or to disregard Wood V.-C.'s decision, but for the mistaken view of the earlier authority which he considered the V.-C. to have taken. And, taking the view which I do, after a close examination of the old case, and after noticing that it seems to have escaped attention in Soames v. Martin, a case which has seriously affected the decision in later cases, it might seem sufficient to submit that, when the case again arises of the construction of a provision for 'maintenance and education' occurring in a colourless context, it should be regarded as a proposition covered by authority that the majority of the beneficiary marks the farther limit of enjoyment1. But, authority apart, it seems a fair contention that the phrase 'maintenance and education,' which occurs in almost every will and marriage settlement in express connexion with the period of infancy, has, by usage, come to have a definite prima facie association with that period. If this is so, (and Wood V.-C. and Lord Camden seem to have thought so,) comments by other judges upon the modern methods of education, and the lifelong need of maintenance, and the propriety of reading the words conjunctively or disjunctively, would seem to lose a good deal of their force.

T. K. NUTTALL.

1 I do not mean that, even in such a case, there might not be extrinsic facts—e. g. the full age, (known to the testator,) of the beneficiary at the date of the willstrong enough to warrant the Court in deciding that the intention was to confer a life interest.

SOME POINTS OF DIFFERENCE BETWEEN ENGLISH AND SCOTCH LAW.

NOTH

OTHING is so interesting to the man who studies the science of law for its own sake, as the comparison of different systems of jurisprudence. Where these systems have grown up side by side, and in immediate proximity to one another, as in the case of the legal systems of England and Scotland, the comparison becomes doubly interesting. Prior to the reign of Edward III the ideas of the Scottish jurists were largely influenced by the jurists of England, and the law of both countries developed very much on the same lines. A striking similarity is to be found in the legal systems of England and Scotland as they existed in the fourteenth century. In the reign of Edward III, however, political circumstances supervened, which threw Scotland into the arms of France, and from that time until the beginning of the present century, Scotland may be said to owe little or nothing to England in the matter of law. Within the last hundred years, however, a process of assimilation has been going on, which has tended to soften down the differences which exist between the law of England and that of Scotland, and if the two countries continue to remain subject to one Parliament, these dissimilarities may ultimately disappear. In passing the recent Sale of Goods Act, 1893, Parliament took one more step in this direction. It may not be uninteresting to describe some of the more prominent points of difference, which at present exist between the legal systems of the two countries.

In Scotland a promise to give, or deliver, or pay, or do, or abstain is binding without any preceding consideration, provided it is undertaken as a final engagement and not mentioned as a mere probable intention. In this respect the law of Scotland differs fundamentally from the law of England, which holds that obligations undertaken without consideration do not bind the parties. The result of the Scotch doctrine is that donations once made, otherwise than by last will or mortis causa are irrevocable, except between husband and wife. Again a person may be immediately and irrevocably bound by a delivered document to pay an annuity or legacy after the promisor's death. Gratuitous promises, however, are by statute liable to be declared void at the suit of a prior creditor, if the grantee is a near relation or confidant.

There is no statute similar to the English Statute of Frauds in

Scotland. Neither contracts for the sale of goods above the value of £10 nor contracts not to be performed within a year need be in writing. The sale of goods is effectually proved by verbal or written evidence or by admission of the party to be charged. When the bargain is made by the principal without writing, the evidence of two witnesses, or one corroborated by circumstances, is necessary, or the letters of the party, holograph or signed by him, are good proof. The English rule requiring that the consideration should be stated in contracts for the sale of land, and in consideration of marriage, and in promises by executors, is unknown in Scotland. As no consideration is necessary to a contract, none need appear in writing. Again in England if 4 makes an offer to B and B asks for time to consider, A having received no consideration for waiting need not do so. In Scotland A must wait because no consideration is necessary to support the contract. Scotch law requires, however, that contracts for the sale of land, copyright and ships should be in writing. In America the English Statute of Frauds has been generally adopted. In France the law of sale is not very different from that of Scotland. Verbal evidence is admitted, but with jealousy and caution. The law of Holland most nearly resembles that of Scotland.

There are no bills of sale in Scotland, except in connexion with the transfer of ships. Possession presumes property in moveables, or goods and chattels, to give the English equivalent. Where the possession of moveables is retained, neither an instrument of possession nor actual delivery, if the thing be immediately restored, has any effect in passing the property so as to counteract the presumption of property arising from possession. It is on this principle that in Scotland a factor in possession of goods has at common law a power to pledge, which in England is given by statute. A person, however, may acquire moveables by purchase, for example the furniture of an inn, and take delivery through a tenant or other bailee and leave them in his possession on a contract of hire and purchase without exposing them to the danger of being seized by the tenant's creditors.

In Scotland it is a condition implied that goods shall be fit for the purpose for which they are bought and such as they are represented or taken to be, according to the fair understanding of the parties. When the thing bought is produced to the buyer, the rule caveat emptor applies in Scotland as in England. Formerly the law of Scotland held that in contracts of sale the Roman maxim caveat vendor applied. In every contract of sale there was, according to the old Scotch law, an implied condition that the thing sold was merchantable and fit for the purpose for which it

was sold, and the seller, though quite ignorant of the latent defect, and though the goods had been examined by the purchaser, was liable if it should turn out that the article was substantially defective. In 1856, however, by the Mercantile Law Amendment Act (19 & 20 Vict. c. 60), the law of Scotland was assimilated to that of England and caveat emptor became the rule in the north as well as in the south.

Until quite recently a warranty was regarded in Scotland, not as a mere collateral contract, but as an absolute qualification of the contract of sale. If a man bought a horse with a warranty of soundness and the horse proved unsound, his only remedy was to return it. He could not keep it with an abatement of the price. By the Sale of Goods Act, however, it has been enacted, that a buyer may either reject the goods and treat the contract as repudiated, or he may retain them and claim compensation in damages.

In Scotland a deed need not be scaled. Sealing fell into disuse towards the end of the sixteenth century. A mark or cross is not a sufficient signature to a deed in Scotland. A deed thus signed is null. In the case of a person who cannot write, the deed must be executed by two notaries before four witnesses. The party must touch the notaries' pen in token of authority or must acknowledge it before the witnesses. In Scotland no distinction exists between specialty and simple contract debts. The doctrine that a simple contract merges in a specialty is unknown in Scotland. The distinction in Scotland is not between contracts under seal and simple contracts, but between contracts in writing and verbal contracts. By Scotch law a writ, whether a deed or not, can only be set aside by another writ.

According to Scotch law a mistake of law as well as of fact invalidates a contract, when its existence excludes real consent. The mistake of law, however, will not always entitle to restitution after the contract is fulfilled or money paid. If there is bona fides and money is paid with full knowledge of the facts, though there is no debt, it cannot be recovered back, merely because paid in ignorance of law, unless the circumstances are such as to render it inequitable for the party receiving the money to profit by the mistake of the other. In England the maxim ignorantia juris neminem excusat applies to cases of error in contract as well as to payment of money in error. The application of the English rule, however, has in practice been much restricted, and it may almost be said that in this matter the English and Scottish law are practically in harmony.

In Scotland a company is a distinct entity, separate from the

partners, and competent to maintain relations with third parties by its separate name or firm. The partners are regarded simply as sureties or cautioners,' to use the Scotch term. The firm may stand in the relation of debtor or creditor to any of its partners and can sue and be sued by any of them. Two firms having one or more members in common may sue each other. In England since 1876 actions may be brought by and against partners in the name of their firm, but this change of practice does not alter the old doctrine of English law, which refuses to recognize the firm as a separate person.

In Scotland trespass is not actionable without malice or substantial damage. The only way of enforcing right of possession and excluding intruders, is by obtaining an interdict, or, as it is called in England, an injunction, against the trespasser. The only penalty to which the trespasser is subject (apart from destruction of property or malice), is the expense of the application for the interdict. The interdict will only be granted in case of a wellfounded application, and where there is reasonable apprehension that the trespass will be repeated. Thus in 1885 where a shoemaker in Ross-shire allowed a pet lamb belonging to him to stray on to the skirts of a gigantic deer forest, extending over 200,000 acres, and the lessee of the forest applied for an interdict against him, the Court of Session declined to grant it. The use of force to eject a trespasser is unlawful and would found a claim for damages at his instance. There is no Scotch maxim corresponding to the English one, that 'the Englishman's house is his castle.' In the eye of the law of Scotland, a Scotchman's house is not his castle. A bailiff has an absolute right of opening shut and lockfast places.

Scotch law permits a direct action for seduction, a claim for which may be combined with a claim for breach of promise. A husband may sue the seducer of his wife on the ground of loss of her society and of domestic unhappiness and of injury to the family. A decree of divorce need not precede the claim. Scotch law knows no distinction between libel and slander. According to Scotch law, in an action for defamation there are two matters to be taken into account in considering the question of damages, namely, the injury or loss suffered actual or probable, for which reparation is sought, and the insult and offence to the individual for which a solatium is due. Thus in Scotland an action lies for a slander contained in an unpublished letter sent to the pursuer or uttered to himself when no other person is present. But words which would found an action if addressed to a third party, may not do so when addressed to the party himself, who complains of them.