PART III. of the House of Lords in the Scotch case of Bruce v. Ross, 14 April, 1788, affirming the decision of the Scotch Court in conformity with the civil law, and the practice of other countries adopting the civil law, might be considered as overruling the decisions of inferior Courts in England. The subject is now in England regulated by statute, 8 & 9 Vict. c. 109, s. 18, which enacts that "all contracts or agreements, whether by parole or in writing, by way of gaming or wagering, shall be null and void and that no suit shall be brought or maintained in any Court of Law or Equity for recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any persons to abide the event on which any wager shall have been made: provided always, that this enactment shall not be deemed to apply to any subscription or contribution, or agreement to subscribe or contribute for or toward any plate, prize, or sum of money to be awarded to the winner or winners of any lawful game, sport, pastime, or exercise." It has been decided that a contract for sale and purchase of shares where neither party intends to deliver and accept the shares, but only to pay differences, is a mere wager and void within this section (Grizewood v. Blane, 11 C. B. 526), and so in any case where the contract is merely colourable and what is really intended is a wager (Rourke v. Short, 5 E. & B. 904). But the contract between a broker on the London Stock Exchange and the client who employs him to speculate is different. For although it was expected and intended by both that the transactions should result merely in the payment of differences: yet the result being that the broker was involved in real contracts on which, according to the rules of the Stock Exchange, he was personally liable: he was held entitled to recover from the client in an action for indemnity, and for his commission (Thacker v. Hardy, 4 Q. B. D. 685). The statute does not make the wager illegal, and, therefore, a partner or employer of an agent in betting transactions can recover his share of winnings from the other (Johnson v. Lawley, 12 C. B. 461; Buston v. Buston, 1 Ex. D. 13): and one who has paid money at the request of another, for the settlement of losses on wagering transactions, is entitled to repayment, the request forming a good consideration (Knight v. Cambus, 15 C. B. 562; Knight v. Fitch, 15 C. B. 566; Jessop v. Lutwyche, 11 Ex. 614). And after some variance of opinion in the Courts of First Instance, it is now settled law that a deposit of stakes by one of the parties to a match may be recovered back on demand from the stakeholder as upon a void contract (Hampden v. Walsh, 1 Q. B. D. 189; Diggle v. Higgs, 2 Ex. D. 422, and Trimble v. Hill, 5 App. Ca. 342; Batson v. Newman, 1 C. P. D. 573). These cases overrule Batty v. Marriott, 5 C. B. 818. PART III. In England the law against Sunday trading rests on the Sunday trading statute 29 Car. II. c. 7, which enacts (sect. 1) that "no tradesman, artificer, workman, labourer, or other person whatsoever, shall do or exercise any worldly labour, business, or work of their ordinary callings, upon the Lord's day, or any part thereof (works of necessity and charity only excepted); and that every person being of the age of fourteen years or upwards, offending in the premises, shall for every such offence forfeit the sum of five shillings; and that no person or persons whatsoever, shall publickly cry, shew forth or expose to sale, any wares, merchandizes, fruit, herbs, goods or chattels whatsoever, upon the Lord's day, or any part thereof, upon pain that every person so offending shall forfeit the same goods so cried or shewed forth or exposed to sale." The reported decisions under the statute are not numerous:In Drury v. Defontaine (1808), 1 Taunt. 131, a sale of a horse on Sunday by private bargain by a person whose calling was said to be that of a horse auctioneer, was held not contrary to the statute. Doubts have been thrown on this decision in the subsequent cases of Fennell v. Ridler and Smith v. Sparrow cited below. In the latter case it was suggested by Park, J., that the sale, if not within the "ordinary calling," might have been void within the statute as "worldly labour." There can be no doubt, however, on the general tenor of the decisions, that the words in the statute "of their ordinary calling" must be read in connection with all the previous expressions, "worldly labour, business or work," and this is assumed in the judgment in the leading case of Fennell v. Ridler. The real absurdity of Drury v. Defontaine consists in the classing of the business of PART III. horse auctioneer as a calling distinct from that of a person selling horses by private contract. The case of Fennell v. Ridler (1826), 5 B. & Cr. 406, was also a case of horse dealing. The judgment of the Court, delivered by Bailey, J., corrected a doubt expressed by him in Bloxome v. Williams whether the "business" referred to in the statute must not be something of the nature of manual labour, and established the principle that the statute must be liberally construed according to its spirit, and as including every species of labour, business, or work, whether public or private, in the ordinary calling of the doer of it. Bloxome v. Williams (1824), 3 B. & Cr. 406, was an action on a warranty on the sale of a horse: and the grounds of decisions were 1st, that, although there was a verbal bargain on the Sunday there was nothing to make it binding under the Statute of Frauds until the following Tuesday when the horse was delivered, and the contract was therefore not completed on the Sunday so as to come within the statute; and 2ndly, that the defendant (the vendor) was not known by the buyer to be a horsedealer, and was therefore not entitled to set up the wrong which was solely his, against the "innocent" bargainer. If goods are delivered under a contract of sale made on Sunday, as in the case of any other illegal sale, the contract is executed and the property passed; and on the maxim in pari delicto potior est conditio possidentis, the vendor can recover neither the goods nor the price. It seems also the better opinion (though contrary to the decision in Williams v. Paul, 6 Bing. 653), that a subsequent promise to pay for the goods so delivered is without any consideration so as to ground any legal obligation (per Parke, B., in Simpson v. Nicholls, 3 M. & W. 244, as corrected by subsequent report, 5 M. & W. 702; the same in Scarfe v. Morgan, 4 M. & W. 270, 281.). The case of Scarfe v. Morgan, 4 M. & W. 270, was that of a mare sent to be covered on Sunday, and the question arose out of a claim of lien made by the defendant for the price of that and other similar services. It was held that (whether the transaction was lawfully entered into or not, and assuming that the legal effect of such a contract, if lawfully made, was to give a lien) the contract being executed the special property passed and the lien attached. PART IV. THE STATUTORY REQUISITES. THE 17TH SECTION This section is as follows:-" AND BE IT FURTHER ENACTED BY THE AUTHORITY AFORESAID, THAT FROM AND AFTER THE SAID FOUR-AND-TWENTIETH DAY OF JUNE (1677), NO CONTRACT FOR THE SALE OF ANY GOODS, WARES, AND MERCHANDIZES, FOR THE PRICE OF TEN POUNDS STERLING OR UPWARDS, SHALL BE ALLOWED TO BE GOOD EXCEPT THE BUYER SHALL ACCEPT PART OF THE GOODS SO SOLD, AND ACTUALLY RECEIVE THE SAME, OR GIVE SOMETHING IN EARNEST TO BIND THE BARGAIN, OR IN PART OF PAYMENT, OR THAT SOME NOTE OR MEMORANDUM IN WRITING OF THE SAID BARGAIN BE MADE AND SIGNED BY THE PARTIES TO BE CHARGED BY SUCH A CONTRACT, OR THEIR AGENTS THEREUNTO LAWFULLY AUTHORISED." In this part of the work I shall consider first, to what contracts the statute applies; and secondly, the requirements of the statute, namely, (A.) acceptance and actual receipt, (B.) earnest, (c.) the note or memorandum in writing. PART IV. § 1. SECTION 1.-TO WHAT CONTRACTS DOES THE STATUTE APPLY. What are "goods, wares, and merchan GOODS, WARES, AND MERCHANDIZES.-The words "goods, wares, and merchandizes," within this enactment, apply to all goods' as above defined (p. 3), i.e., to every species of tangible dizes." chattel not being a ship. With regard to ships it has been the custom in England from a very early period to deal with the property by written documents (Bell's Commentaries, ed. Shaw, 1 Blackburn on Sale, pp. 3, 6. PART IV. § 1. Res incorporales not. Emblements, tenants' fixtures, quære? 371), and this probably has made it unnecessary to consider whether or not they come within the Statute of Frauds. There seems, however, no doubt that an executory contract for building a ship, is under this statute and Lord Tenterden's Act, to be presently cited, a sale of goods, &c., within these enactments. The words "goods, wares, and merchandizes," do not comprise any species of intangible property (res incorporales), such as shares in a railway company' (Duncuft v. Albrecht, 12 Sim. 189; Tempest v. Kilner, 3 C. B. 249; Bowlby v. Bell, 3 C. B. 284; 16 L. J. C. P. 18); in a banking joint stock company (Humble v. Mitchell, 11 A. & E. 205); in a mining company (Watson v. Spratley, 10 Ex. 222; 24 L. J. Ex. 53); Spanish bonds to bearer (Heseltine v. Siggers, 1 Ex. 869; 18 L. J. 166); scrip (Knight v. Barber, 16 M. & W. 70);—these being all mere choses in action legal or equitable. Whether or not these words "goods, wares, and merchandize" comprise emblements, or tenants' fixtures (so far as relates to the tenant's right to seize and take them away), is a question involved in some difficulties. To clear the points from confusion I must revert to the distinction (see p. 2, supra) between an executory and an executed contract. An agreement to transfer the property in something that is attached to the soil at the time of agreement, but is to be severed from the soil and become goods before the property is transferred, is an executory contract for the sale of goods. Such a contract, if not within the original Statute of Frauds, is clearly within the statute as extended by Lord Tenterden's Act, to be presently mentioned (p. 162, infra). Under such a contract it is unimportant for the purposes of the statute, to consider whether the thing while remaining attached to the soil comes under the word " goods" or not. But when the agreement is that the property is to be transferred before the thing is severed, there is a question whether there is a contract 1 It is also decided that shares in a railway company are not an interest in land within the 4th section of the statute. (Duncuft v. Albrecht, supra; Bradley v. Holdsworth, 3 M. & W. 422). |