MERCANTILE LAW AMENDMENT ORDINANCE

MERCANTILE LAW AMENDMENT ORDINANCE

ORDINANCE No. 1.3 of 1864.

lllercantile Law Aiuendntent.

I I. No. 13 of 1864.

?fin Ordinance to an lend the Laws of Trade and Cotninerce. rtrre.
[13th September, IS(i4.]
WHEREAS it is expedient that, the matters embraced by Ordinance r,,ambie.
No. 3 of 1857 should be provided for by separate and distinct
Ordinances: Be it enacted by His Excellency the Governor of Hong-
l:ona, with the advice of the Lenislative Council thereof, as foilowa:--

1. So much of Ordinance No. 3 of 1857 as relates to 'The Mercantile
Law Amendment Act, 1856' (hrnperial) shall be and the same is hereby
repealed, except as to anything clone before, or anv proceeding pending
at, the time of the passing of tlus Ordinance.

2. No writ of fieri facias or other writ of t:xectition, and no writ
of attachment against the goods of tt, debtor, shall prejudice the title
to
,such goods acquired by any person bon4 f de and for a valuable considera-
tion before the actual seizure or attachment thereof by virtue of such
writ,
provided such person had not at the time when lie acquired slrch 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 unexccuted in tire hands of the sheriff.

3, In all actions and suits in either Court of Record in this Colony
.for breach of contract to deliver specific hoods 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 or (if the case lie tried without a jury,) the
Judge
shall, if they or he find the plaintiff entitled to recover, find by
their verdict
.or his decision, as the case may be,, what are the goods in respect of
the
non-delivery of which the plaintiff is entitled to recover arid which
remain,
undelivered; what (if any) is the sum the plaintiff would have been liable
to pay for t);e delivery thereof; what damages (if any), the plaintiff
would
have sustained if the goodse delivered- under execution, as
hereinafter mentioned, arid what damages, if not so delivered; and there-

''upon -f judgment shall Vb'lien for the plaintiff, the Court at its
discre-
tion, on the application of'the'lolaintiff shall have flower to order
elocu-
tion 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 tire defendant the option of retaining t1iA: 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

Port uF liri-

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i'ro,,,eriott to

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ory of goods,
1'<>r guarantee
ituca not

a,,hwar uy

S1'I'irltl'.

(~ita.till~hec to

cio fir a firm
to ccelso upon.
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,ORDINANCE No. 13 of 1864.

Mercantile Law Amendment.

any part thereof cannot be: found, and unless the Court shall otherwise
order, the sheriff or other officer of such Court of Record shall distrain
the defendant by all his lands <zn d chattels in the Colony, till tile
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 :z
separate
writ of execution, be entitled to have made of the defendant's goods the
damages, costs, and interest in such action or suit.
4. No special promise to be made by any person, after the passing
of this Ordinance 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, snit, or other proceeding to charge
the person by `vhorn 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. .
6. No promise to answer for the debt, default, or miscarriage of
a,iiother made to a firm consisting of two or more persons, or to a sinnle
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
bi.riding 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 tile persons constituting the firm, or in the person trading under
the name of a firm, unless tile intention of the parties, that such
promise
shall continue to be binding notwithstandinin such change, shall appear
;dither by express stipulation or by necessary implication from the nature

of the firm or otherwise.

a. 'ilrer3 who 6. Every person who,. being surety for the debt or duty of
another,
cli'Olayges
the liability or beinb liable with another for arty debt car duty, shall
pay such debt or

to be entitled

r:> ii,~,sigul>zGt perform such duty, shall'be entitled to have assibned
to him, pr to .a~'~..

of x,11 seen- '' T

riria, held by trustee for him, every judgment, specialty,. orNNher
security whiclt^ shall'

t6c creditor.

be held by the creditor in respect of such r de& 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 th~._
duty, and sn ch person shall be entitled to stand in the place of the -
cred-
itor, and to use all the rerrledies, and, if need be, and upon a proper,
in-
delnnity; to Case'the nine of the creditor, in any action or outer
proceed-
Oh.DINA\`CEo. 13 of 1864.

Mercantile Law.Aviendviepil.

lIlg, at Law or in Eqnity, in order to obtain from the principal debtor,
,or
any co-surety, co-contractor, or co-debtor, as the case may be,
indernnifi-
cat.ion 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, eo-contractor, or co-debtor, by the means aforesaid,
inore~
than, the just proportion to which, as between those parties themselves,
such last mentioned person shall be justly liable.

7. No acceptance of any bill of exchange, whether inland or foreign,
xnade after
the 14th day of February 1857, 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 hint.
Repealed by Ordinance No. 9 of 1885.
$. 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; 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
oaly
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, .

g. 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 21 Jac. 1. c. 16. s. 3, or by the Act 4
Anne, c. 16. s. 17, or by the Act 53 Geo. 3. c. 127. s. 5, or by the Act
3,
and 4 Will. 4. c. 27. ss. 40, 41, and 42, and c. 42. s. 3, or by the Act
16
and 17 Vict. c. 113. s. 20, 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
on~: or-more of such perso,~s_,''Qeing at the time of such cause of
action or
^suit accrued absent from the C-olony, 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 impris-

oned at the time of such cause of action or suit accrued.

10. Where such cause of action or suit with respect to which the Period or
limitation to-
period of limitation is fixed by the enactments aforesaid or any, of them
run as to

Acceptance (if
any bill of ex-
change EJ be 111^

Writing.

Limitation or-

actions for
°~ 111crl;banta
Accounts.'

ALyoucc or -
imprisonment
of a creditor
not to be a
diso,bffity.
joint debtors
in Colony
though some

.Xtu 1e~ U, iL' io..
gciTatione May
be xle.~hcl
-writs any
ht'OGeecling8 -
faani%r fol
the Purposes
6f this Gi

ORDINANC_E No. 13 OF 1864.

Mercantile Law Amendment.

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 absent from the Colony at the time
such cause of action or suit accrued, by reason only -that some other one
oz' more of such joint debtors was or were at the time such cause of
action
accrued so absent, and such person' or persons so entitled as aforesaid
shall not be barren from commencing and Suing any action or suit against
the joint debtor or joint debtors who was or were`so absent at the time
the
xcaltse of action or suit accrued after his or their return to this
Colony, by
reason only that judgment was already recovered against any one or more
of such joint debtors who was not or were not absent at the time
aforesaid.

' ll. In reference to the provisions o£ the Imperial Acts 9 Geo. 4.° c.
14: ss. 1. and 8, and the 16 and 17 Vict. c. 113, s. 24, an acknowledg-
ment or promise made or contained by or in a writing signed by an agent
of the party chargeable thereby, duly authorized to make such acknow-
ledgment or promise, shall have the same effect as if such writing, had
been signed by such party himself.

12. In, reference to the provisions of the Imperial Acts 21 Jac. l.,c.
16. s. 3, slid of the Act 3 and 4 Will. 4. c. 42. s. 3, and of the Act 16
&
17 Viet. c. 113. s. 20, 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 of
co-debtor, executor, of 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
dr others of such co-contractors or co-debtors, executors. or
administrators.

` ,_ .13, it shall be lawful for .the Chief Justice to make roles arid r69
u-
Ia,,tio>us, and to frame writs and proceedings for the purpose of giving
lng effect
P
to this Ordinance, and from time to time to amend such rules., orders and
forms, aid such rules, orders or forms, oh ,,atnded rules, order, In~cl
forms shall be submitted to the Leriislatire C?unciI, why may allow,
disallow, or alter the same, and the rules, orders. and forms so allowed
`or
altered, shall be of the same force and effect as-if they had been
specially

inserted helle~n.

14. In citing this Ordinance it shall lie sufficient to use the expres-
sion 'Tl1e Mercantile Law Amendment Ordinance 1864.'
Title.
Preamble.
Part of Ordinance no. 3 of 1857 repealed.
Protection to persons acquiring title to goods before seizure, &c. under writ against seller.
Specific delivery of goods.
Consideration for guarantee need not appear by writing.
Guarantee to or for a firm to cease upon a change in the firm except in special cases.
A surety who discharges the liability to be entitled to assignment of all securites held by the creditor.
Acceptance of any bill of exchange to be in writting.
Limitatin of actions for 'Merchants Accounts.'
Absence of imprisonment of a creditor not to be a disability.
Period of limitation to run as to joint debtors in Colony though some absent.
Imperial Acts extended to acknowledgments by agnets.
Part payment by one contractor, &c., not to prevent bar by certain Statutes of Liminations in favor of another contractor.
Rules and regulations may be made amd writs and proceedings framed for the purposes of this Ordinance.
Short title.

Title.
Preamble.
Part of Ordinance no. 3 of 1857 repealed.
Protection to persons acquiring title to goods before seizure, &c. under writ against seller.
Specific delivery of goods.
Consideration for guarantee need not appear by writing.
Guarantee to or for a firm to cease upon a change in the firm except in special cases.
A surety who discharges the liability to be entitled to assignment of all securites held by the creditor.
Acceptance of any bill of exchange to be in writting.
Limitatin of actions for 'Merchants Accounts.'
Absence of imprisonment of a creditor not to be a disability.
Period of limitation to run as to joint debtors in Colony though some absent.
Imperial Acts extended to acknowledgments by agnets.
Part payment by one contractor, &c., not to prevent bar by certain Statutes of Liminations in favor of another contractor.
Rules and regulations may be made amd writs and proceedings framed for the purposes of this Ordinance.
Short title.

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1890

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No. 13 of 1864

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