264 Differences in the Mercantile Laws of England, Ireland, and Scotland. And of those in which nothing remains to be done, except passing receivers' accounts: W. H. Tinney, Esq. J. E. Blunt, Esq. Joseph Humphry, Esq. 118 122 62 512 DIFFERENCES IN THE MERCANTILE LAWS OF ENGLAND, IRELAND, AND SCOTLAND. England and Ireland. Scotland. 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 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 acci dents 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, 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 puTMchaser, 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. Sale after Diligence against Seller. 8. The issuing of a precept of poinding and the execution of a charge for payment, until followed by an execution of poinding, do not prevent a sale of goods by the debtor. Warranty. 9. There is an implied warranty on the part of the seller, that the thing sold will be fit for the purpose for which the seller knows that it was 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. 10. The seller must give notice of his intention to employ a person to bid on his behalf. 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 266 Differences in Mercantile Laws.-Enfranchisement of Copyholds. 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. with reference to a subsequent rise in the value. tion to the purchaser. Dunlop v. Higgins, 6 Shaw v. Holland, 15 M. & W. 136; Westropp Bell's App. 195; 1 H. L. C. 381. v. Solomon, 8 C. B. 345. See p. 373. Distress. 12. Landlord's right of distress attaches only after the rent has become due. Sale of Stolen Goods. 13. Sale in market overt of stolen goods gives the purchaser an absolute right against the true owner, until the latter has prosecuted the thief to conviction. Payment of Price. 14. May be proved by oral evidence only. ENFRANCHISEMENT OF COPY HOLDS. MANOR OF KENNINGTON. To the Editor of the Legal Observer. SIR,-Having only just seen the letter of "R. L." in the last Number of the Legal Observer, I am obliged to reply to it as briefly as possible, in order to have a chance of my reply appearing in your next Number. The main question is, whether the copyholders attempt to deprive the lord of a portion of the rights to which he is entitled-it not being disputed that the copyholders took their property subject to the lord's rights, and that they had ample means of knowing the extent of such rights. and thus obtained, as even admitted by "R. L.," a far different rent than that which would have been paid, had he granted a lease subject to the lord's rights. "R. L." seems to think that a lease granted subject to such rights, would not be taken by a builder; but, with most men of business, no difficulty would arise, as it would be easy to calculate the expense of effecting an insurance to cover the expense of admission, after the land was built on; and the builder, with such a contract, instead of getting a worse, might, and probably would, get a better bargain. To take the case mentioned by "R. L.," of land worth 17. a year, and when built on worth 100l. a year. If the life on the rolls was young, an insu rance might be effected on that life, or as the It appears from the petition, and from " R. fine on admission of two lives would be but 3h, L.'s" letter, that the copyholders seek to regu- or of three lives but 3l. 10s., and the expense late the amount of the lord's fines, by the rent of admission to the land would be but trifling, paid to the copyholder, and not by the value a surrender might be made to trustees, and of the property at the time the fines become a policy assuring 2001. for the fine, effected payable. payable on the death of the longer or longest liver. Now, if the lord be entitled to the ordinary fine of two years' improved value, and the rent The annual premium would be but small, is as stated, materially less than the im- but would of course reduce the rent payable proved value; the object of the copyholders, if to the copyholder by its amount, as with justice attained, would deprive the lord of a material it should do, as he would have no more right portion of his rights. to a rent arising in respect of the lord's interest, than a leaseholder would have to expect the full value of the property without paying the ground rent. If the lord be not so entitled, the remedy of the copyholders is very simple. Let them refuse to pay the fines based on the improved value and tender the fines on what they contend is the just estimate; and if the lord be not entitled to the larger fines, his claim will be unsuccessful. On the other hand, if the lord be so entitled, it appears to be clearly unjust, as a matter of business, to require him to accept less than the value of his interest, because the copyholder has chosen to deal with his own interest in the property, as if that of the lord had not existed; The matter stands simply thus :-A. and B. have separate interests in property; each has a right to do what he pleases with his own interest, but not to affect that of the other party, and if it be desirable that B. should have the power to enfranchise his interest from the claim of A, he ought to pay the value of A.'s interest. Should that interest operate so as to cause B. a greater loss than the actual value of A.'s Enfranchisement of Copyholds.-Selections from Correspondence. interest, so far from its being an argument that B. should pay less than the actual value to A., it would, in the minds of most men, and especially of gentlemen of 50 years' practice in the law, be rather an argument for A. requiring somewhat more than the actual value of his interest, rather than that B. should purchase it for less than the actual value. 267 copyholder grants a building lease for a term of say 71 years, in a case where the licence to demise only enables him to grant for 70. In another case, the tenant inadvertently grants a building lease for the term of 70 years, when in fact 20 years of that term, as limited by the licence, has expired. In both cases, it is contended on behalf of the lord that the leases are My acquaintance with copyholds has not ex-void, and that the lord is entitled to fines comtended to nearly half a century, but has ex-puted on the full rack-rent-to the entire deceeded thirty years, and I must tell "R. L." that I know the difference between copyholds of inheritance and copyholds for lives, and that he is mistaken in supposing that I referred to the latter. It is clear from his remarks as to life interests, and the alleged difficulty of arrangements between a builder and copyholder, so as to preserve the lord's rights, that he has paid but little attention to mathematical questions in relation to partial interests in property, which in questions between lord and copyholder, are fully as important as the mere legal consideration of the matter. I hope that if "R. L." should again write to the Legal Observer, he will write in good humour, and if so I will take care to do the struction of the property of the copyholder. Would it not therefore be right to abolish the necessity for such licences to demise without prejudice to the lord's compensation for granting them, and to enact that, notwithstanding the irregularity, the leases shall be valid, and that the lord shall only be entitled to fines calculated on the actual ground-rent, provided that rent was a bona fide one, and 'such as could be reasonably obtained at the time of letting the land? Without some such enac ment, it is difficult to see how the copyholder can be considered as the owner of his own property. How much useless and ruinous litigation would have been spared, is manifested in the report of the case of Freeman v. Freeman, before the Lords Justices, had the absurd restriction as to the necessity of surrendering copyholds to the use of a will been abolished at the time of the devise in that case in 1807. Fortunately, by the Act of 1815, a copyholder can now devise his copyholds without a previous surrender. ONE, &C. THE LAW UNION INSURANCE COMPANY. recent city fire. Such of your subscribers as It cannot be denied that there is a general prejudice in the public mind against attorneys. The disreputable attorneys are so few that they cannot by their malpractices create it. Whence then does it arise? This is the true source: -The plaintiff and defendant are, of course, not exceed 501. enemies, and they consequently denounce each other's attorney as a rogue, and ready to prosecute and defend any injustice. The plaintiff says the defendant and his attorney are rogues for resisting his just demand; and the defendant and his attorney say that the plaintiff and his attorney are great rogues for prosecuting so iniquitous a demand. H. CORPORATION LAND.-DISSOLUTION. A. conveys freeholds to the use of a corporation. The corporation is dissolved. To whom, in that event, does the land belong? FINE. DELTA. UNQUALIFIED CONVEYANCERS. D. Geo. 3, c. 98, s. 14, prohibits all persons from A Correspondent is informed that the 44 preparing conveyances or deeds relating to any real or personal estate, other than barristers, solicitors, attorneys, notaries, or proctors, having obtained regular certificates, and special pleaders, draftsmen in equity, and conveyancers, being members of one of the four Inns of Court and having taken out certificates. The person referred to does not appear to be liable to any penalty. LEGAL HALF-HOLIDAY ON SATURDAYS. A memorial signed by 234 of the principal LEASES OF COPYHOLD LAND.-LICENCE.- firms of solicitors in London, has been presented to the Council of the Incorporated Law Society, suggesting an application to the The Legislature has from time to time done Judges to sanction the closing of all legal much to give efficacy to the right of a copy- business at two o'clock on Saturdays. The holder to deal with his copyhold as he may Council concur in the propriety of the sug think fit, but much remains to be done with- gestion, and will take steps for carrying it out any injury to the rights of the lord. I E. L. Ö. would instance a case of great hardship. The into effect. 268 Attorneys to be Admitted. ATTORNEYS TO BE ADMITTED. Michaelmas Term, 1854. Queen's Bench. Clerks' Names and Residences. Armstrong, James, 61, Herbert-street, Hoxton ; and Newcastle-upon-Tyne Atchison, John Simons, Walthamstow Bartleet, William Smith, Stourbridge Bassett, James, 10, Warwick-court, Gray's-inn; Batchelor, George Beetham, 113, New Bond-st. Bell, Edward Samuel, Stockwell-green. Bridger, William, 18, Southampton-st., Pentonville Burdekin, Benjamin, jun., 8, Storr-st., Bedford-sq. Burton, Henry Augustus, 2, Regent-place, West, Regent-square; and Lincoln. Cayley, George, 16, Albert-ter.; Great Ormondstreet; Great James-st.; Stamford; Putney Cheadle, George, 4, Lower Calthorpe-st., Gray's inn-road Chorley, Thos. Fearncombe, 9, Cottage-pl., Cityroad; and Taunton Cobb, Wm. Henry, 1, Gordon-place, Tavistock square; and York Coode, Frederick, 20, Chadwell-st., Myddleton square; and Launceston Coulcher, Cooper, 5, Albert-terrace, Islington; Cousins, Thomas, jun., Portsea Craven, Abraham, 12, Compton-st. East, Bruns wick-square; and York. Crawford, Thomas, North Shields. Dickin, Thomas Parkes, Ludlow; and Bilston Drabwell, John, 38, Edward-street, Hampsteadroad; and Huddersfield. Druce, Henry, 5, Mecklenburgh-street; Hunterstreet and Tenbury Edwards, Charles Hugh, Birmingham Elgood, William, 97, Wimpole-street; John-st.; and Newport. Emmet, Charles, Halifax Falcon, Michael, 41, Bedford-row; Wirkington; and Shrewsbury Farnfield, William, Woolwich Fellows, Arthur, Hampstead; Park-ter.; Guild ford-street; and Wolverhampton Fisher, Thomas, The Rectory, Higham; and Ashby-de-la-Zouch French, Beal Frederick, Stepney-green. Fryer, William Henry, B.A., Coleford . Gamble, George, jun., 55, Regent's-circus; and Carlisle. Gardener, Richard, 4, Cloudesley-square, Islington; and Banbury. Gaskell, Samuel, 35, Islington-terrace; Park-road;" and Wigan Greatback, Frederick Daniel, 2, Crescent-place, Mornington-crescent J. C. Laycock, Huddersfield : W. W. How, Shrewsbury;. C. Falcon, Liverpool G. Fry, Mark-lane J. Hawksford, Wolverhampton E. Fisher, Ashby-de-la-Zouch; F. J. Wood, Hinckley G. Marten, Mincing-lane H. H. Fryer, Coleford; C. B. Dryden, Lincoln'sinn-fields |