i909.

'i'IlE PARLIAMENT OF THE COMMONWEALTH.

HOUSE OF REPRESENTATIVES.
BILLS OF EXCHANGE BILL.
:iY1E'lOHANDUM ON THE BILL.
(Circulated by the Hon. P. llf. Glynn, Attorney- Genel',d.)
The Bill is founded on the Bills '!f Exchange Act 1882 of the United
Kingdom, and the Bills of Exchange Acts of the several i'tates.
All the State Acts in substance follow the Act of the United Kingdom;.
in fact the)' are practically adaptations of the latter Act with certain modifica-
tions, to ,Yhich reference is made later 011. .
The draft of the Act of the United Kingdom was prepared hy Sir M. D.
Chalmers, K.C.B., C.S.I., who is an eminent anthority on the law relating to
Bills of Exchange and also on the subject of codification. The Act was intended
fo codify the law on the snbject of Bills of Exchange, Promissory Notes, and
Oheques, as existing at the tillIe.
The Act of the Unite(1 Kingdom may be considered as an example of
snccessfnl codification. A slight amendment was recently made by Act 6 Edw. 7,.
c.17. This amendment is the onlv amendment which was made in the United
Kingdom. ~
The State Acts arc as follow:-
New South vVales :
The Bm" if Exchangc Act 1887, No.2.
Victoria:
The Inst"uments Act 1890, No. ] 103, Part L
The Instruments Act 1904, No. 1925.
Queensland:
The Bills of Exc1umge Act of 1884, No. 10.
The Bills '!f Exchange Act Amendment Act of 1905, No.7
South Anstralia :
The Bills of Exc1tange Act 1884, No. 312.
The Bills qf Excltan,qe Amendment Act 1904, No. 867.
vVcstern Anstralia:
The Bills if Exchange Act 1884, ~ o. 10.
The Bills '!f Exchange Act 1904, No. 54.
[C. 37]-200/30.7. 1909.-}'.9155.
2
Tasmania :
The Bills Qf E.7:chan.fJc Act '1884, No. 14.
The Bilts qf Exchange Act lQ05, No.7.
The Bills 0/ Exchange Amendment Act 1906, No. 29.
,
The Bill if passed into ],tW will take the place of all these Acts, and
there will then be iu Australia oue' unifol'ul 'bw in place of twelve distinct
lam. .
The State Acts relating to bank holiclttys contain cel't"iil provisions as
to the effect of bank holidays and b"nk Imlf-holidays in relation to hills, &c.
Provisions to effect 'the same object Imve been included in the BiIl-(see
clause 98, snb-clanses (2), (4), and (5).
The extent to which the clames in the Bill differ from the English Act
and the State Acts is shown in the following notes on the various clanses :-
Glauses 1-3. Formal.
Clause 4. The definitions are in substance the S!lme as under the Stn.!e
. Acts except that Australasia' is made to include "a.ny Terrjtory
under the control of the Commonwealth."
Clause 5. In accord with English ancl State Acts.
Clauses 6-7. Preliminary clauses.
Clause 8. In accord with English and State Acts.
Clause 9: In accord with majority of State _'\cts, but the clanse is extended,
by virtne of the definition of " Australasia," so. as to make bills
drawn.in any territory under the control of the Comlllonwealth
"Inland Bills." In Tasmania only bills clrawn and. payable in
Tasmania are regarcled as Inland Bills. In all the other States
bills drawn ond pa,yab!e in Australia, Tasmania, New Zealand,
or Fiji, arc regarded as Inland Bills.
Clauses 10-24. In accord with English and State Acts.
Clanse 25. In accord with English Act, s. 20. There "re v"nous dif-
ferences in the State Acts:-
See N.S.W. s. 20.
Vic. s.21.
Qd. :s.21.
S.A. s.20.
W.A. s.21.
Tas. s.20.
The materi,,1 differences "re as follow:-The N.S.W. scction
contains a provision that" when the dra,ver of a bill sigilS it and
dies hefoi'e it 1mB been accepted the drawee m"l' still accept it; and'
when the acceptor: of " bill dieshefore the drawcr has signed it the
drawer m"y still complete it." The Qd. section contains a pro-
vision. t h ~ t ( ~ . w h e n a: simple. signature, onullstampecl paper or
l'''per stampcd with :tn adhesive stamp only, is delivered hy the
signer in order tHatit may he converted into a bill, it operates "s"
prim&-facie anthority to fill it up as a complete hill for any "mount
not exceeding the ,amount .eif aujr) written thereon as the maximum,
using the signature for that of the -draIver, 01' the acceptor, .01' an
indorser. "
3
Clauses 2iJ-4iJ. Iu aceord with English ancl State Acts.
C1anse 46. fn accord with English ancl State Acts, except that of Tasmania..
The .Tasmanian Act, section 41 sub-section (1), contains a proviso
to p,I1'>1. (J.) as follows :--" Provide,l that if the drawee has an
offico, presentment may be made by leaving the bill at snch office
for acceptance."
Clauses 47-59. In accord with English and State Acts.
C:Ianse 60. Iu aecord with English and State Acts, except that of New
Sonth Wales. The Ne1\' Sonth Wales Act, section 55, contains a
proviso to sub-scctiQn (2) para. (a) as follows:-" Provided that
where two or morc persons indorse as co-sul'eties
1
nothing ill
this shall disentitle anyone or more of them to con-
tribution from the other or others, but the rights' and liabilities.
inter se of such indorsers shall be snbject to the contract in
pursuance of whieh they became indorsers."
Clause 61. Iu accord with English and State Acts.
Clanse 62. In accord with English and. State Acts, exeept those or-
New South Wales and South Anstralia. The New South Wales
Act has, at the end of section 57, a paragraph as follows :-'
"Nothing in this section shall deprive any person of the right
to recover any unliquidated dam'J,ges to which he may be by law
entitled." The South Australiau Act, section 57, sub-section (1),
paragraph (0), contuins the words, "at the rate of ten. pounds
per centum per annum."
Chuses 63-64. In accord with English and State Acts.
Clause 65. Snb-dunse (I) is in accord with English and State Acts, ex-
cept that of New South Wales; sect,ion 60, which adds, "an.d such
indorsement slmll Le deemed to give as valid an authority'to the
banker to pay the bill as though it were genuine. and made with
dne authority."
Snb-clmlSe (2) is intended to protect a banker paying a bank
draft having a forged indorsement. Several State Acts have pro-
yisions intended to have the same effect. They arc as follow :-
Victoria-l 904, No. 1926, s. 2.
" For the purposes of section sixty-one of the Principal
Act a banker who carries on the bnsiness of banking at
more than one place shall be deemed to be II separate and
independent banker ut each of such places."
Queenshtnd"':1905; No.7, s. 2.
(Second paragraph).
" 'Vhere a bank on the buslpess of banking at more
places than one within Australasia, any order payable 011.
demand signed by or nnder the authority of the bank at one
of sneh places within Australasia" and addressed to itself at
another of such places within Australasia, shall, for the
pnrposes of this section be deemed to be a Bill payable to
order on demand signed by one person ancl addressed by
him to another person."
Sonth Anstmlia-1004, No. 867, s. 2.
This section is the same as s. 2 of the Victorian Act 1904,
1925.
'No. '7, R. 2.
This seetion is the SHllie as s. 2 of the Victorian Act] 904,
No. 1026.
Clanses 65-68. In accord with English and State Acts.
'Clanse 60. The Qneensland and ,Yes tel'll Australian Acts proyide that tlw
section shall uot affed Stamp Duties Acts. Otherwise the ehuse
is in accord with English and State Acts.
'C1anses 70-73. In accord with English and State Acts.
'Clause 74. In accord with English amI State Acts except the New Sonth
'Vales Act, section Of), which 11rovides in addition for sUlllmary
applications to the Supreme Court, and ill certain cases to a Dis-
trict Court, to compel the giving of:L duplicate.
Olauses 76-77. In accord with Ellglish and State Acts.
Olanse 78. In accord with ilud State ..:-'1.cts except the Xew South
,Vales Act, sadion -which defines a. cheqne as "A cheque is
a bill of' exchange drawn on n, banker payable on demand to or to
the order of a specified perSall or to bearer."
Clanse 79. Sub-chuse (1) is in accord with English and State Acts.
Sub-clause (2) is new. It was inserte,l by the Senate to proYi']e
for the case of "Stale cheqnes." See I-Iansard, 1907
1
PP' .'20;);)-
2060.
Clause 80. In accord with English and State Acts.
Clause 81. There is no clause in the English Act corresponding to this
clause.
Queensland and Tasmania have both passed somewhat similar clanses.
Queensland-lan5, Ko. 7, s. 2.-" '\There a 11ank in good faith
and withont negligence pays a bill or note drawn on or
made payable at the bank, and the bill or note has been so
drawn, accepted, or made by n, cnstOlller as to afford faeility
for any fraudnlent alteration in the amount thcreof, and the
bill or note has been so fraUdulently altered, the bank shall
not be responsible or incur any liability by reason of haying
paid the bill 01' note."
rrasmania-1906, No. 29, s. 2.-" "Thero a bank in good faith, alia
without neg-Jig'ence, pays a cheque dm'iVll on the bank by It
customer of the bank, and the cheque has been drawn by the
customer with gross negligence, and snch gross negligence
has affon!ed facility for any franclnlent alteration in the
amount thereof, and the cheque htts been so fraudulently
altered, the bank shan not be responsible or incnr any
liability by reason of haying paid the cheque.
The forep;oing portion of this section shall be printell On
or attache;! to the coyer of every cheque book issne,l by a
bank D,fter the passing of this Act."
5
[NoTE.-By section 3 of the Tasmanian Act (1906, No. 20) the above
section was declared to continue iu force until the 31st December, 1907, only.]
In connexion with this clause see the case of JlaJ'Shali v. The Colonial
Bank of Australasia, 1 C.L.R., 632, and on appeal to the Privy Council sull-nom.
(Jolonial Bt",k qf Australasia v. illct1'sltall [1906J A.C. 550.
Clanses 82-88. These danses relate to erossecl cheques, and are suhstan-
tially in accord with the ]Jng1ish nne) 8tate Acts, except that
the Qneensland Act in den.ling with crossed eheglles differs to the
extent that it provides for the crossing of cheques to individuals or
firms, and contains incidentld IJl'ovisiollS to give effect to that
crossing. See Queensland, 1884, No. 10, 77-82.
Clanse SIl. In accore) with English and State Acts. As regards inlanc)
and foreign notes compa.re snh-e1aut'1e (4) with clause O.
Clanses 90-Q7. In accord with English and State Ads.
Clause 98. In the English Act, and some of the State Acts, 01 day appointed
as ft. public fast or thanksgiving day is made n, non-business dn,y.
This provision is omitted from the Bill.
The chwse eontains two snh-ebllses (2) and (5) which a.re not in
the English or State Acts relating to Bills of Exchange, hnt pro-
visions having a similar effect arc contained in the Bank Holidays'
Acts of the States.
Clanse 90. In accord with English ami State Acts.
Clause 100. The words" and the serviees of a notary cannot be obtained at the
place where the bill is dishollOl'ed," which are to he fon]1() in. the
corresponding clauses of the English A.ct and the Stu,te Acts,
have been omitted. The words omitteel were in the Bill "s intro-
duced in the Senate, but wore omittel1. See ITaus(trd, 1007, pp.
7:S0-763, 2416-2418.
Clanse 101. In aecore) with English and State Acts.
Printed and Published fN the GOYERX),IEXT of the CmDlOxwEALTH of Aosn:.-\[.I:\ by J.
Government Printer for the State of Victoria.