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Sloan's case.

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. we 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 those enactments are framed, but also in their omitting many cases equally as deserving of punishment (and in many instances more so) as those against which they provide. In practice, however, these defects have not often been brought to light; which suggests the conclusion that it may be very possible for a Statute to have some defects in it, and yet in practice to work very well.

“It is also said that it is impracticable to re

"We would next observe that no rule, principle, or decision, as to Common Law offences, can be considered absolutely, and under all circumstances, binding on the Judges; and that there are some peculiarities with reference to criminal cases which do not apply to the general law. For example, many decisions in criminal cases have been made without argument, or after argument on one side only, and consequently are entitled to much less weight than 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 cirhave been reported: in others, contradictory or irreconcilable reports have been published. cumstances that may arise. Again, all such decisions are but instances of the law as applicable to the particular facts of each case, and it is sometimes very difficult to determine whether the case is to be treated as laying down a rule, or only as an example of a more general rule. "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 unones, 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 against the person, none of the learned Judges has pointed out a single offence against the person which is not provided for by the Bill relating to those offences.

"Mr. Justice Talfourd in proof of this refers to the Statute of Frauds, which, framed by one of the greatest lawyers that ever lived, has been the subject of almost numberless deci

sions.' We admit that a new Statute will, in

all probability, lead to some new decisions; but a better proof that such Statutes may, nevertheless, be highly expedient cannot be given than is afforded by the Statute of Frauds itself, every line of which, Lord Northington used to say, was worth a subsidy.

"We cannot help also referring to Lord Campbell's Act for the Amendment of the Criminal Law, [14 & 15 Vict. c. 100], to parts of which some of the Judges are understood to have objected at least as strongly as to these Bills; for not only has that Statute not created the evils predicted, but it has almost wholly got rid of technical objections; very few questions have been raised upon it; and the only complaint made in respect of it has been that the provisions which were struck out in its course through Parliament did not become law."

"We would here also observe, that the strict examination of the Statutes which we

"In Reg. v. Sill (1 Pearce C. C. R. 132), the Court of Queen's Bench expressed their regret that they were obliged to reverse a judgment against the defendant for obtaining property by false pretences, on the ground that it was not stated in the indictment to whom the property belonged. A clause rendering such statement unnecessary had been struck out of Lord Campbell's Bill."

applies equally to the Statute Law, for new cir"It may be remarked that the same objection cumstances (the creation of railways, for instance) may give rise to new states of facts which deserve punishment. But, assuming this to be correct as regards Common Law offences, we ap

"It is also worthy of remark that, by the course adopted by the Bills, no such omission those where, after specially providing for cercan exist in many instances; for example, in tain cases, a clause is added including all other cases of the like kind. To illustrate what we mean, we refer to sect. 107, which includes all attempts to murder, and sect. 120, all attempts to cause grievous bodily harm, other than those before provided for by special and particular

enactments.

Statutes should be consolidated, and new pro"Several of the Judges recommend that the visions added where deemed essential; and that where there are conflicting decisions, or the law is doubtful, the law should be settled by enact

ment.

66

They therefore seem to admit that, in cases of difficulty and doubt, the Common Law offences might be made clear by statutory enactment. If their recommendation were followed in all cases where there is difficulty and doubt, few indeed would be the common law offences, the definition of which would not in part be contained in some Statute. Besides, if the Legislature is competent satisfactorily to remove such doubts and difficulties, we presume it must follow as a matter of course that it is equally competent to deal with cases in

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,'

ENTERING APPEARANCE FOR PARTIES

ADDED, UNDER S. 52.

Upon the bankruptcy of a principal defendant, his assignees were made parties by supplemental order, under the 15 & 16 Vict. c. 86, s. 52, but although served with the order they had not entered an appearance.

The Master of the Rolls, on motion, gave liberty to the plaintiff to enter an appearance for the assignees. Cross v. Thomas, 16 Beav. 592.

PARLIAMENTARY RETURN.

1

STATE OF BUSINESS IN THE OFFICES OF
MASTERS IN CHANCERY.

THE following is the state of business in the Offices of the Masters in Chancery, collated from a return to the House of Lords, ordered to be printed 22d June last :

"We would remark that the Lord Chancellor and others well know how far the selection of these Bills was made by us; and as to the easiness of framing the first Bill, a very good opinion can be formed from the time spent by the Committee in considering it. In proof of the importance and difficulty of the subjects contained in these bills, we beg also to refer to the following statements of the Criminal Law Commissioners: We have made choice of this subject (theft), because we think that no other branch of the criminal law exhibits, in so remarkable a degree, the changes that the unwritten law has undergone, in consequence 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 whether the owner of property retains any constructive possession at all, a number of intricate points with regard to the owner having at the same time, and with respect to the same property, a constructive possession as against one party, but no possession as against another, is considered, it must be admitted that there are few branches of the law in which the abstruseness and complexity of the subject present greater difficulties in the statement of precise, consistent, and intelligible rules,' than theft (1 Rep. pp. 8, 9). The difficulties peculiar to the Digest of Common Law crimes (arising ferred and now pending, exclusive of those in principally 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: those which attend the consolidation of the From Master Kindersley Statute Law. This remark particularly applies to the Common Law offences comprised under the general heads of Homicide and Criminal Violations of the Right of Property, including of course, in the latter, the crime of theft" " (4 Rep. p. 9).

CONSTRUCTION OF STATUTES. EQUITY JURISDICTION IMPROVEMENT

ACT.

SALE OF ESTATE BEFORE HEARING, under
S. 55.

Sir George Rose:

100

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

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The number of causes and matters trans

Farrer
Brougham
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Sir Wm. Horne

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IN Prince v. Cooper, 16 Beav. 546, the Master of the Rolls, in refusing an order before the hearing for the sale of an estate, under the 15 & 16 Vict. c. 86, s. 55, said: "The Act is intended to apply only to those cases, in Richard Richards, Esq.:

The total number of causes and matters now depending in the office is therefore. 197

And of those in which nothing remains to be done, except passing receivers accounts 99

which, for the protection of the property or The number of causes and matters originally

Parkamentary Return of Masters in Chancery:

referred, and now pending, exclusive of those
in which nothing remains to be done, except
passing receivers' accounts, is
And the number in which nothing remains
82
to be done in the office, except passing re-
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ferred and now pending, exclusive of those in
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From Master Kindersley
Farrer
Brougham
Senior

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Sir Wm. Horne

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And the number in which nothing remains to be done, except passing receivers' accounts, 66 The matters under the Winding-up Acts office, are originally referred, and now pending in the

The number of causes and matters trans. ferred from the offices of Masters Kindersley, Farrer, Brougham, Senior, and Sir W. Horne, and now pending, exclusive of those in which nothing remains to be done, except passing receivers' accounts, is And the number in which nothing remains is 47 to be done, except passing receivers' accounts, The matters under the winding-up Acts ori66 ginally referred, and now pending in the office, And those transferred from the offices of the 17 Masters Farrer, Brougham, and Senior, are The total number of causes and matters now depending in the office, is, therefore And of those in which nothing remains to be done, except passing receivers' accounts, 111

are

W. H. Tinney, Esq.:

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

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The total number of causes and matters now depending in the office, is therefore. . 148 154 And of those in which nothing remains to be done, except passing receivers' accounts

The number of causes and matters originally referred and now pending, exclusive of those in which nothing remains to be done, except passing receivers' accounts, is 113

And the number in which nothing remains to be done in the office, except passing re

ceivers' accounts, is

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The number of causes and matters transferred and now pending, exclusive of those in which nothing remains to done, except passing receivers' accounts, is as follows: From Master Lynch Kindersley Farrer

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Brougham

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Senior

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Sir Wm. Horne

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Joseph Humphry, Esq.:

. 122

The number of causes and matters originally referred and now pending, exclusive of those in which nothing remains to be done, except passing receivers' accounts, is . 133 And the number in which nothing remains to be done in the office, except passing receivers' accounts, is

28

The number of causes and matters trans

ferred and now pending, exclusive of those in
which nothing remains to be done except pass-
ing receivers' accounts, is as follows:-
From Master Kindersley

Farrer
Brougham
Senior

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15

19

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

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

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

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The total number of causes and matters now depending in the office, is therefore. 237 And of those in which nothing remains to be done, except passing receivers' accounts, 118

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W. H. Tinney, Esq.

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

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The number of causes and matters trans

J. E. Blunt, Esq.

Joseph Humphry, Esq.

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264

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

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DIFFERENCES IN THE MERCANTILE LAWS OF ENGLAND, IRELAND, AND SCOTLAND.

England and Ireland.

SALE OF GOODS.

Constitution of Contract.

1. No contract for the sale of goods, wares, or merchandize for the price of 101. or upwards, is good without some note or memorandum in writing of the bargain be made and signed by the party to be charged by such contract or his agent.

Except there be delivery to, and acceptance by, the buyer of the whole or part. Or the buyer give something in earnest to bind the bargain, or in part of payment of the price. 29 Car. 2, c. 3, s. 17 (England); 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. Schofield, 2 B. & C. 945.

Effect of Contract on Ownership.

2. The property in specific goods ready for delivery passes to the buyer, on the making of the contract and before delivery.

Therefore the buyer is subject to the risk of

accidents to the thing bought.

3. If credit be not stipulated for, or if a stipulated term of credit has expired, the seller may retain possession till the price be paid, but not for a general balance arising from other transactions.

4. If goods are sold on credit, and before delivery to the buyer, the seller sell them (otherwise than in market overt), and deliver them to a third party, the first buyer has a remedy for the goods or their value against such third party, whether he had or had not notice of the first sale.

Purchaser's remedy against the Seller.

5. The purchaser cannot, in general, enforce

Scotland.

SALE OF GOODS.

Constitution of Contract.

1. A contract for the sale of any goods or other moveable (with the exception of ships), is effectual without writing.

Whether the goods are, or are not, manufactured or ready for delivery, or whether they are to be delivered immediately, or at a future day.

And whether the sale be by private bargain or public auction. And the contract may be established by parole or other legal evidence.

Effect of Contract on Ownership. 2. The property does not pass to the buyer until delivery.

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

3. Though credit be stipulated for, the buyer has no property until delivery.

The seller may retain the goods, not only for the price, but also for a separate debt 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 delivery to the buyer the seller sell and deliver them to a third party, the first buyer has no remedy against such third party, unless he establish fraud or collusion.

Purchaser's remedy against the Seller. 5. The purchaser's remedy is to have imple

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

Purchaser's remedy against the Seller. delivery of the goods purchased specifically, and his remedy practically resolves itself into a claim for damages, whether he sues specially for non-performance of the contract, or brings an action of detinue for the goods themselves, or an action for the conversion of them.

Seller's remedy against the Purchaser. 6. When specific goods have been sold, the seller may sue the purchaser for the price. When the sale is not of specific goods, the seller must sue on the contract for the damages actually sustained.

Sale before Execution against Seller.

7. After sale upon credit, and before delivery, the goods cannot be sold by the sheriff for the benefit of an execution creditor of the seller. After sale, and before delivery, an execution creditor of the buyer may, as against creditors of the seller, have the things seized by the sheriff in the hands of the seller, and sold for the benefit of such creditor of the buyer, subject to the vendor's lien for the price, if unpaid.

It is otherwise in bankruptcy, where the goods are left in the order and disposition of the vendor, as apparent owner, and he is made a bankrupt. 12 & 13 Vict. c. 106, s. 125 (England); 6 Wm. 4, c. 14, s. 86 (Ireland).

Sale after Execution against Seller.

8. An execution creditor of the seller may have a sale for his benefit of all the seller's goods in the possession of the seller at the time of delivery of the writ to the sheriff, notwithstanding a subsequent sale to a bona fide purchaser, not in market overt. Samuel v. Duke, 3 M. & W. 622.

Warranty.

9. Under circumstances such as those stated on the other side, there is no implied warranty.

Auction.

10. The seller, without giving notice of his intention, may employ one person to make one or more biddings up to a fixed sum, to prevent the property being sold at an undervalue. Flint v. Woodin, 9 Hare, 618.

265

Purchaser's remedy against the Seiler. ment of the contract by delivery of the goods, and damages for withholding delivery. If specific goods are sold, and in the possession of the vendor, the vendee may bring an action ad factum præestandum to enforce delivery.

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. 6. The seller may sue the purchaser for the price and interest, whether the goods sold are specific or not, provided goods according to the contract have been tendered to the purchaser.

Sale before Diligence against Seller.

7. After contract of sale and before delivery, whether the goods have or have not been paid for by the buyer, they may be taken in execution by a creditor of the seller, and such diligence gives the creditor a right to have the goods sold for his benefit.

If the seller becomes bankrupt before delivery, the goods belong to the trustee for the general body of the seller's creditors, and the buyer is merely a creditor for the price, or so much of it as he may have advanced, and for damages, in so far as he may have sustained loss by not having implement of the contract.

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Measure of damages for non-fulfilment of Con- Measure of damages for non-fulfilment of Con

tract by Seller to deliver.

11. The value of the thing bought at the time at which the delivery should have taken place can, in general, alone be regarded, and the purchaser is not entitled to compensation

tract by Seller to deliver.

11. The value of the thing between the time at which the delivery should have taken place, and the time of trial may, in general, be taken into consideration in assessing the compensa

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