Page images
PDF
EPUB

Consolidation of the Statute Law,

261 was that there was a great deal of writing in have been obliged to make in the course of the public journals respecting it, and this pos- preparing these and the seven other Bills which sibly had something to do with the result. sve have already completed, has drawn our atHe should, however, do his duty regardless of tention to many most serious defects and imany observations that might be made respecting perfections in the statutory enactments relating it. The learned Baron probably referred to to crimes, not only in the manner in which Sloan's case.

those enactments are framed, but also in their “We would next observe that no rule, prin. omitting many cases equally as deserving of ciple, or decision, as to Common Law offences, punishment (and in many instances more so) can be considered absolutely, and under all as those against which they provide. In praccircumstances, binding on the Judges; and tice, however, these defects have not often been that there are some peculiarities with reference brought to light; which suggests the concluto criminal cases which do not apply to the sion that it may be very possible for a Statute general law. For example, many decisions in to have come defects in it, and yet in practice criminal cases have been made without argu- to work very well. ment, or after argument on one side only, and consequently are entitled to much less weight

“ It is also said that it is impracticable to rethan if the cases had been fully argued. In duce all the common law offences into a Stasome instances no reasons for the decisions tute, since no foresight can anticipate all cir. have been reported: in others, contradictory cumstances that may arise. or irreconcilable reports have been published. Agaio, all such decisions are but instances of

" It may be remarked that the same objection the law as applicable to the particular facts of applies equally to the Statute Law, for new cireach case, and it is sometimes very difficult to cumstances (the creation of railways, for indetermine whether the case is to be treated as stance) may give rise to new states of facts which laying down a rule, or only as an example of a deserve punishment. But, assuming this to be more general rule.

correct as regards Common Law offences, we ap" Another objection urged is, that new Sta- prehend that the cases omitted will be extreme tutes always give rise to numerous questions, minor importance. And it may not be un

ones, and those very few, and probably of which have to be decided upon a critical exa- worthy of notice, that although it is said to be mination of the terms of the Statute alone : a very bold thing to provide for all offences

“Ur. Justice Talfourd in proof of this refers against the person, none of the learned Judges to 'the Statute of Frauds, which, framed by

has pointed out a single offence against the one of the greatest lawyers that ever lived, has person which is not provided for by the Bill been the subject of almost numberless decis relating to those offences. sions. We admit that a new Statute will, in

“ It is also worthy of remark that, by the all probability, lead to some new decisions ;

course adopted by the Bills, no such omission but a better proof tbat such Statutes - may, those where, after specially providing for cer

can exist in many instances; for example, in nevertheless, be highly expedient cannot be given than is afforded by the Statute of Frauds tain cases, a clause is added including all other

cases of the like kind. To illustrate what we itself, every line of which, Lord Northington used to say, was worth a subsidy.

mean, we refer to sect. 107, which includes all “We cannot help also referring to Lord attempts to murder, and sect. 120, all attempts Campbell's Act for the Amendment of the before provided for by special and particular

to cause grievous bodily harm, other than those Criminal Law, (14 & 15 Vict. c. 100], to parts

enactments. of which some of the Judges are understood to bave objected at least as strongly as to these “Several of the Judges recommend that the Bills; for not only has that Statute not created Statutes should be consolidated, and new prothe evils predicted, but it has almost wholly got rid of technical objections ; very few questions visions added where deemed essential; and that have been raised upon it, and the only com- where there are conflicting decisions, or the law plaint made in respect of it has been that the is doubtful, the law should be settled by enactprovisions which were struck out in its course

ment. through Parliament did not become law.”

"We would here also observe, that the * They therefore seem to admit that, in strict examination of the Statutes which we cases of difficulty and doubt, the Common Law

offences might be made clear by statutory en * " In Reg. v. Sill (1 Pearce C. C. R. 132), actment. If their recommendation were folthe Court of Queen’s Bench expressed their lowed in all cases where there is difficulty and regret that they were obliged to. reverse a doubt, few indeed would be the common law judgment against the defendant for obtaining offences, the definition of which would not in property by false pretences, on the ground that part be contained in some Statute. Besides, it was not stated in the indictment to whom if the Legislature is competent satisfactorily to the property belonged. A clause rendering remove such doubts and difficulties, we presuch statement unnecessary had been struck sume it must follow as a matter of course that out of Lord Campbell's Bill."

it is equally competent to deal with cases in

ENTERING

APPEARANCE

FOR

PARTIES

[ocr errors]

STATE

OF BUSINESS IN THE OFFICES OF
MASTERS IN CHANCERY.

262

Statute Law.--Construction of Statutes.- Parliamentary Return. which no such doubts or difficulties have other like causes, it is necessary to come to the arisen.

Court;

but not to enable a party, in a con“With respect to the observations of Chief tested suit, and upon an interlocutory applicaJustice Jervis, that “It is very convenient for tion before the hearing of the cause, to obtain the draughtsmen to select subjects which re- a decision upon the main questions at issue in quire codification less than any other,-and it.” which are comparatively easy, as specimens of what

may be done upon the law at large,' “ We would remark that the Lord Chancellor

ADDED, UNDER S. 52. and others well know how far the selection of Upon the bankruptcy of a principal defendthese Bills was made by us; and as to the ant, his assignees were made parties by supeasiness of framing the first Bill, a very good plemental order, under the 15 & 16 Vict. c. 86, opinion can be formed from the time spent by the Committee in considering it. In proof of s. 52, but although served with the order they the importance and difficulty of the subjects had not entered an appearance. contained in these bills, we beg also to refer to The Master of the Rolls, on motion, gave the following statements of the Criminal Law liberty to the plaintiff to enter an appearance Commissioners : We have made choice of this subject (theft), because we think that no

for the assignees. Cross v. Thomas, 16 Beav. other branch of the criminal law exhibits, in 592. 80 remarkable a degree, the changes that the unwritten law has undergone, in consequence PARLIAMENTARY RETURN. of its having been originally framed to meet less complicated circumstances, and having been afterwards adapted to the growing exigencies of society' (1 Rep. p. 4). 'If in addition to such difficulties, as to questions

The following is the state of business in the whether the owner of property retains any con- Offices of the Masters in Chancery, collated structive possession at all, a number of intricate from a return to the House of Lords, ordered points with regard to the owner having at the to be printed 22d June last :same time, and with respect to the same pro- Sir George Rose : perty, a constructive possession as against one

The number of causes and matters originally party, but no possession as against another, is considered, it must be admitted that there are in which nothing remains to be done, except

referred and now pending, exclusive of those few branches of the law in which the abstruseness and complexity of the subject present passing receivers' accounts, is greater difficulties in the statement of precise, to be done in the office except passing re

And the number in which nothing remains consistent, and intelligible rules,' than theft

36 (1 Rep. pp. 8, 9). "The difficulties peculiar ceivers’ accounts, is to the Digest of Common Law crimes (arising ferred and now pending, exclusive of those in

The number of causes and matters transprincipally from the vague, changing, and often which nothing remains to be done, except passconflicting authorities, from which the law is to be extracted) are far more formidable than ing receivers' account, is as follows:

7 those which attend the consolidation of the From Master Kindersley Statute Law. This remark particularly applies

Farrer to the Common Law offences comprised under

Brougham

12 Senior

17 the general heads of Homicide and Criminal Violations of the Right of Property, including

Sir Wm. Horne

25 of course, in the latter, the crime of theft' (4 Rep. p. 9).

And the number in which nothing remains CONSTRUCTION OF STATUTES.

to be done, except passing receivers' accounts, is

63 EQUITY JURISDICTION IMPROVEMENT The matters under the winding-up Acts ori

ginally referred, and now pending in the office,

And those transferred from the offices of SALE OF ESTATE BEFORE HEARING, UNDER

Masters Kindersley, Farrer, Brougham, Ses. 55. In Prince v. Cooper, 16 Beay. 546, the nior, and Sir Wm. Horne, are

The total number of causes and matters Master of the Rolls, in refusing an order be- now depending in the office is therefore · 197 fore the hearing for the sale of an estate, And of those in which nothing remains to under the 15 & 16 Vict. c. 86, s. 55, said: “The be done, except passing receivers accounts 99 Act is intended to apply only to those cases, in Richard Richards, Esq. : which, for the protection of the property or

The number of causes and matters originally

100

[ocr errors]

13

ACT.

13

are

[ocr errors]

9

is.

[ocr errors]

.

[ocr errors]

Parlamentary Return of Masters in Chancery:

263 referred, and now pending, exclusive of those ferred and now pending, exclusive of those in in which nothing remains to be done, except which nothing remains to be done, except passpassing receivers' accounts, is

82 (ing receivers' accounts, is as follows: And the number in which nothing remains From Master Kindersley to be done in the office, except passing re

Farrer

5 ceivers' accounts, is

45
Brougham

7 The number of causes and matters trans.

Senior

13 ferred from the offices of Masters Kindersley,

Sir Wm. Horne

19 Farrer, Brougham, Senior, and Sir W. Horne, and now pending, exclusive of those in which

49 nothing remains to be done, except passing And the number in which nothing remains receivers' accounts, is

47 to be done, except passing receivers' accounts, And the number in which nothing remains is

66 to be done, except passing receivers' accounts,

The matters under the Winding-up Acts

66 originally referred, and now pending in the The matters under the winding-up Acts ori- office, are

9 ginally referred, and now pending in the office, And those transferred from the offices of are

17 Masters Kindersley, Brougham, Senior, and "And those transferred from the offices of the Sir Wm. Horne, are

7 Masters Farrer, Brougham, and Senior, are

8 The total number of causes and matters now The total number of causes and matters now depending in the office, is therefore . 148 depending in the office, is, therefore 154 And of those in which nothing remains

And of those in which nothing remains to to be done, except passing receivers' acbe done, except passing receivers’ accounts, 111 counts

. 122 W. H. Tinney, Esq.

Joseph Humphry, Esq.: The number of causes and matters originally

The number of causes and matters origireferred and now pending, exclusive of those nally referred and now pending, exclusive of in which nothing remains to be done, except those in which nothing remains to be done, passing receivers' accounts, is

113 except passing receivers' accounts, is . 133 And the number in which nothing remains

And the number in which nothing remains ceivers' accounts, is to be done in the office, except passing re- to be done in the office, except passing re

ceivers' accounts, is

28 52 The number of causes and matters trans

The number of causes and matters transferred and now pending, exclusive of those in ferred and now pending, exclusive of those in which nothing remains to done, except passing which nothing remains to be done except passreceivers' accounts, is as follows:

ing receivers' accounts, is as follows :From Master Lynch

From Master Kindersley

15 5 Farrer

19 Kindersley

12 Farrer

Brougham

12 17 Senior

18 Brougham

Sir Wm. Horne

46 Senior

21 Sir Wm. Horne

110 And the number in which nothing remains

96 And the number in which nothing remains

to be done, except passing receivers' accounts, is

34 to be done, except passing receivers' accounts, is

The matters under the winding-up Acts

66 The matters under the winding-up Acts ori

originally referred and now pending in the office, are

12 ginally referred, and now pending in the office, And those transferred from the offices of

14 And those transferred from the offices of and Sir Wm. Horne, are . Masters Kindersley, Farrer, Brougham, Senior,

11 Masters Kindersley, Farrer, Brougham, Senior, and Sir W. Horne, are

The total number of causes and matters now The total number of causes and matters now

depending in the office is, therefore .. 266 depending in the office, is therefore.

And of those in which nothing remains to be

237 And of those in which nothing remains to

done, except passing receivers' accounts. 62 be done, except passing receivers accounts, 118

Summary :

The total number of causes and matters now J. E. Blunt, Esq. The number of causes and matters originally is as follows :

depending in the offices of the several Masters referred and now pending, exclusive of those in which nothing remains to be done, except

Sir George Rose

197 passing receivers' accounts, is

Richard Richards, Esq.

154 83 And the number in which nothing remains

W. H. Tinney, Esq.

237 to be done in the office, except passing re

J. E. Blunt, Esg.

148 ceivers' accounts, is

Joseph Humphry, Esq.

56 The number of causes and matters trans

.

[ocr errors]

.

[ocr errors]
[ocr errors]
[ocr errors]

8

[ocr errors]

33

[ocr errors]

are

14

.

.

266

.

264 Differences in the Mercantile Laws of England, Ireland, and Scotland.

And of those in which nothing remains to W. H. Tinney, Esq. be done, except passing receivers' accounts :

J. E. Blunt, Esq

Joseph Humphry, Esq. Sir George Rose

99 Richard Richards, Esq. : 111

118
122
62

512

DIFFERENCES IN THE MERCANTILE LAWS OF ENGLAND, IRELAND,

AND SCOTLAND.

SALE OF GOODS.

England and Ireland.

Scotland.
SALE OF GOODS.
Constitution of Contract.

Constitution of Contract. 1. No contract for the sale of goods, wares, 1. A contract for the sale of any goods or or merchandize for the price of 101. or up- other moveable (with the exception of ships), wards, is good without some note or memo- is effectual without writing. randum in writing of the bargain be made and Whether the goods are, or are not, manusigned by the party to be charged by such factured or ready for delivery, or whether contract or his agent.

they are to be delivered immediately, or at Except there be delivery to, and acceptance a future day. by, the buyer of the whole or part.

And whether the sale be by private bargain Or the buyer give something in earnest to or public auction. And the contract may

bind the bargain, or in part of payment of be established by parole or other legal the price. 29 Car. 2, c. 3, s. 17 (Eng- evidence.

land); 7 Wm. 3, c. 12, s. 13 (Ireland). A bargain within either of the exceptions

above-mentioned may be established by

any legal evidence, except as to ships. The Statute of Frauds applies, although the

goods are not to be delivered till a future time, or are not made at the time of the contract, or some act is requisite for rendering the goods fit for delivery. 9 Geo.

4, c. 14, s. 7.
And it applies, although the goods were sold

by public auction." Kenworthy v. Scho.
field, 2 B. & C. 945.
Effect of Contract on Ownership.

Effect of Contract on Ownership. 2. The property in specific goods ready for 2. The property does not pass to the buyer delivery passes to the buyer, on the making of until delivery. the contract and before delivery.

Yet the buyer is subject to the risk of acciTherefore the buyer is subject to the risk of dents to the thing bought from the date accidents to the thing bought.

of the contract. 3. If credit be not stipulated for, or if a sti- 3. Though credit be stipulated for, the buyer pulated term of credit has expired, the seller has no property until delivery. may retain possession till the price be paid, The seller may retain the goods, not only but not for a general balance arising from other for the price, but also for a separate debt transactions.

due to him by the vendee, and (it has been recently held that) he is entitled to do so, even against an onerous sub-vendee, and for a balance owing from the first vendee in respect to dealings after the second sale, and notice thereof to the first seller. Melrose v. Hastie, 13 Session Cases, 880; M'Naughton v. Bairds, 14 Session Cases,

1010. 4. If goods are sold on credit, and before

4. If goods are sold on credit, and before delivery to the buyer, the seller sell them delivery to the buyer the seller sell and deliver (otherwise than in market overt), and deliver them to a third party, the first buyer has no them to a third party, the first buyer has a re- remedy against such third party, unless he ese medy for the goods or their value against such tablish fraud or collusion. third party, whether he had or had not notice of the first sale.

Purchaser's remedy against the Seller. Purchaser's remedy against the Seller. 5. The purchaser cannot, in general, enforce 5. The purchaser's remedy is to have impleDifferences in the Mercantile Laws of England, Ireland, and Scotland. 265 Purchaser's remedy against the Seller. Purchaser's remedy against the Seller. delivery of the goods purchased specifically, ment of the contract by delivery of the goods, and bis remedy practically resolves itself into and damages for withholding delivery. If spea claim for damages, whether he sues specially cific goods are sold, and in the possession of for non-performance of the contract, or brings the vendor, the vendee may bring an action ad an action of detinue for the goods themselves, factum præestandum to enforce delivery. or an action for the conversion of them.

But not if the vendor has become bankrupt;

and in that case the vendee's claim resolves into a personal demand for damages, and he will be ranked along with other personal creditors on the bankrupt

estate. Seller's remedy against the Purchaser. Seller's remedy against the Purchaser. 6. Wheu specific goods have been sold, the 6. The seller may sue the purchaser for the seller may sue the purchaser for the price. price and interest, whether the goods sold are When the sale is not of specific goods, the specific or not, provided goods according to

seller must sue on the contract for the da- the contract have been tendered to the purmages actually sustained.

chaser. Sale before Execution against Seller.

Sale before Diligence against Seller. 7. After sale upon credit, and before delivery, 7. After contract of sale and before delivery, the goods cannot be sold by the sheriff for the whether the goods have or have not been paid benefit of an execution creditor of the seller. for by the buyer, they may be taken in execuAfter sale, and before delivery, an execution tion by a creditor of the seller, and such dili

creditor of the buyer may, as against cre- gence gives the creditor a right to have the ditors of the seller, have the things seized goods sold for his benefit. by the sheriff in the hands of the seller, If the seller becomes bankrupt before deand sold for the benefit of such creditor of livery, the goods belong to the trustee for the buyer, subject to the vendor's lien for the general body of the seller's creditors, the price, if unpaid.

and the buyer is merely a creditor for the It is Otherwise in bankruptcy, where the price, or so much of it as he may have

goods are left in the order and disposition advanced, and for damages, in so far as of the vendor, as apparent owner, and he he may have sustained loss by not having is made a bankrupt. 12 & 13 Vict. c. implement of the contract. 106, s. 125 (England); 6 Wm. 4, c. 14, s. 86 (Ireland). Sale after Execution against Seller.

Sale after Diligence against Seller. 8. An execution creditor of the seller may 8. The issuing of a precept of poinding and have a sale for his benefit of all the seller's the execution of a charge for payment, until goods in the possession of the seller at the time followed by an execution of poinding, do not of delivery of the writ to the sheriff, notwith- prevent a sale of goods by the debtor. standing a subsequent sale to a bona fide purchaser, not in market overt. Samuel v. Duke, 3 M. & W. 622. Warranty.

Warranty. 9. Under circumstances such as those 9. There is an implied warranty on the part stated on the other side, there is no implied of the seller, that the thing sold will be fit for warranty.

the purpose for which the seller knows that it waś bought, even against defects unknown to the seller, and when the purchaser has had a full opportunity of inspecting the thing. 1 Bell's Comm. 438.

Auction.

Auction. 10. The seller, without giving notice of his 10. The seller must give notice of his inintention, may employ one person to make one tention to employ a person to bid on his behalf. or more biddings up to a fixed sum, to prevent the property being sold at an undervalue. Flint F. Woodin, 9 Hare, 618. Measure of damages for non-fulfilment of Con- Measure of damages for non-fulfilment of Contract by Seller to deliver.

tract by Seller to deliver. 11. The value of the thing bought at the 11. The value of the thing between the time time at which the delivery should have taken at which the delivery should have taken place, place can, in general, alone be regarded, and and the time of trial may, in general, be taken the purchaser is not entitled to compensation into consideration in assessing the compensa

« EelmineJätka »