Price directed post. If the buyer is directed to send the price by Post, or if to be sent by it has been the usual practice between the parties, to do so (i), and the letter containing the money properly directed () and posted () is lost, the debt is extinguished, and the seller must bear the loss (1). Post-office order. Forged bank note. Dishonoured bill. Halves of bank notes. Where the defendant, in answer to a letter demanding payment, sent a Post-Office Order, in which the plaintiff was described by a wrong christian name, and the plaintiff kept it, but did not cash it, although he was informed at the Post Office he might receive the money at any time by signing it in the name of the payee, it was held by the Court of Exchequer that this was no evidence of payment (m). If payment be made in forged Bank of England notes, it may be treated as a nullity, and an action be maintained by the creditor against the debtor for the money (n). Where there is a sale of specific chattels, and a bill is given in payment, though the vendor has then lost his lien in the strict sense of the word, yet, if afterwards an insolvency happens, and the bill is dishonoured, then the vendor has a right somewhat analogous to that which a vendor has over goods in transitu, and if they are still in his hands, he has a right to withhold the delivery of the goods (0). If payment is made by halves of Bank notes, no property in them passes to the payee, till the other halves are sent (p); and therefore it would seem that such an inchoate payment will be no payment within the Statute of Frauds. Writing off If a creditor employs an agent to receive money from debt by agent a debtor, and the agent, instead of so doing, writes off a to agent. debt due from himself to the debtor, his debtor is not thereby discharged, unless indeed there is a subsequent ratification by the creditor of the act of his agent (). Banker's cheque. If a creditor is offered cash in payment of his debt, or a cheque upon a Banker from an agent of his debtor, and he prefers the latter, this does not discharge the debtor if the cheque be dishonoured; although the agent fails (i) Warwicke v. Noakes, Peake, N. P. 98. (j) Walter v. Haynes, R. & M. 149. (k) Hawkins v. Rutt, Peake, N. P. 248. (1) Kington v. Kington, 11 M. & W. 233. (m) Gordon v. Strange, 1 Ex. 477. (n) See Chit. Contr. 10th ed. 681. (0) Per Crompton, J., Griffiths v. Perry, 28 L. J., Q. B. 204. (p) Smith v. Mundy, 29 L. J., Q. B. 172. (4) Underwood v. Nichols, 25 L. J., C. P. 79. with a balance of his principal in his hands to a larger amount (r). The creditor must, however, present the cheque within a reasonable time (s). If a creditor prefers a Bill of Exchange accepted by a Bill of exstranger to ready money from his debtor, he must abide change. the hazard of the security he takes (†). By the order of the creditor, a debt may be paid to a Debt paid to third party, who, if he take payment in any other way a third party. than in money, or if he give the debtor further time, without the knowledge of the creditor, he does it at his peril (u). SUNDAY DEALING. By a law of King Athelstan, all "merchandizing on Law of King the Lord's Day" is prohibited, and it is thus laid down: Athelstan. "Die autem Dominico nemo mercaturam facito; id quod si quis egerit, et ipsa merce, et 30 præterea solidis mulc tator" (x). And by 29 Car. 2, c. 7, s. 1, which is "An Act for Statute of the better Observation of the Lord's Day," it is enacted, Charles 2. "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 every person being of the age of fourteen years or upwards offending in the premises shall for every such offence forfeit the sum of 58.; and that no person or persons whatsoever shall publicly cry, show 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 showed forth, or exposed to sale." By the 34 & 35 Vict. e. 87 (continued by the Expiring Laws Continuance Act), s. 1, no prosecution or other proceeding shall be instituted for the contravention of this Act, but with the consent in writing of the chief officer of the police of the police district in which the offence is committed, or of two justices of the peace, or of the (r) Everett v. Collins, 2 Camp. 515; see Stuckfield v. Hind, ante, p. 31. (8) Hopkins v. Ware, L. R., 4 Ex. 268; 38 L. J., Ex. 147. (t) See per Lord Ellenborough, (u) Smith v. Ferrand, 7 B. & C. Farmers not within statute. Sale by a stipendiary magistrate having jurisdiction in the place where such offence is committed. A farmer has been held not to be within section 1 of the 29 Car. 2, c. 7, on the ground that he is not "a tradesman, artificer, workman, or ejusdem generis with any of these" (y). A Horsedealer cannot maintain an action upon a conHorsedealer. tract for the sale and warranty of a Horse made by him upon a Sunday. The law on this subject was laid down by the Court of King's Bench in Fennell v. Ridler (≈) on a motion for a new trial, and Mr. Justice Bayley delivered the following judgment: "This was an action upon the warranty of a Horse. The plaintiffs were Horsedealers, and the Horse was bought and the warranty given on a Sunday; and the only question was, whether, under the 29 Car. 2, c. 7, the purchase was illegal, and the plaintiffs precluded from maintaining the action. That the purchase of a Horse by a Horsedealer is an exercise of the business of his ordinary calling no one can doubt. The act does not apply to all persons, but to such only as have some ordinary calling. In Drury v. De la Fontaine (a) Lord Mansfield, C. J. (after the Court had taken time to consider), laid it down, that if any man in the exercise of his ordinary calling make a contract on a Sunday, that contract would be void (and the case before him was a private contract for the purchase of a Horse), but he showed that that case was not within the statute, because no one of the parties was in the exercise of the business of his ordinary calling. His expression, that the contract would be void, probably meant only that it would be void so as to prevent a party who was privy to what made it illegal from suing upon it in a Court of law, but not so as to defeat a claim upon it by an innocent party; and so it was considered by this Court in Bloxsome v. Williams" (b). By an ordinary person. Subsequent ratification of a contract. Where neither parties are Horsedealers, a contract between them for the sale of a Horse is good, though made on Sunday; and this was recognized by Mr. Justice Bayley in the last case, as having been distinctly laid down by Lord Mansfield in Drury v. De la Fontaine. Where a bargain for some cattle was made, and the price agreed on, on a Saturday evening, subject to the defendant's approval of the beasts upon inspection next (y) R. v. Silvester, 33 L. J., M. C. 79. (z) Fennell and another v. Ridler, 5 B. & C. 406. (a) Drury v. De la Fontaine, 3 B. & C. 232; but see per Parke, J., Smith v. Sparrow, 4 Bing. 88. (b) Bloxsome V. Williams, Taunt. 135; S. C. 3 B. & C. 232. 1 morning; and accordingly on Sunday the defendant inspected and approved them, and afterwards kept them for some time and promised to pay for them; it was held, that although the original contract was on Sunday, yet as they continued in the possession of the defendant, who afterwards promised to pay for them, this subsequent promise was sufficient on a quantum meruit, or as a ratification of the agreement of the Saturday (c). But a party cannot sue on a breach of warranty if he Breach of take it on a Sunday from a person he knows to be a Horse- warranty dealer. However, where an innocent party brings an Sunday. given on a action on the breach of a warranty given to him by a Horsedealer on a Sunday, it is not competent for the defendant to set up his own breach of the law as an answer to the action; and this was so held in the case of Bloxsome v. Williams (d), where an action was brought on the warranty of a Horse, and an objection was taken that it had been given on a Sunday. It appeared that the defendant was a coach proprietor and Horsedealer, and that the plaintiff's son was travelling on a Sunday in the defendant's coach, and while the Horses were changing he made a verbal bargain with the defendant for the Horse in question, for the price of thirty-nine guineas; the latter warranted the Horse to be sound, and not more than seven years old. The Horse was delivered to the plaintiff on the following Tuesday, and the price was then paid; there was nothing in evidence to show that the plaintiff's son knew at the time when he made the bargain that the defendant exercised the trade of a Horsedealer. The Horse was unsound, and seventeen years old. It was objected, on the part of the defendant, that the plaintiff could not recover, on the ground that the bargain having been made on a Sunday was void within the 29 Car. 2, c. 7, s. 2. The learned judge overruled the objection, and the plaintiff obtained a verdict for the price of the Horse. The Court of King's Bench discharged a rule for a new trial, and Mr. Justice Bayley said, "In this case there was no note in writing of the bargain, and on the Sunday all rested in parol, and nothing was done to bind the bargain. The contract, therefore, was not valid until the Horse was delivered to and accepted by the defendant. The terms on which the sale was afterwards to take place were only specified on the Sunday, and those terms were incorporated in the sale made on the subsequent day." (c) Williams v. Paul, 6 Bing. 653. (d) See note (b), ante. Definition of A Horsedealer, strictly, is a person who by his traffic "distributes" Horses (a). And by 29 Geo. 3, c. 49, s. 5, he a Horse dealer. A seller on is clearly defined to be a person who "seeks his living by buying and selling Horses" (a). It has not however been decided, whether a person who, Commission. for Commission, sells by auction or private contract the (a) Allen v. Sharp, 2 Exch. 357. |