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GAZETTE
NOVEMBER 1991
Lanka, South Africa and the United
States of America. Professor Guest
also provides, where relevant, com-
parative references to the Geneva
Convention providing a Uniform
Law for Cheques and the American
Uniform Commercial Code. The full
text of the United Nations Con-
vention on International Bills of
Exchange and International Pro-
missory Notes is included as an
appendix. Another appendix
contains a helpful set of precedents
of pleadings.
For most lawyers bills of exchange
and promissory notes are, as
Professor Guest remarks in the
Preface, "a rather technical and
arcane area of the law". Never-
theless he has succeeded in his aim
of writing "a systematic, even
readable, treatise" on bills of
exchange, cheques on a bank and
promissory notes. He provides a
full, coherent and up-to-date (the
Preface being dated January 1,
1991) account of the law and the
work can be unequivocably
commended.
Tony Kerr
Statutory Lecturer
in Law, University
College Dublin
The Background of the
Common Law.
Second Edition, By Derek
Roebuck, Oxford University
Press/OUP, Hong Kong, 1990,
£6.99 sterling.
Professor of Laws at Trinity College,
Dublin, Dr. Paul Brand, Dr. Geoffrey
Hand, Mr. Justice Ronan Keane, Mr.
Daire Hogan, Solicitor and Dr.
Colum Kenny have contributed (or
are about to make further signifi-
cant contributions) to our fuller
understanding of Irish legal history.
The Irish Legal History Society, a
society which owes its existence to
the vision of Professor Osborough,
has already advanced the know-
ledge of the history of Irish law.
The author notes that the story of
the common law is a good tale but
it is not a romance. Many lawyers
have tried to convince themselves
and others that it has divine
attributes. The modern after-dinner
speaker who raises his glass to 'Our
Lady of the Common Law' has
many predecessors. The author
refers to reports from at least the
fifteenth century of statements
such as: 'The common law is
nothing but common reason', 'Our
law is founded on the law of God',
and even 'The common law has
been for all time since the world
began'. The author correctly notes
that the common law can only be
understood if it is seen for what it
is: not a romantic ideal or a divine
gift or the acme of the judicial
genius or even the legal aspect of
the most politically wise and refined
race, but an interesting human
construct, the creature of times and
places, of economic forces and
class interest, of battles for power
between political factions and trials
of wits between lawyers of great
skill and inventiveness.
D.L.R. (2d) 354, and found for the
plaintiff. In the English case the
majority (Willmer and Danckwerts
L.JJ.) held that the use of the words
"on or before" gave the maker of
the document an option to
discharge his obligation by paying
the amount at a date earlier than
the date named thus creating an
uncertainty and contingency in the
time of payment. Professor Guest,
like Pringle J; and the five judges of
the Supreme Court of Canada,
prefers the reasoning employed by
Ormerod L.J. in his dissenting
judgment (see p. 67). He con-
sidered that the terms of the docu-
ment created no uncertainty as the
maker would not be under any
obligation to pay the note until the
specified date arrived.
Williamson
-v- Rider,
however, was followed in
Clayton -v- Bradley
[1987] 1 W.L.R.
521.
Another difference between British
and Irish law noted by Professor
Guest concerns the process used
for the clearing of cheques through
a clearing house. In previous
editions of
Chalmers
the view had
been put forward that presentment
to the paying bank takes place
when the cheque was delivered to
the employee or agent of the
paying bank at the clearing house
and this view was adopted by the
Supreme
Court,
reversing
Murnaghan J., in
Royal Bank of
Ireland-v- O'Rourke
[1962] I.R. 159.
In
Barclays Bank pic -v- Bank of
England
[1985] 1 A11 E.R. 385,
however, Bingham J. (as he then
was) said that he preferred the
approach of Murnaghan J. and held
that presentment only took place
when the cheque was presented
for payment at the branch of the
paying bank on which it was
drawn.
Nine other Irish cases appear in the
work although
Reade -v- Royal
Bank of Ireland
[1922] 2 I.R. 22,
which is referred to at p. 617, is
omitted from the Table of Cases. In
addition a relatively large number of
Commonwealth authorities are also
cited (156 Canadian, 78 Australian
and 19 New Zealand) as well as
assorted decisions from Malaya, Sri
Professor F.H. Newark writing in
(1947) 7 NILQ 121 noted that
Ireland may one day have its
Reeves or Holdsworth. Professor
Newark added that it would not be
an easy task to write the legal
history of Ireland. Fortunately, over
the past six decades, there has
been a "quickening interest" in
research in Irish Legal History.
Scholars such as Dr. R.B.
McDowell, Dr. A.G. Donaldson and
Dr. V.T.H. Delaney have made their
contributions to the study of legal
history. In recent times, scholars
such as Professor W.N. Osborough,
We are fortunate that the common
law system has recorded the
names of the judicial innovators
and of judges who withstood the
innovators. The system of reporting
cases in common law countries
allows the names of judges to
stand out in a way they cannot in
the anonymous reports of the
countries of that other great
system, the civil law of continental
Europe.
The author is under no illusions
about some of the judges who have
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