DRAFT-continued. any law or usage to the contrary notwithstanding. Provided that this Act shall not extend to such actions or suits, which shall or may be grounded upon contracts or agreements for wares sold, or money lent, or upon any quantum meruit, or any other assumpsits, or promises which are created by the construction or operation of law: But that all and every such actions shall and may be sued and prosecuted in such manner as the same might have been before the making of this Act, anything herein before to the contrary notwithstanding."-(Ninth Report of Hist. Manu. Com., part ii. p. 48.) STATUTE-continued. sale of lands, tenements, or heredita- Sect. 17.1 And be it further It thus appears that Chief-Justice North (Lord Guilford) is responsible for the drafting of the Statute of Frauds, and that, beyond the original conception of rendering writing a legal essential in particular circumstances, the share of Lord Nottingham in the work was comparatively small. Nottingham's original proposal seems to have been to limit to a certain specified amount the damages to be recovered for breach of a "simple contract' (ie. a contract not established by deed under seal) unless a written memorandum of the bargain had been previously agreed upon between the parties. He did not suggest signature as a requirement, his only object being to secure that each party was dealing with the same subject-matter. The fact of the agreement might still be proved parole, but it was supposed to take away any temptation to perjury if the terms of the bargain were put 1 See footnote previous page. 2 2 Simple contracts, even where writing is required for their proof, are still called verbal contracts, as distinguished from contracts of record, and contracts by deed under seal. STATUTE OF STATUTE OF into definite written language. It is further to be observed that Lord Nottingham's proposal expressly excluded the contract of sale, which was still to remain as free as before. But the suggestions of Chief-Justice North, which are now the law of England,1 were very different in their character. The Act, as framed by him, provides that the memorandum must be signed, and, so far from sale being excluded from the operation of the statute, it is made the special subject of the 17th section, which has been the cause of enormous litigation, and is now almost universally condemned. Without venturing to assert that Lord Nottingham's proposal was in every respect satisfactory, it may at least be claimed for its author that he embodied a philosophical conception without the serious blemish which has caused the 17th section of the statute to be practically ignored in every large commercial centre. 3 The foregoing facts clear away the mists so long surrounding the history and authorship of the Statute of Frauds. From first to last there is not the slightest trace of the draftsmanship, or even of the influence, of Lord Hale, and it may be suggested to the text writers who still associate his name with its construction that in future editions such passages should be revised.* Although the 17th (16th) section of the Statute of Frauds is now repealed by the Sale of Goods Act, its substance is re-enacted by Sect. 4 of that Act. See ante, p. 27. 2 Now Sect. 4 of the Sale of Goods Act. 3 The result is in accordance with the character of the respective draftsmen. Lord Campbell's estimate was formed without reference to the Statute of Frauds, and without knowing anything of Chief-Justice North's share in this particular work, yet he thus describes the general character of the two men. Of Chief-Justice North (Lord-Keeper Guilford) he says: "He was sharp and shrewd, but of no imagination, of no depth, of no grasp of intellect, any more than generosity of sentiment. Cunning, industry, and opportunity may make such a man at any time. A Nottingham does not arise above once in a century. Guilford had as much law as he could contain, but he was incapable of taking an enlarged and commanding view of any subject." -Lives of the Chancellors, iii. 489. See, for example, the following:-" STATUTE OF FRAUDS.-This famous statute is said to have been framed by Sir Matthew Hale, Lord-Keeper Guilford, and Sir Leoline Jenkins, an eminent civilian. Lord Nottingham used to say of it that every line was worth a subsidy, and it has been said that at all events the explanation of every line has cost a subsidy, no statute having been the subject of so much litigation."-Wharton's Law Lexicon, 9th ed. 1892. "This celebrated statute we owe to the great lawyer, but indifferent statesman, Lord Nottingham, who appears to have been assisted in framing it by Sir Leoline Jenkins and Lord Hale."-Taylor on Evidence, 8th ed. (1885), p. 853. under Sect. 4 (substituted for Statute of Frauds), 25, 169. of bill of exchange, 98. duty of buyer to accept, 129, 176. where notice of place of, required, 130. if buyer accepts wrong quantity must pay at contract rate, 140. of wrong quantity is new contract, 141. buyer to have opportunity of examining goods prior to, 166. what acceptance implies, 167. differs from receipt, 167, 169. circumstances inferring, or negative of acceptance, 168, 170. negation of duty of, equals right of rejection, 171. in England precludes subsequent return of goods, 171. in Scotland not inconsistent with subsequent return of goods, 171. where rightly refused buyer not bound to return goods, 172. by carrier to buyer of custody on his behalf ends transit, 209. ACTION, defined, 283. in England for goods “sold and delivered,” 192. conditions under which, may be maintained, 234. where competent for price though property has not passed, 234. ACTION-continued. seller's rights of, where property has not passed, 238. form of, in respect of rejection in Scotland same as for non- any right, duty, or liability declared by Act may be enforced by, 262. includes condescendence and claim and compensation in Scot- ACTIO QUANTI MINORIS, English form of, introduced into Scotland, 50. former application of, to Scotland, 52. ACTIO REDHIBITORIA, buyer's right in Scotland to reject goods and rescind contract, 52. ACTUAL RECEIPT. See RECEIPT. AGENT. See PRINCIPAL AND AGENT. AGREEMENT TO SELL, defined, 1. distinguished from sale, 1, 2, 4. goods perishing after agreement, 34. included in contract of sale, 284. ALIEN ENEMY, may bind himself by contract, 9. ALTERATIONS IN LAW. See CHANGES IN LAW. APPARENT OWNER. See OWNER. APPOINTED DESTINATION, arrival at, ends transit, 209. transit continues until arrival at, 218. though away from and not towards buyer, 218. APPROPRIATION, of goods to contract, 87. delivery to buyer or to carrier is, 87. goods may be appropriated without delivery, 95. APPROVAL (SALE ON), when property passes in contract of, 47, 84, 86. condition suspensive rather than resolutive, 94. seller in Scotland may attach goods in his own hands by, 189. right ceases with loss of right of lien, 190. "AS REQUIRED," goods to be delivered, 139. seller cannot rescind contract without notice, 139. ASCERTAINED, goods must be, before transfer of property, 78, 79. relation of, to "specific," 79. sale of unascertained or future goods, 87. specific implement of contract for delivery of ascertained goods, 248. ASSENT, of seller or buyer to appropriation of goods, 87. effect of, by seller to sale by buyer, 227. ASSIGNATION OF INCORPOREAL MOVEABLES IN SCOT- supposed analogy between, and transfer of document of title, 196. ASSIGNMENT. See TRANSFER. ASSIMILATION, of English and Scottish law, 6. effect of Mercantile Law Amendment Act in producing, over- ATTACHMENT. See ARRESTMENT. AUCTION SALES, each lot primâ facie separate contract, 263. bidder may retract bid before announcement of completion of seller or his agent cannot bid unless right specially reserved, 263. where right to bid reserved, seller or one person on his behalf modifications of Scottish law as to, 264 et seq. AVOIDED. See VOID. |