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contracts of

pledge.

Contracts of pledge. Notice of

ownership not

to affect such

contracts.

Case where

the pledge orin

consideration of the delivery

of other goods,

&c., on which

the party delivering them hath a lien,

provided for.

Proviso as

to amount of lien in such

case,

Act not to

when the party advan

cing, &c., has

agent has

no power to

pledge, or is acting mala fide.

Nor to antece

any original loan, advance or payment made upon the security of such goods and merchandize or documents, as also for any further or continuing advance in respect thereof, and such contract or agreement shall be binding upon and good against the owner of such goods and merchandize, and all other persons interested therein, notwithstanding the person claiming such pledge or lien may have had notice that the person with whom such contract or agreement is made is only an agent.

III. And be it enacted, That where any such contract or agreement for pledge (gage) lien or security shall be made in consideration of the delivery or transfer to such agent of any other goods or merchandize or document of title or negotiable security, upon which the person so delivering up the same had at the time a valid and available lien and security for or in respect of a previous advance by virtue of some contract or agreement made with such agent, such contract and agreement, if bonâ fide on the part of the person with whom the same may be made, shall be deemed to be a contract made in consideration of an advance within the true intent and meaning of this Act, and shall be as valid and effectual to all intents and purposes and to the same extent as if the consideration for the same had been a bonâ fide present advance of money: Provided always, that the lien acquired under such last mentioned contract or agreement upon the goods or documents deposited in exchange, shall not exceed the value at the time of the goods and merchandize which, or the documents of title to which, or the negotiable security which shall be delivered up and exchanged.

IV. Provided always, and be it enacted, That this Act and every matter and thing extend to cases herein contained shall be deemed and construed to give validity to such contracts and agreements only as in this Act mentioned and to protect only such loans, advances and notice that the exchanges as shall be made bonâ fide and without notice that the agent making such contracts and agreements as aforesaid has no authority to make the same or is acting malâ fide in respect thereof against the owner of such goods and merchandize; and nothing herein contained shall be construed to extend to or protect any lien (gage) or pledge for or in respect of any antecedent debt owing from any agent to any person with or to whom such lien (gage) or pledge shall be given, nor to authorize any agent entrusted as aforesaid, in deviating from any express orders or authority received from the owner; but that for the purpose and to the intent of protecting all such bonâ fide loans, advances and exchanges as aforesaid, (though made with notice of such agent not being the owner, but without any notice of the agent's acting without authority,) and to no further or other intent shall the owner and all other persons interested in such goods and merchandize be bound.

dent debts of the agent, or to

justify his act

ing against ex

press instructions of the

owner.

But the owner

to be bound only to a certain extent.

What shall

be deemed documents of title.

V. And be it enacted, That any bill of lading, warehouse-keeper's or wharfinger's receipt or order for delivery of goods, or any bill of inspection of pot or pearl ashes, or any other document used in the ordinary course of business, as proof of the possession or control of goods, or authorizing or purporting to authorize either by endorsement or by delivery the possessor of such document to transfer or receive goods thereby represented, shall be deemed and taken to be a document of title within the Agent posses- meaning of this Act; and any agent entrusted as aforesaid and possessed of any such document of title, whether derived immediately from the owner of such goods and merchandize or obtained by reason of such agent's having been entrusted with the possession of the goods and merchandize or of any other document of title thereto, shall be deemed and taken to have been entrusted with the possession of the goods and merchandize represented by such document of title as aforesaid; and all contracts

sed of such document to be deemed in possession of the goods to which it relates.

pledging

such docu

to deliver, &c.,

Also contracts such goods or documents, if afterwards received withnon-authority of Agent.

the same be

pledging or giving a lien upon such document of title as aforesaid shall be deemed and Pledging of taken to be respectively pledges (gages) of and lien upon the goods and merchandize ments to be a to which the same relates, and such agent shall be deemed to be possessor of such pledging of the goods. goods and merchandize or documents of title whether the same shall be in his actual custody or shall be held by any other person subject to his control or for him or on his behalf; and when any loan or advance shall be bona fide made to any agent entrusted with and in possession of any such goods and merchandize or documents of title as aforesaid on the faith of any contract or agreement in writing to consign, deposit, transfer or deliver such goods and merchandize or documents of title as aforesaid, and such goods and merchandize or documents of title shall actually be received by the person making such loan or advance, without notice that such agent was not authorized to make such pledge or security, every such loan or advance shall be deemed and taken to be a loan or advance upon the security of such goods and merchandize or documents of title, within the meaning of this Act, though such goods and merchandize or documents of title shall not actually be received by the person making such lean or advance till the period subsequent thereto: and any contract or agreement whether made direct with such agent as aforesaid or with any clerk or other person on his behalf shall be deemed a contract or agreement with such agent; and any payments made whether by money or bills of exchange or other negotiable security shall be deemed and taken to be an advance within the meaning of this Act; and an agent in possession as aforesaid of such goods and merchandize or documents shall be taken for the purposes of this Act to have been entrusted therewith by the owner thereof, unless the contrary can be shewn in evidence.

VI. Provided always, and be it enacted, That nothing herein contained shall lessen, vary, alter or affect the civil responsibility of an agent for any breach of duty or contract or non-fulfilment of his orders or authority, in respect of any such contract, agreement, lien or pledge (gage) as aforesaid.

out notice of

Contracts with with the Agent. Payments in

the Clerk and

bills of exchange, &c.,

Possession of Agent to be consent of

deemed with

owner, unless the contrary be shewn.

Act not to responsibility

impair the
of the Agent
to his princi-

pal.

Agent pledg

ing goods, &c.,

for his own benefit, in bad trary to in

faith and con

for such

VII. Provided always, and be it enacted, That if any Agent entrusted as aforesaid shall, contrary to, or without the authority of his principal in that behalf, for his own benefit and in violation of good faith, make any consignment, deposit, transfer or delivery of any goods and merchandize or documents of title so entrusted to him as aforesaid, as and by way of a pledge, (gage) lien and security, or shall, contrary to or be guilty of a without such authority, for his own benefit and in violation of good faith, accept any misdemeanor. advance on the faith of any contract or agreement to consign, deposit, transfer or deli- Punishment ver such goods and merchandize or documents of title as aforesaid, every such agent offence. shall be deemed guilty of a misdemeanor, and being convicted thereof shall be sentenced to suffer such punishment by fine or imprisonment in the Common Gaol for any term not exceeding two years, or by both as the Court having jurisdiction in such cases shall award; and every clerk or other person who shall knowingly and wilfully act and assist in making any such consignment, deposit, transfer or delivery, or in accept ing or procuring such advance as aforesaid, shall be deemed guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of such Court to any of the punishments which such Court shall award as hereinbefore last mentioned: Provided nevertheless, that no such agent shall be liable to any prosecution for consigning, depositing, transferring or delivering any such goods and merchandize or documents of title, in case the same shall not be made a security for or subject to the payment of to an amount any greater sum of money than the amount which at the time of such consignment, that due him

The like of aiding or

any Clerk

abetting in

such offence.

Proviso:
Agent not

liable to pro-
secution for

pledging goods

not exceeding

Proviso:

Conviction not

to be evidence against Agent

in any civil proceedings. A gent not

liable to be

convicted, af

ter having dis

closed the act

on oath in cer

tain civil pro

ce.dings.

Act not to impair the

rights of the owner to re

dean the good, &c, pledged.

Or to prevent

his recovering any balance

from the party

to whom they

were pledged.

Proviso as to the case of the Bank.

ruptcy of the Agent.

Interpretation clause.

Act not to ex

done before

the passing

thereof.

deposit, transfer or delivery, was justly due and owing to such agent from his principal, together with the amount of any bills of exchange drawn by or on account of such principal, and accepted by such agent: Provided also, that the conviction of any such agent so convicted as aforesaid, shall not be received in evidence in any action at law or suit in equity against him; and no agent entrusted as aforesaid shall be liable to be convicted by any evidence whatsoever in respect of any act done by him, if he shall at any time previously to his being indicted for such offence, have disclosed such act on oath, in consequence of any compulsory process of any Court of Law, Equity or Admiralty in any action, suit or proceeding which shall have been bonâ fide instituted by any party aggrieved, or if he shall have disclosed the same in any examination or deposition before any Commissioner of Bankrupts.

VIII. Provided always, and be it enacted, That nothing herein contained shall prevent such owner as aforesaid from having the right to redeem such goods and merchandize or documents of title pledged as aforesaid, at any time before such goods and merchandize shall have been sold, upon repayment of the amount of the lien thereon or restoration of the securities in respect of which such lien may exist, and upon payment or satisfaction to such agent, if by him required, of any sum of money for or in respect of which such agent would by law be entitled to retain the same goods, merchandize or documents, or any of them, by way of lien as against such owner; or to prevent the said owner from recovering of and from such person with whom any such goods and merchandize or documents may have been pledged, or who shall have any such lien thereon as aforesaid, any balance or sum of money remaining in his hands as the produce of the sale of such goods and merchandize after deducting the amount of the lien of such person under such contract or agreement as aforesaid: Provided always, that in case of the bankruptcy of any such agent, the owner of the goods and merchandize which shall have been so redeemed by such owner as aforesaid shall, in respect of the sum paid by him on account of such Agent for such redemption, be held to have paid such sum for the use of such agent before his bankruptcy, or in case the goods and merchandize shall not be so redeemed, the owner shall be deemed a creditor of such agent for the value of the goods so pledged at the time of the pledge, and shall if he shall think fit, be entitled in either of such cases to prove for or set off the sum so paid or the value of such goods and merchandize, as the case may be.

IX. And be it enacted, That in construing this Act, the word "person" shall be taken to designate a body corporate or company as well as an individual; and that words in the singular number shall, when necessary to give effect to the intention of the said Act, import also the plural, and vice versa; and words used in the masculine gender shall, when required, be taken to apply to a female as well as a male; and that the words "goods and merchandize" shall be taken to include all personal property of whatever nature or kind soever, and the word "shipped" shall be taken to mean the carriage of goods, whether by land or by water.

X. Provided always, and be it enacted, That nothing herein contained shall be tend to things construed to give validity to, or in any wise to affect any contract, agreement, lien, pledge, (guge) or other act, matter or thing made or done before the passing of this Act; Provided also, that nothing in this Act contained shall be held to destroy or diminish any other right recourse or remdy not contrary or repugnant to this Act with this Act. Which might be enforced according to the Laws of Upper or Lower Canada.

Nor to affect

any right not inconsistent

MONTREAL :-Printed by STEWART DERBISHIRE & GEORGE Desbarats,
Law Printer to the Queen's Most Excellent Majesty.

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An Act to repeal a certain Act therein mentioned, and to make better provision for the Limitation of Actions in Lower Canada.

WHE

[ 28th July, 1847. ]

English Act.

21st James I

cap. 16, cited.

cited.

HEREAS by an Act passed in England in the twenty-first year of the Reign of Preamble. King James the First, and intituled, An Act for Limitation of Actions, and for avoiding of Suits in Law, it is among other things enacted, that all actions of account and upon the case, other than such accounts as concern the trade of merchandize between merchant and merchant, their factors or servants, and all actions of debt grounded upon any lending or contract without specialty, shall be commenced and sued within six years next after the cause of such actions or suits and not after: And whereas, under the law of Lower Canada, whereby it is provided that in proof of all Doubts refacts concerning commercial matters, recourse shall be had in all Courts of Civil Jurisdiction to the rules of evidence laid down by the Laws of England, doubts have arisen whether the enactment above cited is applicable in Lower Canada as a rule of evidence, and if it be so applicable what acknowledgment or promise within the said period of six years is sufficient to take out of the operation of the said enactment any case which would otherwise be within the same; for the removal of such doubts, Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and of the Legislative Assembly of the Province of Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of the United Kingdom of Great Britain and Ireland, and intituled, An Act to re-unite the Provinces of Upper and Lower Comada, and for the Government of Canada, and it is hereby enacted by the authority of the same, That no action of account or upon the case, nor any action grounded upon any lending or contract without specialty, shall be maintainable in or with regard to any commercial matter, unless such action be commenced within six years next after the cause of such action; any law, custom or usage to the contrary notwithstanding.

II. And be it enacted, That 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 next preceding section, 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; and that where there shall 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

No actions of account, &c.

in commercial cases main

tainable unless

commenced within six years after cause of ac

tion.

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contractors,

&c.

Proviso as

to effect of payment. Proviso: in case of joint contractors, &c. plaintiff

Case of joint the said section 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 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 against others. may be given and costs allowed for the plaintiff, as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff.

may recover

as against

some, though

he may fail as

Provision

when defend

ant shall plead that others ought to be

sued with him,

who are not liable under this Act.

No indorsement of pay

III. And be it enacted, That if any defendant or defendants, in any action on any simple contract in or with regard to any commercial matter, shall plead any matter in abatement, to the effect that any other person or persons ought to be jointly sued, and issue be joined on such plea, and it shall appear at the trial or otherwise, that the action could not by reason of this Act be maintained against the other person or persons named in such plea or any of them, the issue joined on such plea shall be found against the party pleading the same.

IV. And be it enacted, That no indorsement or memorandum of any payment written ment on a pro- or made upon any promissory note, bill of exchange or other writing, by or on behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment so as to take the case out of the operation of this Act.

missory note,

&c. by the par

ty to whom such payment is made shall take the case

out of this Act. This Act to

apply to debts pleaded by way of set-off. No action to be maintained against a person for a promise made to

V. And be it enacted, That this Act shall apply to the case of any debt of a commercial nature, alleged by way of set-off on the part of any defendant, either by plea, notice, or otherwise.

VI. And be it enacted, That in or with regard to any commercial matter, no action shall be maintained whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon ratification after full age a debt con- of any promise or contract in any such matter made during infancy, unless such promise or ratification shall be made by some writing signed by the party to be charged

pay
tracted while a

minor, unless

such promise be in writing.

Cases of guarantee in which a written memorandum

shall be neces

sary.

Recital.

English Statute 29th Carol. II., c.

3, cited.

therewith.

VII. And be it enacted, That in or with regard to any commercial matter, no action shall be maintainable whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade or 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.

VIII. And whereas it hath been doubted whether the enactments of the Act passed in England in the twenty-ninth year of the Reign of King Charles the Second, and intituled, An Act for prevention of Frauds and Perjuries, do extend in Lower Canada to certain executory contracts for the sale of goods which nevertheless are within the mischief intended to be remedied by the said Act, and it is expedient to extend the

same

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