weight, so long as it is notorious that the same is resolvable into imperial weights. In this way the boll may resume its place, as it is well understood to have its equivalent in weight, only that the amount of that weight varies in different districts, though five hundredweight is the general equivalent of the boll. Thus the uniformity sought by the statute is not obtained.

But a point of vastly greater importance has been recently raised in several Sheriff Courts. Since the passing of the Acts of uniformity, where the nullity of the contract, as one by local measure, has been pled against an action to enforce the sale by compelling delivery to be given or taken, it has been uniformly held in local courts that no action could be sustained on such contract. No such case has yet been decided in the Supreme Court. Where delivery had been given and taken, in an action for payment of the contract price, and where the defence of nullity was set up, it has been generally held that no action can be sustained for the contract price. But both in law and equity the original owner has been held entitled to have his property restored to him, or its value, not according to the contract, but according as its intrinsic or market value stood at the time, not of the sale, but of the change of possession of the commodity. In some cases this has been found to be higher than the covenanted price, and thus the objector has, according to the saying, 'gained a loss.' Recently a very different rule has been recognised in some counties, where it has been held that a person buying otherwise than by imperial standards, is entitled to hold the property thus fraudulently obtained, and to set the original owner at defiance, and so give neither restitution nor equivalent reparation. This doctrine is very startling, and leads to strange results, opening a wide door for legalized fraud. No authority for such rule of decision has yet been given in the Supreme Courts either of England or Scotland.

It is a mistake to hold that the proprietor of the commodity is seeking to enforce an illegal contract. There is a legal sale, or there is not. If legal, then the contract is good, and must be enforced; but if illegal, it is null on both sides. It cannot be good to the purchaser and bad to the seller. There is no transfer of the property, -the ownership is still with the original owner. The possession, or rather custody, has only been changed, and the owner is entitled to follow and vindicate his property; and if he cannot get it, through its destruction by the fault of the possessor, he is clearly entitled to

its true equivalent in money. His action is not laid on the contract. He repudiates the contract, and sues for his property or its value, obtained by the defender without legal right or title.

If the contract be illegal, both parties are participant in the illegality, and such cannot benefit the one more than the other. Both must be bound, or neither. The contrary doctrine is founded solely on the maxim of the civil law, Melior est conditio possidentis ubi neuter jus habet. This rule may be applicable to some cases, where parties are claiming property both on inept though colourable titles. It may warrant the party in possession to keep his hold thereof, but does not preclude the other party from the equivalent of value. But in the case in hand the possessor has no jus or right. That remains entirely with the original owner of the subject, who was, on the possessor's own showing, never legally divested thereof. If civil law maxims are to rule in such commercial matters, there may be arrayed many more on the other side, much more pertinent to the issue. Amongst many, the following may be cited:— Fraus et jus nunquam cohabitant. Nemo cogitur rem suam vendere etiam justo pretio. Nemo debet locupletari ex alterius incommodo. dolo suo proprio relevetur aut auxilium capeat.

Nemo ex

It has been repeatedly held in England, that a statute ought never to be construed so as to work injustice.' (Sir J. Nedham's case, 8 Rep. 136.) And again, 'No statute can be construed in such a manner as to be inconvenient and against reason.' (Hughes, Caith. 136.)

In the case of Henry, before noted, Lord Justice-Clerk Boyle remarked, 'Although even if the Act were applicable to the case, I must say it is well worthy of consideration whether the pursuer could be allowed to found on the objection-whether a party under whose directions the deed was drawn up, and who intends the other to act on it as valid, is entitled to turn round and say that it is null and void. I do not think he could.' Lord Brougham, the Chancellor, in moving the affirmance of the decision of the Court below, adopted similar views, that a party to such contract was barred by personal exception from taking benefit from the same.

It has been attempted to defend this rule of spoliation by reference to smuggled or contraband goods, for which no action in any shape can be maintained. But the distinction is apparent. cases there is an inherent vice in the article, which can be

VOL. VII. NO. LXXXI.-SEPTEMBER 1863.

In such

seized in

3 P

the hands of whosoever has possession thereof. It is in the essence of the article. The nullity under the Uniformity of Measures Act has reference only to the accidents of the contract, and has no reference to the article itself. Whisky, which has been cradled in the glen, nursed in the braes, and escaped the guardianship of the gauger, is in itself proscribed. But oats, barley, and potatoes have no such illicit brand attached to them under the Weights and Measures Acts. The contract is merely declared null. The article is not declared contraband, nor is it put beyond commercial dealing. The 'Exce with the crooked horn,'-the term in song applied to the wormy still,-is doubtless put beyond the pale of commerce. But not so the Ewe that follows the shepherd. But even under the stringent excise laws, it has been held that a foreign merchant can recover the price of goods sold to a Scotchman, although in the knowledge they were to be run in violation of the revenue laws, if he was not directly a participator in the violation of the laws. There is no provision in any statute that no action shall be maintained for restoration or payment of the value of goods sold by local measures. Let the provision of mere nullity of contract be contrasted with the protection under the Act 24 Geo. II., c. 40, known as the Tippling Act. There, though a person has obtained actual possession, or very luxuriously consumed spirituous liquors received at one time of less value than 20s., the pursuer shall not recover any sum of money, debt, or demand on account of such spirituous liquors.' But the Court have, on the call of equity, relaxed the rigour of this statute in many respects. An action by one spirit merchant against another merchant has been sustained, though the quantities of spirits have been less at each delivery than the statutory quantity. (Jackson, C. N. P. 180.) So, where the accounts for spirituous liquors has been paid, repayment cannot be demanded. (Dawson, 6 Esp. 24.)

Should this recent doctrine be sustained by the Supreme Court as sound law, recourse must be speedily had to the Legislature for an amended Act. With such an interpretation, the present statute might be appropriately entitled, 'An Act for the Encouragement and Protection of Fraud? It will open a very lucrative field for those who have hitherto cultivated that of ring-dropping and thimblerigging, now somewhat barren and effete. This new occupation can be carried on in defiance of the police, and under protection of the statute law as interpreted by the judges of the land, the administrators of its justice. Take, for example, how cheaply a farmer may

harvest his grain. He has only to hire the reapers at so much the Scotch acre, and when payment is sought, toss the statute in their face, and laugh them to scorn, being under the protection of a Sheriff who holds that the contract being null under the statute, the labourer is not worthy of his hire.' Such a state of things assuredly had the Apostle James in his far vision, when he exclaimed, Behold, the hire of the labourers which have reaped down your fields, which is of you kept back by fraud, crieth.'

NOTES ON THE LEGISLATION OF THE YEAR.

THE past session of Parliament has been comparatively unfruitful, if the results of legislative action are to be measured by the additions made to the statute law of the country. Although the current annual volume of the statutes at large may not be of much smaller dimensions than its predecessor, it is to a large extent made up of the usual class of formal Acts which are renewed once a year, of revenue Acts, and of Acts of a quasi-local character, among which the English Local Government Supplemental Act, with others of a kindred nature, occupy no inconsiderable portion of the space. Of strictly Scotch Acts, the number is very limited. The most important Scotch measure, the Court of Session Bill, was withdrawn at an early stage, in order to give time for consideration. Other Scotch Bills, of little general interest, have passed through their necessary stages, and have become law; and, in addition to these, we observe that several measures connected with finance, trade, navigation, and other interests not immediately connected with the practice of the law, have received the sanction of Parliament. To some of these we propose to direct the attention of our readers in a cursory way.

I. Questions arising out of that branch of fiscal legislation which is concerned with the collection of the revenue of Customs, are not of frequent occurrence. It is therefore unnecessary to refer to the provisions of the Tobacco Duties Act, 26 Vict., c. 7, farther than to say that it was introduced for the twofold purpose, first, of admitting foreign tobacco at a rate of duty which, in comparison with the duties formerly levied, may be termed moderate; and, secondly, of enabling the British manufacturer to manufacture in bond without

paying duty on the raw material, and to use saccharine matter in the manufacture, with the view of placing the home and foreign manufacturers as far as possible on an equal footing as regards liability to duty, and the power of manufacturing in the most approved manner. This is probably the last of the extensive series of legislative changes consequent on the recognition of the policy of free trade, and having in view the removal of differential duties and the establishment of a system of unrestricted competition between the home and foreign manufacturers.

II. The Salmon Acts Amendment Act, 1863' (26 Vict., c. 10), is intended to give facilities for preventing the evasion of the various statutes regulating the periods within which salmon may be captured and exposed for sale in the United Kingdom. The existing laws are defective, in not prohibiting and punishing the exportation of unseasonable salmon, and of salmon caught in close time. The new Act imposes a penalty of five pounds for each fish exported, or entered for exportation, in such circumstances, and provides for the recovery of the penalties under the provisions of the Acts now in force for the respective divisions of the United Kingdom. The subject of salmon has also been dealt with in a subsequent Act (c. 50), which, however, only continues the power of the Commissioners appointed by the Act of last year.

III. By an Act, forming chapter 20 of the present year, the Speaker is authorized, on the occurrence of a vacancy in the House of Commons during the Parliamentary recess, to issue his warrant for the issue of a new writ, after giving six days' notice in the London Gazette. Under the existing law, fourteen days' notice is requisite.

IV. One of the most important financial changes which have been effected for many years has taken its place in the statute-book, under the title of An Act to give greater Facilities to the holding of the Public Stocks' (26 Vict., c. 28). According to the usage which has hitherto obtained in the sale and transfer of the public funds, all transactions in stocks require to be made in the form of a transfer in the books of the Bank of England, without which formality the seller would not be divested of the property, or the purchaser put in a position to claim the payment of dividends. The necessity of carrying through purchases of stock by a transfer at the Bank has led to the employment of brokers in all transactions in the funds, although it is well known that, in at least one class of transactions,-the settlement of clearing-house balances,-brokerage might be dispensed with,