paying lor the same at tne like rate as lor olnce copies rb. a. 7. of judgments in each of such courts respectively It shall be lawful for a judge of any court in which such war- satisfaciion may rant of attorney or cognovit actionem is given to order a memorandum ^ar "i>t o1 of satisfaction to be written upon such warrant of attorney cognovit attorney &c. actionem or copy thereof respectively as aforesaid, if it shall appear a ' ** ^ to him that the debt for which such warrant of attorney or cognovit actionem is given as a security shall have been satisfied or discharged No judgment shall be signed upon any cognovit oranywarrant Judgment on of attorney without such cognovit or warrant being delivered to and.filed wsant > ofo r by the Prothonotary who is hereby required to file the same in the order *«rn«y or * I * I ' A * - l - i i j -i crjgiwviu in which it is received; and leave to enter up judgment on a warrant n.8. M. of attorney-above one and under ten years old is to be obtained by order of a judge made ex parte, and if ten years old or more upon a summons to show cause ; and when judgment is signed on a cognovit or on a judge's order authorizing the plaintiff to sign judgment, no declarationto ground judgment shall be necessary or allowed in taxation of costs Every attorney or other person who shall prepare any warrant Defeasances. ' of attorney to confess judgment which is to be subject to any defea- n>. s. ss. * sance shall cause such defeasance to be written on the same paper or - parchment on which the warrant is written, or cause a memorandum in ' "writing to be made on such warrant containing the substance and effect of such defeasance. - 3 Ja 2

53 1594 INSTRUMENTS ACT [oi VIOT. PART X. POWERS OF ATTORNEY. DIVISION 1. BY CORPORATIONS OR COMPANIES. The iiatni Any corporation or company incorporated respectively by SMuuim""' Royal Charter or special Act of the Imperial Parliament, having its * etj - principal office of business and corporate seal in Great Britain or apjnjnugenttt 7 Ireland or any British possession, may by power of attorney under its attohiev^iuider corporate seal authorize one or more agent or agents resident in Victoria» i- jointly or severally according to the discretion of its governing body to demand and recover let sell and manage the property of such corporation or incorporated company in Victoria and execute leases or agreements for leases contracts of sale conveyances with covenants therein of such property; and to receive the purchase moneys or other consideration of such property and give receipts for the same; and to call for settle and adjust all accounts in which such corporation or incorporated company may be concerned; and to demand and recoverall sums of money due to such corporation or incorporated company in Victoria and give releases and receipts for the same; and to commence and prosecute any actions suits petitions or proofs against insolvents or other proceedings at law or in equity in the courts of Victoria in respect of any matter ;W and to appear to and defend any actions suits or other proceedings to be commenced or prosecuted; and to put in defences in such court for such corporation or incorporated company; and to compromise such actions suits or proceedings and to compound debts due to such corporation or incorporated company in Victoria * and to submit to arbitration any disputes in which such corporation 0/incorporated company may be involved in Victoria and execute binding deeds of or submissions to arbitration in relation thereto with such restrictions and qualifications as to suchffoverninffbody shall seem fit. Agent to 188. If any agent appointed by such power of attorney shall L KtKistrar'ontt produce to the Registrar-General al his deputy such power of attorney a copy verified. an(j a copy thereof at full length, and at the same time produce as aforesaid an affidavit of some, credible person by him subscribed made before and certified by any commissioner appointed by the said Supreme Court for taking affidavits (who shall indorse his name on such power of attorney) to the effect that he saw the seal of such corporation or incorporated company duly affixed to such power of attorney and is an attesting subscribing witness thereto, and also an affidavit of two credible persons by them subscribed made before such Registrar or deputy-registrar to the effect that they have compared such copy (upon which they shall indorse their names) with the original power of ' attorney and that the same is a true copy, and shall deposit such copy Registrar to in- and such two affidavits in the office of the said Registrar, such Registrar orsec cate. or ^ deputy shall thereupon indorse upon the said power of attorney and copy a certificate that such power of attorney has been duly produced (a) A corporation by deed authorized its at- dient for promoting or protecting the interests of torney to commence and carry oil any action, suit, the corporation. Held, that such a power did not or other proceeding, and upon the bankruptcy or authorize the attorney to originate proceedings in insolvency of any firm, or upon any such fifm bankruptcy or insolvency, and the attorney having enteringintoacompositionorarrangementwithits presented a petition for the compulsory winding creditors, to prove against the estate of such firm up of a banking company it was dismissed with and to take such other proceedings in relation to costs. In re The Provincial and Suburban Bank, any such bankruptcy, insolvency, composition, or 5 V.L.R. (E.), 159. arrangement as the attorney might think expe-

54 .NO ] INSTRUMENTS ACT under this Act, specifying the time when it shall be so produced, which "Tkeimtmshall be in the form in the Thirteenth Schedule hereto or to the same 'su^u^m^^' effect.. And from the time that such certificate is so indorsed the Thirteenth agent or agents named in such power of attorney may, according to SohedulB - the powers thereby expressed to be conferred, act for and on behalf ^m'thence0* of such corporation or incorporated company and bind it by his or fortlli their acts and deeds as fully and effectually as if such acts or deeds were confirmed by the affixing of the corporate seal; and the acts of such agent or agents in or in relation to any suit action or other proceeding and particularly in putting in defences shall be accepted received and taken in lieu and stead of a similar act of such corporation or incorporated company authenticated by its common seal If such corporation or incorporated company shall by any Revocation of instrument under its common seal altogether or in part revoke the ^"< J 0 < e b8 powers theretofore conferred by such power of attorney or any agent "'"Jl 1 '"^ or agents, such instrument and a copy thereof shall in like manner be Jt 8c ^ produced verified and deposited in the office of the said Registrar- General; and the said Registrar or his deputy shall make a memorandum of such revocation upon the deposited copy of the revoked power, which shall be in the form in the Fourteenth Schedule hereto or to the same Fourteenth effect; and no such revocation shall, as between such corporation or Scheduleincorporated company and persons dealing with its agent or agents, be effectual until such revocation is produced and copy deposited at such office as aforesaid Acopv of any charter from the Crown to any such corporation copy of any., j 1^ J r j j J.V J jv a fi_ 'j charter from the or incorporated company may be deposited in the ornce ot the said crown to such Registrar-General, accompanied by an affidavit of two credible persons telimuilriy in *' T by them subscribed made before and certified by any such commissioner deported. for taking affidavits to the effect that they have compared such copy ** with the original charter and that the same is a true copy The Registrar-General shall cause indexes to be made of such Registrar to powers of attorney revocations and copies of charters, which shall be in be U n dlsde iest0 the form in the Fifteenth Schedule hereto annexed or to the same n>.». «o. effect; and shall receive the fees specified in the Sixteenth Schedule ' i L te S n J l1, ' Ti>"i i I J J J _ I _ ' T \ * ' *,, Schedule. hereto annexed tor the several acts to be done under this i>ivision or sixteenth this Part of this Act. And the several provisions of any Act now or here- Schedlll e- -after to be in force relating wholly or in part to the production and use be^h^f/^m in evidence of copies of deeds and other instruments in writing deposited S^f^J,^ the in the office of the Registrar-General shall be deemed applicable to copies of such powers of attorney revocations and charters deposited under this Act^ And the above several copies deposited as aforesaid shall be deemed in all courts of justice in Victoriaprima facie evidence of the existence execution and contents of the documents of which they respectively purport to be copies. 4 nn T T < j.i ci n J. J? T J- J. * When proceed- Itfis. In any proceedings in the (Supreme Court ot Victoria ings against against any corporation or incorporated company, the said court or sspremeciirt any judge thereof may, upon motion of course grounded upon affidavit, s n cc,urt order that service of any statement of claim rule "summons process smi on offfcer of notice and of all subsequent notices in such proceeding upon any a^nt^tbe'good..'officer manager or agent of such corporation or incorporated company «. * m. shall be deemed good and-effectual service upon such corporation or sws&ovfct" e 8^.*

55 *is96 INSTRUMENTS ACT [54 VICT. 'Theimtm-" incorporated company, a copy of such order being served with such Iswtute im." statement of claim rule summons process or notice under such terms and conditions as to such court or judge respectively shall seem fit. And such further proceedings may be had upon a service made conformable to such order as might be taken against an individual resident in Victoria liable to such proceeding duly served with such statement of Coutfc may revoke such ontor. claim rule summons process or notice. Provided that the said court may upon application made by such corporatiov or incorporated company or such officer manager or agent hevoke vary oo alter such order as to the said court shall seem fit, and trder by whom the ersts arising from such 'application shall be paid. Thetopre ' 8 v 11 J~ j ot md S 1D y"s JJivisioii oi inis ran, of mis iict contamea i^wwv'n^io'?f aeemea or xaiten TO prevent me eneci wnich any power oi prevent effect of attorney nas or WOTUQ naveinnaer any existing law, nor TO prevent, any tx\sti»s*h.wj power wnich the supreme uonrt now has. of directing enective service oi any process or notice upon any corporation incorporates, company or members of a pot>nc company, or any power WHICH any person now has Effect of powers 194. Every deed already executed or which shall hereafter be b/tneotpoiltei" executed, and every receipt signed or to be signed, and everything done {S^turnon 1 " ty ati y person or persons within the scope of any power of attorney seii. given or to be given to an agent or agents by any corporation howsoever to. s. os. an(j wheresoever incorporated under a seal purporting to be the common seal of the corporation giving the power, shall be deemed to have been and shall be as valid and effectual, although sealed with the seal of or signed or done by such person or persons, as if such deed had been executed with or receipt given or thing done under the common seal of the corporation giving the power. And any such power of attorney may be filed under the provisions of Division two of this Part of this Act, and every power of attorney so as aforesaid given or to be given by any corporation and filed as aforesaid shall continue in force until the revocation thereof, or the dissolution of the corporation giving the same, shall have been registered as by Division two of this Part of this Act is provided. False affidavit 195. Any person making a false affidavit under the provisions of uttcring a this Division of this Part of this Act shall be deemed guilty of and punishable. liable to be prosecuted for perjury. ^ And any person forging any **. document used under the said Division or wilfully uttering any forged document as genuine under the same provisions shall be deemed guilty of felony and liable to be prosecuted for forgery or uttering a forged document respectively. DIVISION 2. POWERS OF ATTORNEY BY INDIVIDUALS. Thingsdone 196. Every power of attorney heretofore made or hereafter to be auomey otter"- made (whether the person making the same was or be at the time of tit u tne making thereof within Victoria or not) shall continue in force insolvency or until the deatn w ban.rtruptcy insolvency or (if a female) the marriage (re) On a conveyance of real estate purporting the principal was alive at the date of the registo be executed under a power of attorney pre- tration of the power. In vt Woods, 6 W.W. & viously registered, evidence must be given that. a'b. (L.), 233 ; N.C., 26.,

56 .No ] INSTRUMENTS ACT of the principal or the revocation of such power shall have been regis- "Theinstrutered as hereinafter mentioned. And every act within the scope of the SS^ise*" 1 ' powers and authority conferred upon him which shall hereafter be done * 95 * j> j i ^ L j i x i j. i i. i J*L l j i i t i - i. revocation and performed or submitted to by the attorney alter such death bankruptcy before registro. insolvency marriage or revocation as aforesaid and before registration {jj*v^."**' t0 thereof as hereinafter mentioned shall, in favour of any person who see 22 & 23 vict. shall bon&jide and without notice of such death marriage insolvency ' 35a * 26 ' bankruptcy or revocation have dealt with such attorney in the name of his principal, be as effectual in all respects as if such death bankruptcy insolvency marriage or revocation had not happened or been made In case any person shall have heretofore confirmed or shall confirmation of 1 _ ^. > i. ± * * J. * - - L ~ j. j ~. - n - the acts of the hereafter conhrm in writing any conveyance mortgage deed or other attorney to be specialty or simple contract in writing purporting to be executed or ^uttons'uct^on signed by such person by his attorney or in case any person shall have <* v power. heretofore confirmed or shall hereafter confirm in writing any act done a - * Qe - performed or submitted to by his attorney or by any person purporting to be such attorney such confirmation shall be conclusive evidence of the sufficiency of the authority of such attorney to execute sign or do such conveyance mortgage deed or other specialty simple contract or act at the time of the making executing or doinw thereof without production or proof of any t>ower of attorney (*) 19o. -Lnis Division 01 this Jrart 01 this -Act shall be deemed and These provisions i- A A 1 i. ' 1 K k i L 1 rt to apply t0 taken to extend ana appiy to every insolvency or oankrupicy wnatrso- English ever, whether the same shall happen and take place under any Act of '* the Legislature of Victoria or under any other law affecting property in Victoria. 199, It shah be lawful for any person who now is or shall here- Powers of ottorj., 1 j.i j n /» 11 jr I 1 ney to be filed..alter be authorized by any power 01 attorney lor any purpose- whatso- _ ever to nle the same in the office 01 the Registrar-Greneral on payment of a fee of five shillings ; and no conveyance mortgage or other specialty^1 which shall hereafter be executed by the attorney shall (unless confirmed as aforesaid) be of any force or validity whatsoever, unless the power of attorney shall have been filed as hereinbefore directed.^* 300. The death bankruptcy insolvency or (if a female) the Registry 0f. j,,1 * 1 ru i- & i- -L revocation. marriage ol the principal or the revocation 01 any such power shall bejfc_ t M registered as next hereinafter mentioned (that is to say): A declaration by any person that the principal is married or dead or has become bankrupt or insolvent, or a notice under the hand of the principal or of some person authorized by him in that behalf that he has revoked such power, shall befiledin the said office in the same manner as powers of attorney are lastly hereinbefore directed to be filed, and shall be annexed to the power to which it relates. SOI. Upon the filing of any such power declaration or notice as fie^st -togive -* >. ; J i\*i T>>.~;^J. n\, _ i i.,.ii * J *. J-U,, 1 vu. ^ ^ ^ e J.V ^receipt atoresaidj the Kegistrar-t^eneral shall indorse on the back thereof the _ "\ number thereof and give a receipt for the same. (<t) This section relates to both realty and per- is not (unless confirmed) of any' validity either sonalty, but in section.199 the word "specialty" before or after the filing of the power. Pratt v. is limited to land. Stacpoolv. Glass, 1 V.R. (L.), Williams, 6 W.W. & a'b. (L.), 22 Wherean 195. applicant for administration holds a, power of (b) See note to section 197, ante. attorney for the next of kin registered, such {cj If a deed be executed by an attorney under power need not be filed in the Supreme Courtpower, before the filing of the power, the deed. In re Mitchell, 3 A.J.R., 18.

57 1598 INSTRUMENTS ACT [54 VICT. '* The fft#f.n.t~ 202. The ltegistrar-general shall cause to be made an index of ssisfc waf" 8, every power of attorney declaration and notice filed under this Division of this Part of this Act; and every such index shall be in the form contained in the Seventeenth Schedule to this Act. and shall contain the several matters and particulars indicated thereby; and the Registrar-General shall cause to be inserted therein in alphabetical order and at full length the christian name and surname together with the description and addition of the principal as the same are set forth in the power of attorney; and such index shall be open to public inspection at all reasonable times on payment of one shilling for every power declaration or notice that may be searched for; and the person paying the same shall be entitled to peruse the power declaration or ' notice in respect of which such fee shall have been paid. Influx. Seventeenth Schedule. onfliing power 203. After any power of attorney shall have been filed under this P^duSion'wbe Division of this Part of this Act, no action or suit shall be brought or inoperative. maintained upon any covenant or agreement for the production of such lb. s power of attorney; and if any action or suit shall be so commenced, it shall be a sufficient answer thereto that such power has been filed under the provisions hereinoeiore contained. Punishment for 204. Any person who shall wilfully efface deface mutilate or defacing &a destroy any power of attorney declaration or notice respectively which lb* s. 10$. shall have been filed under the provisions of this Division of this Part of this Act shall be guilty of a misdemeanor, and shall on conviction thereof be kept to hard labour on the roads or other public works of Victoria for any term not exceeding five years. Securities given for consideration arising out ot illegaltransac* tions not to be void but to be deemed to have boon given tar an illtigal consideration. It. s & 6 Will IV. "Lr* "IX 3S Id euch securities stinll be deemed to be paid on ocooantof tbo PAET XI. MISCELAANEOUS PROVISIONS. S05. So much of the Act made and passed in the sixteenth year of the reign of His late Majesty King Charles the Second intituled " An ect against Deceitful Disorderly and Excessive Gaming " and of the Act made and passed id the ninth year of the reign of "er late Majesty Queen Anne intitined e An hct for ththetter preventinl of Excestiee ann Deceitful Gaming" as enactt that any note bill or mortgage shall be absolutely void shall be and the same is hereby repealed; but nevertheless every note bill or mortgage which if this Act had not been passed would by virtue of the said hereinbeforementioned Acts or any of them have been absolutely void shall be deemed and taken to have been made drawn accepted given or executed for an illegal consideration; and the said several Acts shall have the same force and effect which they would respectively have had if, instead of enacting that any such note bill or mortgage should be absolutely void, such Acts had respectively provided that every such note bill.or mortgage should be deemed and taken to have been made drawn accepted given or executed for an illegal consideration. Provided always that nothing herein contained shall prejudice or affect any note bill or mortgage which would have been good and valid if this Act had not been passed Iu case any person shall make draw give or execute any no^e ^ill or mori-cage for any consideration on account of which the same is by either of the Acts in the last preceding section mentioned declared.to be. void, and such person shall actually pay to any indorsee

58 .No ] INSTRUMENTS ACT holder or assignee of such note bill or mortgage the amount of the "i^jjue. ' money thereby secured or any part thereof, such money so paid shall be &%w%tm'^' deemed and taken to have been paid for and on account of the person * m - to whom such note bill or mortgage was originally given upon such th?*i n m^wss illegal consideration as aforesaid; and shall be deemed and taken to be "s ltl3u y «iren - a debt due and owing from such last-named person to the person who 1*i ' IV ' shall so have paid such money; and shall accordingly be recoverable by action at law in the Supreme Court There shall be no limit to the amount of interest which any Any interest person may lawfully contract to pay; and in all cases where interest SSctedto'ioe for the loan of money or upon any other contract may be lawfully ^r^*" - recovered or allowed in any action suit or other proceeding in any court per cent, maa j» i L *,_ i. i _. i i * i_._. _.r jli be allowed' of law or equitv. but where the rate of such interest has not been _,_ t i i i i, lb. _ previously agreed upon by or between the parties, it shall not be law- Heavier,. ful for the party entitled to interest to recover or be allowed in any such - *> action suit or other proceeding above the rate of eight pounds for the interest or forbearance of one hundred pounds for a year ; and so after that rate for a greater or lesser sum or for a longer or shorter time No action shall be brought whereby to charge any executor Promises ana. or administrator upon any special promise to answer damages out of JU 0 f enwbj ' ; his own estate, or whereby to charge the defendant upon any special u,, g, iw. ) promise to answer for the debt default or miscarriages ofanother29car.il. person,w or to charge any person upon any agreement made upon con- ** 3 * *' sideration of marriage, or upon any contract or sale of lands tenements, or hereditaments or any interest in or concerning them/ 1 '* or upon any agreement that is not to be performed within the space of one year from (a) A contract; to pay creditors a composition which he might raise. Plaintiff cleared and sowed of 10s. in the upon the amount of the debts due the land, reaped the crop, and removed it for safe by a third person is not within: this section, custody to defendant's house on another part of and need not be in writing. Gray v. Pearson, the land. In an action for trover for crop; 3V.L.R. (L.), 81. MM, that neither " The LwtdAct 1869" nor this A guarantee for the price of certain goods did section afforded any defence. Lorenz v. Htff&rnot contain the name of the vendor, who was to nan, 3 V.L.R. (L.), 129. be indemnified, but it was attached by the guaran- An agreement between A. and B., who was a tor to an invoice of the goods,-by folding together wood-carter, that in consideration of A. allowing several times the corners of both documents. fi. the use of a road across the residence area of Held, that the two documents were to be con- A., that B. would pay A. 2s. fid. for every load of sidered as one, and were a sufficient contract. wood carted over the land, is not an interest in McEwait v. Dynon, 3 V.L.R. (L.), 271. land within this section.. Sintiidi v. 'MUanoi (b) A verbal agreement for the purchase of right 8A.L.T., 5. to depasture sheep upon land held under a pas- A parol contract for the sale of land may be toral lease under section 47 of " The Land Act valid although by reason of its not being in 1869" is such a contract. IfrwtteHv. Robertson, writing no action can be brought upon it, nor 12.V.L.R., 560. probably any action brought in which the estab- A contract for the sale of fixtures is not within lishment of the contract would be necessary to this or section 210, so as to require a memo- a plaintiffs case. Watson v. Royal Permanent randum in writing. Malmsbury & Co. v. Tucker, Building Society, 14 V.L.R., V.L.R. (L.), 213. A defendant.cannot claim the protection of this " A contract for partnership in land speculation section in an action for the specific performance of is not within this section. -~Kilpatrick v.mackay, a contract for the sale of land, and, at the same 4 V.L.R. (E.), 28. time, retain a deposit forfeited under a condition An agreement not to distrain is not an agree- providing that the deposit should be actually merit concerning an interest in land. Ah Ghm v. forfeited to the vendor, and the vendor should be Thiel, 13 V.L.R., at liberty to rescind without notice if the pur- The plaintiff contracted orally with the defen- chaser should fail to comply with the conditions dant that he should clear and plough a part of de- of the contract. ^firier* v. Watson, 14 V.L.R., fendant's land, and take as compensation the crop 771. ~ ' ''

59 1600 INSTRUMENTS ACT 18&0. [54 VICT. Tkc itwtru. the making thereof/** unless the agreement upon which such action shall 'stmut'im"'' be brought or some memorandum or note thereof^ shall be in writing and signed'** by the party to be charged therewith or some other person thereunto by him lawfully authorized. Awnts for sale 209. Notwithstanding anything in this Act contained no action shall ofland to be.,,, P i *i j? i j A: i u J'j. mithorizcd in be brought upon any contract or sale ol lands tenements or neredita- T^'. ments or any interest in or concerning them if the agreement or the Act No. 872». 1., J,. i i ' i i UL i fi i I I i i_ memorandum or note thereof on which such action shall be brought be signed by any person other than the party to be charged therewith unless such person so signing be thereunto lawfully authorized in writing signed by the party to be so charged. Contmetetot A,_.,.,,..,..» salesof goodsfor 310. No contract lor the sale of any goods wares and merchandises^* ^n^oun (a) Plaintiff or declared or ^ on p r ja ce contract 0 f ^en of phiring 0un( ]g for sterling or upwards shall be allowed to be a year. He proved an oral hiring in November as WUliaiae and Holroyd, J J. " A person, may by his acts and words so conduct himself as to estop him from saying that a written contract is manager for a year, to commence in December. In the February following he received a telegram from his employer "D.appointed manager, you remaining on as traveller, and he remained accordingly. Held that this did not constitute a new contract of hiring for a year but a new contract to continue for the residue, of the year as traveller instead of manager and that there was a variance between the contract declared on and that proved ; but leave to amend and new trial granted. Held also that although the original contract was void under the "Statute of Frauds " the new contract was not obnoxious to the Statute even though some of its terms miirlit have to bn ascertain by reference to'the original contract Dale v McCvlloeh & Pa 9 V L K (L) 14A (b) To connect documents to make a sufficient memorandum, they must be consistent as to the terms of the contract. Corcoran v. O'Bourke, 14 V.L.R., 889. To constitute a sufficient memorandum out of peveral documents, those documents must be incorporated by actual reference; parol evidence to connect them is inadmissible, although the subject-matter is similar and the sale is by the same agents..wicftoks v. Davis, 15 V.L.R., 184. Qucers, whether a memorandum of an agreement entered into and signed by the vendor which after particularly describing the land agreed to be sold has, as the only reference to the vendor, the words "and known as the property of Mr. Murray," contains a sufficient description of the vendor to comply with the Statute. Cordon v. Murray, 15 V.L.R., 110. A contract for the sale of a piece of land describing it as having a frontage of 50 feet to a street named, with a right-of-way at the rear, but specifying no depth nor any width at the rear, is sufficient within the "Statute of Frauds." CriehtiM v.-morris, 10 V.L.R. (E.), 338. Where an agent contracted to sell land as agent for D. Young, the vendor's true name being A, Young: Held, that parol evidence was not admissible to prove the real name of the vendor, and that there was no sufficient memorandum of the contract within this section. Quire, whether two parcels of land, intersected by a road not the vendor's property, would be properly described as "all that piece or parcel of land " &c. Per not of Frauds."" a sufficient Where memorandum a vendor within had the so estopped ' Statute himself, but there was a subsequent sale to a purchaser for value the court dismissed a bill for specific performance of the contract without costs as against the vendor but with costs as against the subsequent purchaser Ford v. Young 8 V.L.R. (B.) 93. A contract for the sale of land was in blank as to the purchaser's name, the amount of purchasemoney and deposit, the date and the signature, but the quantity and position of the land were given in a schedule; the conditions provided for the mode of payment. On the contract was an indorsement "Conditions of sale to T. M., 20an acre, B. Q-. and Co., Auctioneers, Ballaarat." If eld, that there was a sufficient contract to satisfy this section. Glohesy v. Maher, 6 V.L.R. (L.), 357. The memorandum must identify the property sold. It is not sufficient.for a vendor to say "I hereby agree to sell my properly to Mr. C. If part of the purchase money is to be paid by bill, the memorandum or contract must state the term for which the bill is to run. Corcoran v. O'Rourhe, 14 V.L.R., 889; see also Pudney v. Strong, 14 V.L.R. 759 and Parker v. Barnett. 16 V.L.R (c) A contract for sale of land entered into by an auctioneer "on account of the vendor" and " as agent of the vendor," but not naming the vendor, is void under this section. But where the vendor signed replies to requisitions on title referring to such contract: Held, that there was then a sufficient signature. Buxtf/n v. Bellin, 3 V.L.R. (B.), 243; and see Arvier v. Watson, 14 V.L.R., 771. A contract note for the sale of land signed by the clerk of the vendor's agent in the agent s name and under his. direction was sufficient. Boyie v. Basan, 8 A.L.T., 82 ; but see following section.. (d) An appellant sent an order in writing to the respondent as follows :." You will please supply the order my son will give you, and oblige yours, Isaac Lyons." The particulars of an apparatus required had already been given by the appellant's manager.' The appellant's son then ordered that such apparatus should be made. Before it was completed he countermanded the order. Upon plaint in county court for work and labour there

60 No ] INSTRUMENTS ACT good, except the buyer shall accept^ part of the goods so sold and < The instmactually receive the same or give something in earnest to bind the ssut^mf"' 5 ' bargain or in part of payment; or unless some.note or memorandum * loa in writing of the said bargain be made and signed< fc > by the parties ^^v"" was a verdict for more than 10. On appeal: Held, that this was a contract which when completed would result in the sale of a chattel of the.value of more than 10, and.was not the subjectmatter of a count for work and labour; that a memorandum in writing of the contract was necessary; and that the memorandum in this case was insufficient. Lyons v. Hughes, 1 V.L.R. (L.), 1. (a) A. offered to B. certain sheep and lambs of a particular class at a price exceeding 10 for the whole. B. agreed to take them if after inspection he should approve of them. They were inspected and approved of, and then remained in the hands of A. to oblige B., and at his request. While in the hands of A. some died. B. sent an agent with a written authority to receive the sheep and lambs offered inspected and approved of stating the number. A. saw the written authority. Iw delivered to the agent all offered inspected and approved of except those which had died* and excepting also a few lambs which ho kept back, B. refused to take what had been delivered to the agent. A. sued B for the price as goods sold and delivered and on the issue of never indebted gained a, verdict On rule nisi for nonsuit : Held that there had been no acceptance by B. within this section The delivery to B 's agent of fewer sheep and lambs than those inspected and annrovedof was one wmeh the agent's 'authority forbade him to take asa knew andone wkinl, B.AmJ;.tnJ.. L»A..!kL Tla.wnu.ii jj. repuuiabeu as soon. as possipie. j.ne former ju>i>pnt-mrm hv R h h left *li inula with A u«v 1 tlh 1 f.,', t p c e o y t tne os ij I,» an ^cepjance?* each auai sneep or oi any portion or uie wnoie lot asco la enure to make anewc^tract concerning tne^lesser number delivered totheageiit. Adams v. Brown, 2 W. & W. (L.), 176. H. and O. ordered of W. W. & Co. iron pipes, to be delivered by the railway atballaarat. W. W. & Co. forwarded pipes by train, but H. and O., deeming them not according to the weight, left the pipes lying at the station to the order of W. W. & Co. The correspondence did not expressly or by reference identify any particular pipes. In an action for goods sold, &c,, W. W. & Co. recovered the price of the pipes. On rule for nonsuit: Held, that there had been no acceptance to complete a sale and delivery; that extrinsic evidence to identify any particular pipes as those bargained and sold under the correspondence could not be given; and that as the correspondence alone did not identify any particular pipes it did not constitute a memorandum in writing of the contract sufficient within this section fm -je v Hunt 1 W W. & a'b. (L.) 66 ' * Where there is no sufficient memorandum of the bargain, for the sale of goods, the mere receipt and retention of the goods for a few days by the purchaser is evidence upon which a jury may find that -the purchaser accepted them. Service v. Walker, 3V.L.R. (L.), 182. Where a purchase was made on behalf of a com- pany of certain machinery, of which delivery was to be taken where it lay, and part was removed by a carrier on behalf of the company, butwas stopped in transitu: Held, that this did not show an acceptance within this section so as to render a note in writing unnecessary. J/citw v. Duke Co., 5 V.L.R. (L.), 449. An agent authorized to purchase goods for a principal, for use upon the principal's premises, has no implied authority to direct their delivery elsewhere; if, after selecting and purchasing goods, he give such direction, delivery at the place so directed does not amount to acceptance within this section, Mitchell v. Watson, 6 V.L.R. (L.), 493. (b) It is not necessary that the signature should be after or at the end of every part of a paper which it purports to cover. Gladstone v. Sail, 1 W. &W. (E.), 277. Where the name of the purchaser of several consecutive lots sold at an auction was entered in the auctioneer's book, in the proper column, at length for the first lot, and the other lots were marked "l>o." in the proper column under the name of the purchaser, the signing of "Do." does not constitute a sufficient signature under this section to bind the purchaser as to the lots signed "Do." Williams v. Boss, 2 W. & W. (L.), 285. An auctioneer employed his clerk at a sale by auction to act as amanuensis by writing down in the sales book the name of each person respectively to whom the lots were knocked down. In an action for goods sold and delivered, perstawell, O.J. " I should have thought that, where the auctioneer's clerk acted as amanuensis and wrote down the names of the purchasers, these names being first called out and no dissent being made, the bidders would be bound. It would be necessary however that the names should be called out by the auctioneer's clerk to show that he was aware of the person to whom the goods were knocked down There is little doubt that this was done in this case but there is no direct evidence of it There is however evidence of ratifi. cation by the defendant; His letter describing himself as a purchaser cannot be got over " Moss v Cohen. 3 V R. (L ) 205 Quaers, whether, and in what manner, an auctioneer's clerk can bind a successful bidder by writing his name in the auctioneer's book during the auction sale. Per Fellows, J., Service v. Walker, 3 V.L.R. (L.), 182. At a sale by auction the auctioneer warranted certain flour to be first-class Rochester flour; some of it was knocked down to the defendant, whose name was entered in the book by the auctioneer's clerk. A bought note was afterwards sent to the defendant, describing the flour as " Rochester flour," and omitting "first-class," together with a bill for acceptance for the price. The defendant refused to accept either the note or the acceptance and declined to take the ffour. Held that there was no evidence of any contract to satisfy this section and embodying the warranty on which the rriaintiff relied ^-Pratt v. Bush 5 V L R (L) 421. ",

61 1602 INSTRUMENTS ACT _54 VIOT. " The lntfiru- to be charged by such contract, or their agents thereunto lawfully *ztjyfa /^iftu" au+horized**^ sestoextlls f 2}" i P * 01^8 sontained ii nhe last preeeding section ssall to cases where extend to all contracts tor the sale of goods ot the value oi ten pounds deiivli^'nusiiie ^f^ng an d upwards, notwithstanding the goods may be intended to be &e. delivered at some future time, or may not at the tune of such contract sow. IV* CMS.7. liability of members 0f unregi3 tered companies. Ait No ».. B Ceo..V. 19 "so Vict. ft 97 a. ia. No acknowledgment shall be deemed sufficient unless it be in writing or by part payment. "The lnsttrumenu tout Sec. Statute 1864 " s, 110. Joint contractors. t* Geo. IV. a.14. Proviso for the caseof joint contractors. actually made procured or provided or fit or ready for delivery or some act may be requisite for the making or completing thereof or rendering the same fit for delivery No action (i> shall be brought whereby to charge any member f a partnership or co-adventure (established or to be established for mining purposes and not tegiisered under the Acc No. 228) upon any simple contract made by or with any other member of such partnership or co-adventure on behalf of the same, unless such contract or some memorandum or note thereof shall be made or contained by or in some writing to be signed by the defendant in such action/* 5 ) SI3. In actions grounded upon any simple contract, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract whereby to take any case out of the operation of the provisions of the Act made and passed in the twentyfirst year of the reign of King James the First chapter sixteen intituled "An Act for Limitation of Actions and for avoiding of Suits at Law," or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby or by the agent of the party chargeable thereby duly authorized to make such acknowledgment or promise. And where there stmll be two or more joint contractors or executors or administrators of any contractor, no such joint contractor executor or administrator shall lose the benefit of the said Act so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them. Provided always that nothing herein contained shall alter or take away or lessen the effect of any payment of any principal or interest made by any person whatsoever. Provided also that in actions to be commenced against two or more such joint contractors or executors or administrators if it shall appear at the trial or otherwise that the plaintiff though barred by the saidact or by this section of this Act as to one or more of such joint contractors or executors or administrators shall nevertheless be entitled to recover against any other or others of the defendants by virtue of a new acknowledgment or promise or otherwise judgment (a) At a sale by auction where the auctioneer's clerk writes the names of the purchasers for them in the auctioneer's book, the purchaser is not bound, in the absence of evidence that he knew of this mode of proceeding and by acquiescence authorized the clerk to write his name for him. Hill v. Willis, 6 V.L.R, (L.), 193. In an action by J.F. against M.M. for goods sold, tec, there was a verdict for the plaintiff. Defendant appealed on the ground that there was no contract under this section. The goods were sold by T., on behalf of J.F., to M.M., the bought and sold notes being signed by T. Held, there was evidence of a contract, and appeal dismissed. -ifoss v. Fowler, 3 A.J.E., 122. (ft) "Action" is used strictly, and means an " action " on a contract by a third person against the partnership, and that no evidence in writing of. authority is necessary to establish liability between muting partners as to expenditure incurred by other partners with sufficient authority. * Allardyce v. Cunningham, 5 A.J.R., 162. (c) Under this section a member of an unregistered mining company is not liable upon a.contract, niade by a manager or agent of the company to whose appointment he did not assent,.and to' whom he did not give any authority in writing. Jtennkk v. Sarkas, 2 V.ItR. (I*.), 269.

62 No ] INSTRUMENTS ACT maybe given and costs allowed for the plaintiff as to such defendant'or "Theinstrudefendants against whom he shall recover, and for the other defendant 'sfjthteum:' 0 ' or defendants against the plaintiff. Provided also that if any defendant Pleas in abateor defendants in any action on any simple contract shall plead any ment ' matter in abatement to the effect that any other person or persons * < u > i. 1 a' ought to be jointly sued, and issue be joined on such plea, and it shall appear at the trial that the action could not by reason of the said Act of the twenty-first year of the reign of King James the First or of this section or either of them be maintained against the other person or named in such plea or any of them the issue joined on such plea shall be found against the party pleading the same No endorsement or memorandum of any payment, written or Endorsements made upon any promissory note bill of exchange of other writing by or wv m ji i i T f i» n J J l 1 j l n 1 lii-t-^k* on the benali ot the party to whom such payment shall be made, shall Ib t3 be deemed sufficient proof of such payment so as to take the case out of the operation of the said Act of the twenty-first year of the reign of.king James the First. And the said Act and the last preceding section simple contract of this Act shall be deemed and taken to apply to the case of any debt ^J^et^ofr.'' 1 on simple contract alleged by way of set-off on the part of any defendant either by plea notice or otherwise No action shall be maintained whereby to charge any person confirmation of upon any promise made after full age to pay any debt contracted during {J^SSus" infancy, or upon any ratification after full age of any promise or simple 16. $..112 contract made during infancy, unless such promise or ratification shall Ib - * 6 - be made by some writing signed by the party to be charged therewith Any person or persons intrusted for the purpose of consign- Factorsd-.ment or of sale with any goods wares or merchandise and who shall $JSS 9 a^in" 6 have shipped such goods wares or merchandise in his her or their own Jj}^^1 olmers name or names, and any person or persons in whose name or names anv so as to give J 1 1 * i- i 11 1 i'ii., validityto goods wares or merchandise shall be shipped by any other person or contracts with persons, shall be deemed and taken to be the true owner or owners!^ d^upon B thereof so far as to entitle the consignee or consignees of such goods th * fa i * 0 ' such wares and merchandise to a lien thereon in respect of any money or n. e. m. negotiable security or securities advanced or given by such consignee or 6 G* - IV. consignees to or for the use of the person or persons in whose name or names such goods wares or merchandise shall be shipped, or in respect of any money or negotiable security or securities received by him her or them to the use of such consignee or consignees, in the like manner to all intents and purposes as if such person or persons was or were the true owner or owners of such goods wares and merchandise. Provided Proviso as to such consignee or consignees shall not have notice by the bill of lading noti<x - for the delivery of such goods wares or merchandise or otherwise at or before the time of any advance of such money or negotiable security or of such receipt of money or negotiable security in respect of which such lien is claimed that such person or persons so shipping in his her or their own name of names or in whose name or names any goods wares of merchandise shall be shipped by any person or persons, is or are not "the actual and bond fide owner or owners proprietor or proprietors of such goods wares and merchandise so shipped as aforesaid, any law usage or custom to the contrary thereof in anywise notwithstanding. Provided also that the person, or persons in whose name or names any AndastoMtIS such goods wares or merchandise are so shipped as aforesaid shall be?' dliuwver y-,