Sect. 25.

Effect of

writs of execution.

for consultation with the draftsman of the Factors Act. If not wanted they can be repealed by a Statute Law Revision Act.

26.-(1.) A writ of fieri facias or other writ of execution against goods shall bind the property in the goods [29 Car. 2, of the execution debtor as from the time when the writ c. 3, s. 15.] is delivered to the sheriff to be executed; and, for the better manifestation of such time, it shall be the duty of the sheriff, without fee, upon the receipt of any such writ to endorse upon the back thereof the hour, day, month, and year when he received the same.

[19 & 20

s. 1.]

Provided that no such writ shall prejudice the title to Vict. c. 97, such goods acquired by any person in good faith and for valuable consideration, unless such person had at the time when he acquired his title notice that such writ or any other writ by virtue of which the goods of the execution debtor might be seized or attached had been delivered to and remained unexecuted in the hands of the sheriff.

(2.) In this section the term " sheriff" includes any officer charged with the enforcement of a writ of execution.

(3.) The provisions of this section do not apply to Scotland.

The first paragraph of this section reproduces sect. 15 of the Statute of Frauds with the addition that the sheriff is required to indorse the hour on the writ, but this accords with the practice. The second paragraph reproduces sect. 1 of the Mercantile Law Amendment Act, 1856. Both these enactments are now repealed.

Sect. 1 of the Mercantile Law Amendment Act, 1856 (19 & 20 Vict. c. 97), was in the nature of a proviso to sect. 15 of the Statute of Frauds. It was enacted to carry out a recommendation of the Mercantile Law Commission, 1855, and to assimilate English to Scotch Law in this respect. See Second Report, p. 8.

1 Sect. 15 of the Revised Edition is commonly cited as sect. 16.

It has been held that the words, "shall bind the property in the goods," do not prevent the property from passing by the sale, but constitute the execution a charge upon the goods.1

Compare the definition of sheriff given by sect. 168 of the Bankruptcy Act, 1883, and see the saving for the bankruptcy laws, post, p. 113.

1 Woodland v. Fuller (1840), 11 A. & E. 849; sce at p. 867.

Sect. 26.

Sect. 27.

Duties of seller and buyer.

PART III.

PERFORMANCE OF THE CONTRACT.

27. It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale.1

See "delivery" defined, post, p. 114. "In every contract of sale," says Watson, B., "there is involved a contract on the one side to accept, and on the other to deliver." "If," says Martin, B., in the same case, one buys goods of another in the possession of a third party, the vendor undertakes that they shall be delivered in a reasonable time. If I buy a horse of you in another man's field, it is part of the contract that if I go for the horse I shall have it." 2 The general obligation to deliver may, however, be modified by the terms of the contract. As Lord Blackburn says, there is no rule of law to prevent the parties from making whatever bargain they please. Thus, where the seller gives the buyer a delivery order for the goods it may be a condition that the order should be given up to the warehouseman before the buyer can get the goods. Again, a man with his eyes open may buy the chance of obtaining goods and not the goods themselves: see sect. 5 (2), ante, p. 16 (sale of expectancy), and sect. 12, ante, p. 27 (warranty of title). French

3

1 Buddle v. Green (1857), 27 L. J. Ex. 33; Woolfe v. Horne (1877), 2 Q. B. D. 355 (sale by auction); French Civil Code, arts. 1603, 1650.

2 Buddle v. Green, suprà; cf. Wood v. Baxter (1883), 49 L. T. N.S. 45. 3 Calcutta Co. v. De Mattos (1863), 32 L. J. Q. B., at p. 328. See the passage cited at length, post, p. 180; and see per Lord Esher in Honck v. Muller (1881), 7 Q. B. D., at p. 103, C. A.

✦ Bartlett v. Holmes (1853), 22 L. J. C. P. 182; see, too, Salter v. Wcollams (1841), 2 M. & Gr. 650, as explained in Benjamin on Sale, 4th ed., p. 683; Bagueley v. Hawley (1867), L. R. 2 C. P. 625, which is of doubtful authority.

law, like Civil Law, puts a stricter interpretation on the general obligation of the seller to deliver than English law does.1 Whether the seller be the owner of the goods or not, he is bound to deliver. Hactenus tenetur ut rem emptori habere liceat, non etiam ut ejus faciat.

Sect. 27.

and de

conditions.

28. Unless otherwise agreed, delivery of the goods Payment and payment of the price are concurrent conditions, that livery are is to say, the seller must be ready and willing to give concurrent possession of the goods to the buyer in exchange for the price, and the buyer must be ready and willing to pay the price in exchange for possession of the goods.2

"Where goods are sold," says Bayley, J., "and nothing is said as to the time of delivery or the time of payment . . . the seller is liable to deliver them whenever they are demanded upon payment of the price, but the buyer has no right to have possession of the goods till he pays the price. . . . If goods are sold on credit, and nothing is agreed upon as to the time of delivering the goods, the vendee is immediately entitled to the possession, and the right of possession and the right of property at once vest in him. But the right of possession is not absolute; it is liable to be defeated if he becomes insolvent before he obtains possession." "3 The language of Bayley, J., might be taken to imply that in cash sales payment was a condition precedent to delivery, but a reference to the cases cited in the footnote to the section shews that payment and delivery have always been considered concurrent conditions.

In an action for non-delivery, it seems the buyer need not give Evidence. evidence that he was ready and willing to pay, till the seller shews he was ready to deliver. Conversely, in an action for non-acceptance,

1 Pothier, Contrat de Vente, Nos. 42-48; French Civil Code, arts. 1603, et seq.

2 Morton v. Lamb (1797), 7 T. R. 125; Rawson v. Johnson (1801), 1 East, 201; Wilks v. Atkinson (1815), 1 Marshall, 412; Pickford v. Grand Junction Railway (1841), 8 M. & W., at p. 378; cf. Bussey v. Barnett (1842), 9 M. & W. 312; Bankart v. Bowers (1866), L. R. 1 C. P. 484; Paynter v. James (1867), L. R. 2 C. P.

3 Bloxam v. Sanders (1825), 4 B. & C. 491, at p. 948; cf. Chinery v. Viall (1860), 29 L. J. Ex., at p. 183, as to credit sales.

Wilks v. Atkinson (1815), 1 Marshall, 412. "The averment of the plaintiff's readiness and willingness to perform his part of the contract will be proved by shewing that he called on the defendant to accomplish his part." Notes to Cutter v. Powell, 2 Smith, L. C., 9th ed., p. 18.

Sect. 28.

Rules as to delivery.

the seller need not prove any tender of delivery. It is enough to shew that he was ready and willing to deliver.1

Where shares were sold, under a written contract, to be paid for at a future day, it was held that evidence might be received of a trade usage not to deliver till payment.2 On the other hand, where there was a contract in writing for the sale of hops at so much per cwt., evidence of a course of dealing between the parties to allow six months' credit was rejected. It is easier to draw imaginary distinctions between these cases than to harmonise the principles on which they

rest.

29.-(1.) Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case on the contract, express or implied, between the parties. Apart from any such contract, express or implied, the place of delivery is the seller's place of business, if he have one, and if not, his residence: Provided that, if the contract be for the sale of specific goods, which to the knowledge of the parties when the contract is made are in some other place, then that place is the place of delivery.

(2.) Where under the contract of sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time.4

(3.) Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until such third person acknowledges to the buyer that he holds the goods on

1 Jackson v. Allaway (1844), 6 M. & Gr. 912; Baker v. Firminger (1859), 28 L. J. Ex. 130.

2 Field v. Lelean (1861), 30 L. J. Ex. 168, Ex. Ch.; overruling as to usage, Spartali v. Benecke (1850), 10 C. B. 212; 19 L. J. C. P. 293.

3 Ford v. Yates (1841), 2 M. & Gr. 549,'as explained, Lockett v. Nicklin (1848), 2 Exch. 93; 19 L. J. Ex. 403.

Ellis v. Thompson (1838), 3 M. & W. 445, see at p. 456, per Alderson, B.