This Committee began its sittings on the 19th of April, 1875, and took evidence during 21 days, and reported the evidence taken to the House, but made no report on the evidence taken, and recommended its reappointment this session.

The primary object of the Committee was to ascertain the legality or the contrary of the establishment of the Scotch branches in London. It examined Mr. Fitzjames Stephen, Q.C., and Sir Henry Thring, C.B., Parliamentary draughtsman to the Government, personally, as to the state of the Law: and besides that they had the written opinions of Sir James Scarlett (Lord Abinger), Sir Edward Sugden (Lord St. Leonards), Mr. Richards, and Mr. Roundell Palmer (Lord Selborne).

We shall commence by stating the opinions of these several Counsel on the point.

Mr. Stephen gave it as his opinion, among other points, that "No joint stock bank which issues notes anywhere, except the joint stock banks in England and more than 65 miles from London, may carry on business in any part of England."

He considered that all "foreign banks whatever, including under the name 'foreign' not only continental banks, but British banks out of England, that is, Scotch, Irish, and colonial banks, are forbidden by the various Acts of Parliament to establish themselves in any part of England.” (Q. 206.)

He denied that the Bank of Amsterdam, for instance, could open a branch in London. (Q. 207.)

Mr. Stephen admitted that he had never turned his attention to the subject before, and that he had merely been instructed to look at the matter on behalf of the English bankers some two days or a week previously; and that he was somewhat biassed by the side on which he was called. He also said that he derived most of his information from the memorandum of Sir Henry Thring, to be mentioned immediately.

Sir Henry Thring differed so far from Mr. Stephen, that he thought the Scotch Banks might open branches in the provinces beyond the 65 miles limit, though he spoke somewhat doubtfully (Q. 404, 406). But he agreed with Mr. Stephen that it is illegal to open branches in London or within the limit of 65 miles.

He also presented a memorandum to the Committee containing frequent references to the second edition of this work; and stating certain general conclusions he had arrived at. "Such being the

circumstances of the case, the first question is whether it is or is not legal for Scotch joint stock company banks of issue to establish branches in England. In answer to that question it is submitted that the prohibitions contained in the Acts of 1697 and 1708, and repeated in 1800, are still in force, with the special modification introduced by the Act of 1826, and are perfectly general in their terms and extend to Scotch banks of issue as well as to country banks of issue in England, and, consequently, that, with the exception of the Royal Bank of Scotland, which is empowered by Act of Parliament to have a branch in London, all other branches belonging to Scotch banks of issue in London or within 65 miles thereof, are illegal. On the other hand, there does not appear to be any legal prohibition against the Clydesdale banking company establishing their branches in Cumberland, being at a distance of more than 65 miles from London."

Sir Henry Thring then presented some suggestions as to the policy of expelling the Clydesdale Bank by law from Cumberland: into this consideration we shall not follow him, as, of course, every one is entitled to have his own opinion as to expediency and policy. We shall deal with nothing but the pure Law of the question.

The Author of this work having been expressly selected by the Royal Commissioners for the Digest of the Law to declare the Law on all points respecting to Bank Notes, and, moreover, having been frequently referred to in the memorandum presented by Sir Henry Thring, and being perfectly satisfied that there was no foundation whatever for the doctrines laid down by Mr. Stephen and Sir Henry Thring, applied to the Chancellor of the Exchequer to be heard before the Committee, but the Chancellor refused to hear him. As the opinions given by these learned gentlemen were calculated to strike at such wide spread interests, he wrote a letter to the Daily News, which appeared in that paper on the 8th May, 1875, shewing that the opinions expressed by these gentlemen were quite destitute of any foundation.

There were also published in the appendix the opinions given in 1833 by Sir James Scarlett, Sir Edward Sugden, and Mr. Griffiths on the question whether Joint Stock Banks of Deposit could be established in London previously to the clause in the Bank Charter Act of 1833. All these three gentlemen held that they could not; they maintained that the words of the monopoly

they might do upon an inland bill of exchange made or drawn according to the custom of merchants against the person or persons, body politic and corporate, who, or whose servant or agent as aforesaid, signed the same; and that any person or persons, body politic or corporate, to whom such Note that is payable to any person or persons, body politic and corporate, his, her, or their order, is indorsed or assigned, or the money thereinmentioned ordered to be paid, by indorsement thereon, shall and may maintain his, her, or their action for such sum of money either against the person or persons, body politic and corporate, who, or whose servant or agent as aforesaid, signed such Note, or against any of the persons that indorse the same, in like manner as in cases of inland bills of exchange."

Thus we see that even supposing that the doctrine of the King's Bench from 1691 to 1703 was right that Promissory Notes payable to bearer were not legal at Common Law and not within the Law Merchant, this defect was remedied by Statute; and this Act conferred in the fullest manner possible upon every person, or partnership, or Corporation, the right to issue Promissory Notes payable to bearer, and that the bearer might sue the maker or issuer.

But, upon a thorough investigation of the question, the Author was satisfied that the series of judgments in the King's Bench from 1691 to 1703, which were the cause of the Act of Anne being passed, were entirely erroneous, and that the previous series of decisions from Edward III. to William III. were the true law, and he was supported in this by finding that Lord Mansfield pronounced them erroneous, and Lord Kenyon, who was notoriously a rigorous adherent of the Common Law, seems to have agreed in this opinion. After enumerating the several cases, he said—

"The preceding cases seem to establish incontestably the following as the true Common Law doctrine as to the transferability of Debts, or Choses-in-action.

1. Where the Obligor granted the Obligation to the Obligee alone, an Assignee of the Obligation could not sue the Obligor in his own name.

2. But wherever the Obligor granted the Obligation to the Obligee and his Assigns, or to "bearer," thereby giving his express consent to its alienation, the Obligor might freely assign it, and

the holder of it had a right of action against the Obligor, for he was bound by his own contract, for modus et conventio vincunt legem."

Upon an examination of the argument contained in the Author's paper, the Royal Commissioners unanimously selected him to prepare the Digest of the Law of Bills of Exchange, Bank Notes, &c. Now, as Lord Cranworth, who, as Chancellor, gave the above-mentioned opinion in the case of Dixon v. Bovill, was Chairman of the Commissioners, and concurred in the Author's appointment, the fair inference is that he was satisfied that the cases and arguments contained in the Author's paper proved that the current doctrine as to the non-assignability of choses-in-action was untenable; and as the Commissioners included Lord Westbury, Lord Cairns, Lord Hatherley, Lord Penzance, Lord Selborne, the fair inference is that these noble Law Lords were also convinced by the Author's paper; for how could they have selected him to prepare the Digest, with the full knowledge that he intended to state the Law to be the exact reverse of what it was universally supposed to be, unless they had been convinced by his arguments that he was in the right; and that the doctrine prevalent on the Bench and at the Bar was wrong?

The Commissioners discontinued the work on the Digest, and consequently the Author's Digest was never published. But in 1875 the question of the transferability of choses-in-action came before the Court of Exchequer in the case of Goodwin v. Robarts and others. Scrip to deliver foreign bonds was pledged unlawfully with the defendants, and the original owner brought an action against them to recover it, alleging that Scrip-which was a mere Right to demand a Right-was not subject to the principle of Currency. But the Court of Exchequer held that it was. And this decision was confirmed on appeal to the Exchequer Chamber. In this case the latter Court had before them the paper which the Author had prepared for the Royal Commissioners; and in delivering the judgment of the Court, the Lord Chief Justice of England did the Author the very high honour of saying—

"We find it stated in a Law Tract by Mr. Macleod, entitled Specimen of a Digest of the Law of Bills of Exchange, printed, we believe, as a Report to the Government, but which from its research and ability deserves to be produced in a form calculated to insure a wider circulation," &c.

After reciting the cases in which the Courts had held that Promissory Notes payable to bearer were perfectly legal and valid documents, and that the bearer had a right of action on them, the Lord Chief Justice said-"Thus far the practice of merchants, traders, and others, of treating Promissory Notes, whether payable to order or bearer, on the same footing as Bills of Exchange, had received the sanction of the Court, but Holt having become Chief Justice, a somewhat unseemly conflict arose between him and the merchants as to the negotiability of Promissory Notes, whether payable to order or to bearer, the Chief Justice taking what must now be admitted to have been a narrow-minded view of the matter, setting his face strongly against the negotiability of these instruments, contrary, as we are told by authority, to the opinion of Westminster Hall, and in a series of successive cases persisting in holding them not to be negotiable by indorsement or delivery. The inconvenience of trade arising therefrom, led to the passing of the Statute of 3 & 4 Anne, c. 9, whereby Promissory Notes were made capable of being assigned by indorsement or made payable to bearer, and such assignment was thus rendered valid beyond dispute or difficulty.

"It is obvious from the preamble of the Statute which merely recites that "it had been held that such notes were not within the custom of merchants," that these decisions were not acceptable to the profession or the country. Nor can there be much doubt that by the usage prevalent amongst merchants, these notes had been treated as securities, negotiable by the customary method of assignment, as much as Bills of Exchange, properly so called. The Statute of Anne, may, indeed, practically speaking, be looked upon as a declaratory statute, confirming the decisions prior to the time of Lord Holt."

Thus it is seen that the Exchequer Chamber in 1875, exactly confirmed the doctrine of Law which we set forth in 1868, which had already received the approval of the Digest Commissioners, and which was a complete reversal of the prevalent opinion both on the Bench and at the Bar, as to the transferability of choses-inaction, and this miserable superstition was at length exterminated from English Law, just on the eve of its being abolished by the Supreme Court of Judicature Act, which enacts that the doctrines of Equity shall prevail wherever they conflict with those of Common Law.