duced by the defendant to leave her home for a few days, and when she came back she did not return to her father's house. Mr. Crowder, Q. C., was addressing the jury on behalf of the defendant, when he was interrupted by the Chief Justice, who is reported to have said,

"That the girl in going away had put an end to the relation of master and servant. The foundation of the action was the loss of service, NOT FROM ANY MORAL CONSIDERATION, but by reason of the inability of the daughter to continue her services through the physical consequences of her pregnancy, and he was therefore of opinion that the plaintiff must be nonsuited."

Think of an English judge in the nineteenth century being obliged thus to speak! The law of Scotland is happily free from the odium of this kind of proceeding. There the action lies to the woman herself for the direct injury, and the "moral consideration" is of its essence. And this has been the Scotch law from the earliest period. Fictions such as this one in our action for seduction take away from the force and dignity of the law, as if the law spoke "with stammering lips" and was afraid of a direct attack.

Pleading ought to be the true and uncompromising practical exponent of the law, and there is something fine in the idea. By such an instrumentality we give jurisprudence a real power and living truth; we draw from its resources, and adapt its principles to the direction and controul of the affairs of life. Within the empire of law, pleading is the executive, justice being the desired administration. Its office then being so important, we cannot be too careful in perfecting its system. We ought to be guided by truth, and avoid the art that is more considerate of form than of just purpose. But at the same time we must include every interest, and make no sacrifice to a convenient simplicity. The simple and popular pleading recommended by some would be found to be quite unsuited to the transactions and exigencies of the present state of society. Its looseness and independence of exact rule would, it is feared, greatly encourage litigation, and the honourable though timid man would be at the mercy of his unscrupulous adversary. Its inartificial character besides would lead to uncertainty, and consequently to a want of authority in judgment. A scientific knowledge of jurisprudence would be practically superseded, and virtually declared to be above the wants of the people. But legal administration should welcome the researches of the jurist. His learning cannot carry itself too far; and with a cultivated science we would have a forensic usage which would be, in the language of Lord Coke, ipsius legis viva vox.

R. S.

ART. II.-CONTRACTS-DELIVERY AND ACCEPTANCE OF GOODS.

WE

E intend to give a series of these articles; in each of which we shall strive thoroughly to probe and determine the most difficult points in the law of Contracts, of which the explanation is likely to be of the most use to County Courts, and those who adjudicate and practise in them.

Most of the cases turn upon the sale of goods, and the various incidents which arise relating to them. We shall adopt the plan of stating, seriatim, the cardinal rules which govern the law of this class of contracts, following it in each case with such explanations and authorities as their intricacy or importance may seem to require. It will be found by those who, like ourselves, have had occasion to wade through the wilderness of cases which encumber and obscure the law on so many of these points, that it has been our object to sift rather than cite them-to gather their full spirit and true bearing. The law is laid down by a few great judges, past and present, under each phase of facts, with an avoidance of much that is doubtful or immaterial in the vast volume of cases and judgments which crowd our Reports, to the confusion of the practitioner and the benefit of injustice. It is highly expedient that principles rather than precedents should be relied on: nevertheless we shall take care to refer to all cases which are at all likely to be cited in argument, and show where they appear faulty when they conflict with the rule deduced from higher authorities.

In the sale of goods the law differs in respect of those of which the price is above or under 107. in value, seeing that the 17th section of the Statute of Frauds invalidates all contracts for goods sold for 101. or upwards "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 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 contract or their agents thereunto lawfully authorized." This statute applies simply to goods of 107. or upwards which were the subject of one contract and one transaction; the great bulk, therefore, of the contracts sued on in County Courts and elsewhere do not fall within the Statute of Frauds. The great practical distinction between the two cases is this: in the one there must be an actual or constructive acceptance of the goods sold, and in the other there need not. Where the price of the goods is under 107. the

law is satisfied with a simple sale or bargain, and will enforce its completion on either side; in that case, it will compel the payment of goods sold and delivered without proof of acceptance; in the other it will not, unless there has been either actual acceptance or one of the equivalent proofs of the contract mentioned in the 17th section above cited.'

I. Delivery is, in both cases, an essential requisite. Goods must be delivered by the seller before he can sue for payment, but non-acceptance by the buyer may be, and often is, the ground of the action; as where an article is ordered under 10l. in price, and being delivered according to order is refused by the buyer. The delivery must be such as to give the buyer actual or constructive possession, so that he has full power to deal with them as his own, or they must have been delivered in such manner as he has directed.

Thus, as laid down in the case of Bryans v. Nix, 4 M. & W. 791, by the Court of Exchequer,

"If the intention of the parties to pass the property, whether absolute or special, in certain ascertained chattels is established, and they are placed in the hands of a depositary, no matter whether that depositary be a common carrier or ship master employed by the consignor, or a third person, and the chattels are so placed on account of the person who is to have that property, and the depositary assents, it is enough, and it matters not by what documents this is effected."

Thus any act which, in virtue of a sale, divests the seller of his right to deal with the property as his own and invests the buyer with it, is a delivery. In cases of delivery to an agent, the only question is whether the agent holds for the buyer or the seller if for the former, the delivery is complete; if for the latter, there is no delivery; because in the former the goods are in the power of the buyer, and in the latter they are not. Cases in which this distinction occurred will be found in Bentall v. Burn, 3 Barn. & Cres. 423; Bill v. Baiment, 9 M. & W. 36; and also in the case of Elmore v. Stone, 1 Taunt. 458, where the seller had merely shifted a horse which he had sold from one stall to another where he intended him to stand at livery for the buyer. This was held to be a delivery, because the seller had thereby parted with his lien and had put the animal at the disposition of the buyer.

It is equally delivery where the seller delivers the property in the manner the buyer has directed, although it has not come into his possession and immediate power. Such deliveries occur wherever the goods are given to a carrier specified by the seller, the delivery would be complete; Peck v. Dawes, 8 T. R. 330; Richardson v. Dunn, 2 Q. B. 218. The buyer might not

have possession in this case, for the carrier would have his lien for freight, but here the seller would have equally parted with his lien and have done what he was directed to do in order to give the buyer the power of possession. This done, the seller may sue for the price of the goods thus constructively delivered, whether they have reached the actual possession of the buyer or not. But where the seller shall have selected his own carrier he is the seller's agent, and the goods are neither constructively nor actually within the power of the buyer, and there is no delivery until the goods are placed within it. The same rule does not apply with respect to delivery or non-delivery in these cases as in those where the right to stop in transitu occurs, for it may survive the right of lien and property in the seller, and exist after the constructive delivery is complete. The two rules are, therefore, distinct, and must not be confused.

The delivery must be made at a reasonable time after the contract, and, in the absence of any express agreement on this point, the jury is to judge of what is reasonable time; Ellis v. Thompson, 3 M. & W. 453. If a given number of days are assigned for the completion of goods and their delivery, they must be delivered at a sufficient time before midnight, to enable the receiver to receive and weigh or examine them. And the usages of trade are to be considered in estimating whether the circumstances of the delivery do or do not comply with this requirement. See the case of Startup v. Macdonald (in error), 6 Man. & Gr. 593.

II. There must be delivery, as well as sale, to give the seller a right to sue. But the question of acceptance arises chiefly in determining the validity of defences. If the acceptance has been complete there is no valid defence short of fraud for goods once sold and delivered.

There has been acceptance wherever goods duly delivered

have been long enough in the buyer's actual or constructive possession to give him the means of testing the goods, and ascertaining whether they are according to

contract.

If the goods have been duly delivered (though it be a mere constructive delivery) the question of acceptance turns wholly upon time.

The common law requires delivery under all cases before the seller can sue for payment. The Statute of Frauds requires acceptance only where the goods are above 101. in price, and, as far as this goes, it requires very little if anything more than the common law requires: for wherever there has been a delivery, acceptance ensues where the goods are not repudiated within a

certain short space of time. The same test or rule applies as to what is delivery in both cases alike. The only substantial difference effected by the statute is this,-that when goods are delivered to the buyer according to order, they can, nevertheless, be repudiated if they are above 107. in price, and if there be no written contract or part payment, and they can not be repudiated if they are under that price. This, though it is not the fashion of our text books to probe the principle or effect of these distinctions, is in reality all that the statute does. It says to the buyer you shall not be bound by a verbal order for goods of above 10l. price, unless you have done something more to attest

the contract.

Acceptance being tested in all cases by the same laws, let us see what they are. Lapse of time after due delivery determines what is acceptance. Therefore there are but two questions in each case: Have the goods been delivered according to the rule already examined; and, if so, has a sufficient interval elapsed to enable the buyer to examine and test them, so in fact as to see whether they are according to contract or not? If so, and he has not repudiated, he has accepted them. This is the law of acceptance. This rule has, indeed, been doubted in one recent case in the Court of Exchequer, but it is strongly upheld in another of equal or greater authority in the Court of Queen's Bench. In the former case of Norman v. Phillips, 14 M. & W. 277, the Court thought that an exception should be made where the goods were delivered to a warehouseman, who, though specified as the receiver of the goods by the buyer and his agent to hold them, was not his agent to accept or examine them; and though the goods had lain eight weeks before they were repudiated, the court held that there was no acceptance. The contrary doctrine, in conformity no less with the current of previous decisions than with the usages of trade, governed the decision in the case of Bushel v. Wheeler, 8 Jurist, 532. The court held the acceptance complete, and yet the facts were less strong than in the former case. In Bushel v. Wheeler the carrier had been named by the buyer, but he refused to receive the goods on their arrival, and they remained with the carrier, the repudiation, however, was not sent till long after. Lord Denman said in his judgment that "the purchaser may depute another person to exercise a judgment for him as to the quality of the goods . . (and added) it seems to ine that there may certainly be an acceptance under the statute which is not a manual one." Where the buyer has the goods within his power, how can the right of the seller be affected by the buyer's laches in examining the goods? If he does not