the logical expression of the practice and customs of merchants, traders, factors, and mercantile agents generally, aided and regulated by and derived from a long series of judicial decisions, and incorporates the few express enactments of the Legislature which have dealt with the subject of the sale of goods. For a trade custom to have the force of law it must be of immemorial usage and founded upon principles of justice. Mr. Justice Willes said, in Cox v. Mayor, &c., of London,1 that "a custom originating within time of memory, or an unreasonable custom, even though existing in fact, is void in law;" and quoted Lord Holt's dictum,2 "Customs that overthrow principles of law and which are unreasonable are to be rejected." Statutes confirming customs "do not establish those which would not of themselves have stood the test of law as being ancient and reasonable," but only make up for defects; and those customs which are confirmed by the present Act have already been confirmed as reasonable by judicial authority, e.g., see sec. 21 (4), and the decisions in Johnson v. Raylton, and Gunn v. Bolckow, Vaughan & Co.5 With this may be compared

1 L. R. 2 H. L. 258.

2 Ib. 258.

3 Ib. 257.

+ 7 Q. B. D. 438; 50 L. J. Q. B. 753; 45 L. T. 374. [1881.]

3

5 10 Ch. App. 491; 44 L. J. Ch. 732; 32 L. T. 781; 23 W. R. 739.

[1875.]

the words of Lord Esher, M.R., in Pandorf v. Hamilton':-"Where documents are in daily use in mercantile affairs, without any substantial difference in form from time to time, it is most material that the construction which was given to them years ago, and which has from time to time been accepted in the Courts of law, and in the mercantile world, should not be in the least altered, because all subsequent contracts have been made on the faith of the decisions. Therefore whether one thinks that one would of oneself have come to the same conclusion as the judges did in the beginning is immaterial. One ought to adhere

e pract, we connection between the law

of sale and the Factors Acts is defined, and in order to avoid any ambiguity or controversy, and to complete the code as far as practicable, the provisions of the 8th and 9th sections of the Factors Act, 1889, the Statute of Frauds, and Lord Tenterden's Act (so far as these relate to the subject), are incorporated almost in their original form. The law of Market Overt is included unchanged, though unfortunately without

117 Q. B. D. 674.

any

definition of the term, although there appeared at one time a probability that the special protection afforded to a sale under those conditions would be abolished in England and Ireland. Touching this point, and with special reference to section 100 of the Larceny Act, 1865, it is to be observed that the present Act overrides the decision of the House of Lords in the well-known case of Bentley v. Vilmont, and it is to be presumed that this alteration was made, not only to meet the views of commercial men, but also out of deference to the strongly expressed opinion of Lord Watson in that case, that it was inevitable that an innocent buyer who happened to buy from a cheat, should lose both his money and his goods upon the conviction of the wrongdoer (v. section 24 (2)).

It is further to be observed that the 22nd section of the Act, relating to the effect of sales in market overt, does not apply to the sale of horses, so that the Acts of 2 & 3 Phil. & M., and of 31 Eliz. remain unaffected by it. The Act also deals with sales by auction.

It may be well to take notice of certain respects in which the Act, while dealing substantially with the law of sale existing in the whole of the United Kingdom, leaves unaffected certain peculiar pro

112 App. Ca. 471; 57 L. J. Q. B. 18; 57 L. T. 854. [1887.]

visions of the Scotch law. These come mainly under eight heads.

(1.) The Statute of Frauds as amended by Lord Tenterden's Act does not extend to Scotland, and accordingly section 4 of the present Act is declared not to apply to Scotland.

(2.) In Scotland the property in goods sold does not pass until delivery and not, as in England, as soon as the parties intend it to pass, whether the goods be delivered or not. Lord Blackburn has, however, pointed out that since the 19 & 20 Vict. c. 60, this distinction is of much less importance, for whenever the property would pass in England, the buyer in Scotland acquires a jus ad rem, though not a jus in rem, the goods remaining at the buyer's risk, and not being liable to attachment by the seller's creditors. M'Bain v. Wallace.1

(3.) In Scotland certain stipulations are treated as conditions (breach of which entitles the buyer to rescind the contract), which in England would be treated as warranties, breach of which would give rise to an action for damages only. This is expressly provided for in section 11 (4) of the present Act.

(4.) In England or Ireland, where goods are ordered from a manufacturer, there is an implied

16 App. Ca. 588; 45 L. T. 261; 30 W. R. 65. [1881.]

warranty that the goods shall be of his own make. In Scotland there is no such implied warranty.

(5.) The English rule as to the effect of sales in market overt does not apply to Scotland, and accordingly we find a saving clause to that effect in section 22 (2).

(6.) The rules as to ordinary and special damages differ in the two countries.

(7.) The seller's lien under the Scotch law is specially provided for by section 40 of the present Act.

(8.) The 26th section of the present Act, dealing with the effect of writs of execution upon goods as from the time when the writ is delivered to the sheriff for execution, does not apply to Scotland.

With regard to the terms employed in the Act, it is to be observed that the words "seller" and 'buyer" are used instead of "vendor and

66

purchaser" respectively; and the words "sale" and "agreement to sell" are used instead of "executed" and "executory contract of sale" respectively.