Mercantile Law Amendment Act 1861 (SA)

ANWO VICESIMO QUAKY0 ET VICESlbIB QUINTO f

VICTO

No* 3.

At4 Act to m e n d the L n m ~ J e c t i r y T h d e and Cunzmerce.

[Assented to, Nth August, 1861.1

TIEREAS it is espcdicnt to a n m d the Tmvs of the Province

of South Austmlia elating to trade and comnierce-Be it

therefore khteted, by the Governor-itL'11ief of t l~e Trovince of South Australia, the advice and coilsent of the Leg$lativc Council and House of Assembly of the said Province, ~n this present p;lrliimlent assembled, ns hdlows :-

1. This Act may be cited as " Tlle Mercantile Law Amendment Short title of ~ c t,

I Act, 1861."

o pronlise to be made by any person after this Act hall take Cmsideration !

answer for the debt, default, or C iscarriage of another aywiting,

in writing, and signed by the party to be charged

a written docbrnent.

sonic other uerson by him th&eunto lawfullv p*

authorized, shall be deemed :nvalid td-support an mtion, suit, & other proceeding, to clmrgc the person by whom such promise shall

haye been made, by mason only that the consideration for such

promise does not appear in writing, or by necessary inference from

name of the credikor any or

in action other proceeding at law or in the advances made and loss sustained, by the person who shall have

equity, in order to obtain from the principal debtor, or any CO-surety,

so paid such debt, or performed such duty, and such payment or

performa~ice so made by such surety, shall not be pleadable in bar

of any such action or other proceeding by him: Provided that no

CO-surety, CO-contractor, or CO-debtor, shall be entitled to recover from any other CO-surety, GO-contrac tor, or CO-debtor, by means afore- said more than the just proportion to which, as between those parties themselves, either of such last-mentioned persons shall be justly liable.

Aew*~eofabill

inland or foreign to be 4. NO acceptance of any bill f exchange, whether inland or

in htiw on	it,	foreign, made after the thirty-firs day of December, one tllousand eight hundred and sixty-one, shall be sufficient to bind or charge any person, unless the same be in riting on such bill; or, if there be more than one part of such hi1, on onc of the said parts, and
signed by the acceptor, or some pe son duly authorized by him. i

whnta~etob~aecmra 5. Every bill of exchange, or nlissory note, drawn or made in

inh%nd bus.

any part of the Province	Australin, or it5 dependencies,
and made payable. in, or	on any person resident in any

part of the said Province,	shall be deemed to be
an inland bill.

6. Any agent who shall hereafter be entrusted with the posses-

sion of goods, or of the documents of titk to goods, shall be deemed

and taken to be the owner of such goodsanduncuments, so -

to give validity to any contract or agreemea t, by way of pledge, lien, or security, bond $cZe made by any person with such agent so en- trusted ss aforesaid, as well for any original loan, advance, or pay- ment made upon the security of snch goods or documents, as also

for any further or continuing advance in respect thereof; and such

contract or agreement shall bc binding upon an winst the owner

standing the person claiming such pledge or lien maj have had	of such goods, and all other persons intereste h t erein, notwith-	notice that the person with whom such contract or agreement is
made is only an agent.

i n 7. Where any such contract or agreement for pledge, lien, or

security, shall be made in consideration of the delivery or transfer to such agent of any other goads, or merchandize, or document of title, or negotiable security, upon which the person so delivering up the same had a t the time a valid and available lien and security, for or in respect'of a previous advance, by virtue of some contract or agreeuwut, mndc with such agent, such contract and agreement, if bo tu i jde on the part of the person with whom the same may be made, shall be deemed to be n contract, made in consideration of an advance, within'th;;ine intent and meaning of this Act, and shall be as valid and effectual, to all inteuts and' purposes, and to the m e extent as if the consideration for the same had been a bond j d e

M lien be~0.d present advance of money: Provided that the lien acquired under

the value of the gadds

such

-such last-mentioned contract or agreement upon the goods or docu- ments deposited in exchange shall not exceed tbc 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 aud exchanged.

8. This Act, and every matter and thing hereilr contained, shall This A C ~ to ba

construed to protect

be deen~ed +- ---- and construed to give validity to such contracts and ,,,mBQcti,,,

agreements only, and to protect only such loans, advances, and & o n ~ @ without notico that the agent

exchanges, as &all be made bond $de, and without notice that fledgingi8 ,li,

the agent making such contracts or agreements as aforekd has w i t h o ~ t a ~ t h o r i ~, or 9naZajW against

not authority to make the wme, or is acting mala rfide i r ~ respect th C owner, 5 and 6

thereof, against the owner of such goods and merchandke; and Vict. c. 391	3.
nothing hGrein contained shall be conitrued to extend to or protect any lien or pledge for or in respect of any antecedent debt owing from any agent to any person with or to- whom -&cl1 lien or
aforesaid, in deviating from any express orders or authority received	pledge shall b given; nor to authorize any agent, entrusted as &"
from the owner; but that, for the purpose and to the iutent of pro- tectirrg all such boni i jde loqn~, advances, and exchanges, as afore- said (though made with notice of such agent not being the owner, but witjhout any notice of the agents acting without authority), and. to no further or other intent ~ r - ~ u r ~ o s e such coiltract or agreement as aforesaid shall be binding on the owner, and all other persons interested in such goods.

9. Any bill of lading, dock warrant, warrehouse-keeper% certi-

f l o a ~ t e, warrant or order for the delivery of goods, or any

f i ra7g-document used in the ordinary course of business as the possession or control of goods, or authorizing or purporting&+ c .L

&'j*

to authorize, either by endorsement or by delivery, the possessor

of such document to transfer or receive goods tlwrcby repre-

sented, shall be deemed and taken to be a "document of tit]&'-

within the iueaning=is Act; and any agent entrusted as afore- And a p t em-

said, and possessed of auy such document of title, whether derived immediately from the owner of such goods or obtained by reason

of such agents having been entrusted with the possession of the	goods, or of any other document of title thereto, shall be deemed
and takcn to h a v e K n entrusted with the possession of	the-

represented by such doc~uuer& of title as nforcsnid! and all contracts pledging or giving a lien upon such document of title as aforesaid shall be deemed and taken to be respectively pledges of and liens

upon the* to which the same relatcs2 and such agent-shell- b k -

deemed to be pos s d of such dbeuments, w%6TfGF%c same shall ~ n a whn in ~OBBBL~-

be in his actua r;""i custodv or sh dP 1 be held by any other person sub-

ject to his control, or fbr him, or ov his bebalf, 'and wh& any loan or advance shall be bondfide made to any agent entrusted with and

in possession of any such goods or documents of title as aforesaid,

on the faith of any contract or agreement *in writing, to consign, deposit, transfer, or deliver such goods or documents of title as aforesaid, and such goods or documents of title ahall actually be received by the person making sue11 loan or advance, without notice *bat such agent was not authorized to make such pledge or seculiiy

every such Iom or advance shdl be deemc'ct and taken to be a loau

or advance on the security of mch- or doeurnents of title within the nleaniiig of this Act, though such goods or documents of title s ld l not actually be received by the person m&ing such loan

"GontrncL or a p e -

ment," and " ad-	or advancc till tllc period sul>scyuent thereto, m d any contract or
v8nG-e."	agreeruent, wltether nmde direct with s~rcll agent, as aforesaid, or with m y clerk or other person 011 his bc13df, shall bc jjeeincd a contract or agreement with mch agent, and m y payment made, wbcstlier by money or bills of exchange, or other negotiable security,
P o d o n evidence	shall be decrlled and taken to be an advance within the meaning of
of entrusting.	this A A ~ agelit iu posst~~sion, R as aforesaid, of such goods or documents shall he'talcen, tbr the purposes of this Act, to bwo been entrustcc1 tl~ercwitl~ by t l~e owrler thereof, urdcss the contrary can
be shown in evidence.

10. NotLEnq hen$ n cont~ir~eil s l d 1 prcven t such owner as afore-

said, from h&ng the right to redeem such goods or documents of title pledged as aforesaid, a t any time before such goods shall have been sold, upon repayment of the amount of the lien thereon, or restora,tion of the securities in respect of which such l im may exist, and upou 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 Inw be entitled to rcttzin the same goods or documents, or any uf thcm, b-c. wity of liw as :tgainst such owner, or to prevent the snid owne~~' from rccovering o f i nd fionl such person with whom avly such goods or documents may h:we hecn pleclged, or who shall

Or to recover Gulancc have n:w s w t l lien tl~ereon as aforesaid. any balance or sum of

-money Amaiuing in his llands as the prbduEe of the sale of such goods, after deducting the amount of tlze lien of' such person under such coatract or agreement as afores~id.

11. 111 case of the i~lsolvel~cy of auy such agent, tbe owner of

the goods which shall have been so redeemed by such owner as aforesaid, shall, in respect of the sum paid by him on account

redeemed.	of such agent for such redemption, be held to have paid such
sum for the use of such agent before his insolvency, or in case e goods shall not be so redeemed, the owner shall be deemed a
creditor for the value of the goods so pledged at the tirn-e

dge,Gd shall, if be shd l think fit, be entitled, in either of such

ses, to prove for or set,off the sum so paid, or the value of such

goods, as the case may be.

h m e n o e m e a t of

&CL 12. This A& shall take effect from the first day of January, 1862.

In the name and on behalf of the Queen I hereby assent to

this Act.

RICHARI) GRAVES MACDONNELL,

Governor.

Government House, Adelaide,

30th August, 1861.

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