An Act to amend the Laws of England and Ireland affecting Trade and Commerce.
[29th July 1856]
WHEREAS Inconvenience is felt by Persons engaged in Trade by reason of the Laws of England and Ireland being in some Particulars different from those of Scotland in Matters of common Occurrence in the course of such Trade, and with a view to remedy such Inconvenience it is expedient to amend the Laws of England and Ireland as herein-after is mentioned :
Be it enacted by the Queen's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, as follows :
No Writ of Fieri facias or other Writ of Execution, and no Writ of Attachment against the Goods of a Debtor, shall prejudice the Title to such Goods acquired by any Person bonâ fide and for a valuable Consideration before the actual Seizure or Attachment thereof by virtue of such Writ; provided such Person had not, at the Time when he acquired such Title, Notice that such Writ, or any other Writ by virtue of which the Goods of such Owner might be seized or attached, had been delivered to and remained unexecuted in the Hands of the Sheriff, Under Sheriff, or Coroner.
In all Actions and Suits in any of the Superior Courts of Common Law at Westminster or Dublin, or in any Court of Record in England, Wales, or Ireland, for Breach of Contract to deliver specific Goods for a Price in Money, on the Application of the Plaintiff, and by Leave of the Judge before whom the Cause is tried, the Jury shall, if they find the Plaintiff entitled to recover, find by their Verdict what are the Goods in respect of the Non-delivery of which the Plaintiff is entitled to recover and which remain undelivered; what (if any) is the Sum the Plaintiff would have been liable to pay for the Delivery thereof; what Damages (if any) the Plaintiff would have sustained if the Goods should be delivered under Execution, as herein-after mentioned, and what Damages if not so delivered; and thereupon, if Judgment shall be given for the Plaintiff, the Court or any Judge thereof, at their or his Discretion, on the Application of the Plaintiff, shall have Power to order Execution to issue for the Delivery, on Payment of such Sum (if any) as shall have been found to be payable by the Plaintiff as aforesaid, of the said Goods, without giving the Defendant the Option of retaining the same upon paying the Damages assessed; and such Writ of Execution may be for the Delivery of such Goods; and if such Goods so ordered to be delivered, or any Part thereof, cannot be found, and unless the Court, or such Judge or Baron as aforesaid, shall otherwise order, the Sheriff, or other Officer of such Court of Record, shall distrain the Defendant by all his Lands and Chattels in the said Sheriff's Bailiwick, or within the Jurisdiction of such other Court of Record, till the Defendant deliver such Goods, or, at the Option of the Plaintiff, cause to be made of the Defendant's Goods the assessed Value or Damages, or a due Proportion thereof; provided that the Plaintiff shall, either by the same or a separate Writ of Execution, be entitled to have made of the Defendant's Goods the Damages, Costs, and Interest in such Action or Suit.
No special Promise to be made by any Person after the passing of this Act to answer for the Debt, Default, or Miscarriage of another Person, being in Writing, and signed by the Party to be charged therewith or some other Person by him thereunto lawfully authorized, shall be deemed invalid to support an Action, Suit, or other 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.
No Promise to answer for the Debt, Default, or Miscarriage of another made to a Firm consisting of Two or more Persons, or to a single Person trading under the Name of a Firm, and no Promise to answer for the Debt, Default, or Miscarriage of a Firm consisting of Two or more 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 a Firm, unless the Intention of the Parties, that such Promise shall continue to be binding notwithstanding such Change, shall appear either by express Stipulation or by necessary Implication from the Nature of the Firm or otherwise.
Every Person who, being Surety for the Debt or Duty of another, or being liable with another for any Debt or Duty, shall pay such Debt or perform such Duty, shall be entitled to have assigned to him, or to a Trustee for him, every Judgment, Specialty, or other Security which shall be held by the Creditor in respect of such Debt or Duty, whether such Judgment, Specialty, or other Security shall or shall not be deemed at Law to have been satisfied by the Payment of the Debt or Performance of the Duty, and such Person shall be entitled to stand in the Place of 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: Provided always, 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 Person shall be justly liable.
No Acceptance of any Bill of Exchange, whether Inland or Foreign, made after the Thirty-first Day of December One thousand eight hundred and fifty-six, shall be sufficient to bind or charge any Person, unless the same be in Writing on such Bill, or, if there be more than One Part of such Bill, on One of the said Parts, and signed by the Acceptor or some Person duly authorized by him.
Every Bill of Exchange or Promissory Note drawn or made in any Part of the United Kingdom of Great Britain and Ireland, the Islands of Man, Guernsey, Jersey, Alderney, and Sark, and the Islands adjacent to any of them, being Part of the Dominions of Her Majesty, and made payable in or drawn upon any Person resident in any Part of the said United Kingdom or Islands, shall be deemed to be an Inland Bill; but nothing herein contained shall alter or affect the Stamp Duty, if any, which, but for this Enactment, would be payable in respect of any such Bill or Note.
In relation to the Rights and Remedies of Persons having Claims for Repairs done to, or Supplies furnished to or for, Ships, every Port within the United Kingdom of Great Britain and Ireland, the Islands of Man, Guernsey, Jersey, Alderney, and Sark, and the Islands adjacent to any of them, being Part of the Dominions of Her Majesty, shall be deemed a Home Port.
All Actions of Account or for not accounting, and Suits for such Accounts, as concern the Trade of Merchandise between Merchant and Merchant, their Factors or Servants, shall be commenced and sued within Six Years after the Cause of such Actions or Suits, or when such Cause has already arisen then within Six Years after the passing of this Act; and no Claim in respect of a Matter which arose more than Six Years before the Commencement of such Action or Suit shall be enforceable by Action or Suit by reason only of some other Matter of Claim comprised in the same Account having arisen within Six Years next before the Commencement of such Action or Suit.
No Person or Persons who shall be entitled to any Action or Suit with respect to which the Period of Limitation within which the same shall be brought is fixed by the Act of the Twenty-first Year of the Reign of King James the First, Chapter Sixteen, Section Three, or by the Act of the Fourth Year of the Reign of Queen Anne, Chapter Sixteen, Section Seventeen, or by the Act of the Fifty-third Year of the Reign of King George the Third, Chapter One hundred and twenty-seven, Section Five, or by the Acts of the Third and Fourth Years of the Reign of King William the Fourth, Chapter Twenty-seven, Sections Forty, Forty-one, and Forty-two, and Chapter Forty-two, Section Three, or by the Act of the Sixteenth and Seventeenth Years of the Reign of Her present Majesty, Chapter One hundred and thirteen, Section Twenty, shall be entitled to any Time within which to commence and sue such Action or Suit beyond the Period so fixed for the same by the Enactments aforesaid, by reason only of such Person, or some One or more of such Persons, being at the Time of such Cause of Action or Suit accrued beyond the Seas, or in the Cases in which by virtue of any of the aforesaid Enactments Imprisonment is now a Disability, by reason of such Person or some One or more of such Persons being imprisoned at the Time of such Cause of Action or Suit accrued.
Where such Cause of Action or Suit with respect to which the Period of Limitation is fixed by the Enactments aforesaid or any of them lies against Two or more Joint Debtors, the Person or Persons who shall be entitled to the same shall not be entitled to any Time within which to commence and sue any such Action or Suit against any One or more of such Joint Debtors who shall not be beyond the Seas at the Time such Cause of Action or Suit accrued, by reason only that some other One or more of such Joint Debtors was or were at the Time such Cause of Action accrued beyond the Seas, and such Person or Persons so entitled as aforesaid shall not be barred from commencing and suing any Action or Suit against the Joint Debtor or Joint Debtors who was or were beyond Seas at the Time the Cause of Action or Suit accrued after his or their Return from beyond Seas, by reason only that Judgment was already recovered against any One or more of such Joint Debtors who was not or were not beyond Seas at the Time aforesaid.
No Part of the United Kingdom of Great Britain and Ireland, nor the Islands of Man, Guernsey, Jersey, Alderney, and Sark, nor any Islands adjacent to any of them, being Part of the Dominions of Her Majesty, shall be deemed to be beyond Seas within the Meaning of the Act of the Fourth and Fifth Years of the Reign of Queen Anne, Chapter Sixteen, or of this Act.
In reference to the Provisions of the Acts of the Ninth Year of the Reign of King George the Fourth, Chapter Fourteen, Sections One and Eight, and the Sixteenth and Seventeenth Years of the Reign of Her present Majesty, Chapter One hundred and thirteen, Sections Twenty-four and Twenty-seven, an Acknowledgment or Promise made or contained by or in a Writing signed by an Agent of the Party chargeable thereby, duly authorized to make such Acknowledgment or Promise, shall have the same Effect as if such Writing had been signed by such Party himself.
In reference to the Provisions of the Acts of the Twenty-first Year of the Reign of King James the First, Chapter Sixteen, Section Three, and of the Act of the Third and Fourth Years of the Reign of King William the Fourth, Chapter Forty-two, Section Three, and of the Act of the Sixteenth and Seventeenth Years of the Reign of Her present Majesty, Chapter One hundred and thirteen, Section Twenty, when there shall be Two or more Co-Contractors or Co-Debtors, whether bound or liable jointly only or jointly and severally, or Executors or Administrators of any Contractor, no such Co-Contractor or Co-Debtor, Executor, or Administrator shall lose the Benefit of the said Enactments or any of them, so as to be chargeable in respect or by reason only of Payment of any Principal, Interest, or other Money, by any other or others of such Co-Contractors or Co-Debtors, Executors, or Administrators.
In order to enable the Superior Courts of Common Law at Westminster and Dublin, and the Judges thereof respectively, to make Rules and Regulations, and to frame Writs and Proceedings, for the Purpose of giving effect to this Act, the Two hundred and twenty-third and Two hundred and twenty-fourth Sections of "The Common Law Procedure Act, 1852," shall, so far as this Act is to take effect in England, and the Two hundred and thirty-third and Two hundred and fortieth Sections of " The Common Law Procedure Amendment Act (Ireland), 1853," shall, so far as this Act is to take effect in Ireland, be incorporated with this Act, as if those Provisions had been severally herein repeated and made to apply to this Act.
In citing this Act it shall be sufficient to use the Expression " The Mercantile Law Amendment Act, 1856. "
Nothing in this Act shall extend to Scotland.