respect the enactments were far more rigid than the corre- Sect. 3. sponding rules regarding heritage in Scotland, for although these require writing in the constitution of the contract, a formal title is not necessary to the validity of the personal contract where the registered rights of third parties are not in question. The progress of shipping legislation, however, has been towards greater freedom of contract, and it has now reached the point that personal rights in Scotland and "equitable interests" in England are freely recognised apart from formal title and registration.1 But since registration of a transfer in a particular form is not now necessary to the validity of a personal contract for the sale of a ship, the question arises whether writing is still essential to the constitution of the contract. Writing, as we have seen, is necessary in the case of a sale of heritage in Scotland, and it is also necessary under Sect. 4 of this Act in the case of the sale of a ship in England, but there is no longer any statutory provision making writing essential to the validity of a contract for the sale of a ship in Scotland. It would seem, therefore, that such a sale may now be validly contracted without writing so as to bind the contracting parties and their representatives, though it would not be effectual against bona-fide holders of a registered title.3 nature of shipping property is, however, so exceptional that a verbal contract for the sale of a ship is not likely to be 4 The personal right; and in Mill v. Hoar (18th December 1812), F. C., an arrester was preferred to a party subsequently registered as owner. The development of the law of England on this subject is ably treated by Lord Justice Lindley. -Law Magazine (1862), vol. xiii. p. 70. 1 Cf. 34 Geo. III. c. 68, Sect. 14, and 3 & 4 William IV. c. 55, Sect. 32, with 17 & 18 Vict. c. 104, Sect. 37 (2); 25 & 26 Vict. c. 63, Sect. 3; and the present Merchant Shipping Act, 57 & 58 Vict. c. 60, Sects. 5 (ii.) & 57. The sections of the existing Act will be found in Appendix I. post, pp. 307, 309. Duthie v. Aiken (1893), 20 Ret. 241, is a recent example of the recognition of beneficial interests. A similar relaxation and admission of "equitable interests" is now recognised in the statutory law of patents; cf. 15 & 16 Vict. c. 83, Sect. 35, with 46 & 47 Vict. c. 57, Sect. 87. 2 This is partly due to the old statutes and partly to the common law. 3 Writing was not necessary to the sale of a ship in Scotland prior to the statutory law on the subject-Cathcart v. Holland (1681), Mor. 8471. In Hamilton v. Gordon (1710), Mor. 14195, a party who bought a ship at a public auction was held to be free because he had not signed the Articles of Roup although the purchase was otherwise admitted; but this decision can be explained on the ground that the parties had prescribed writing for themselves. "Verbal" is here used in its popular sense. See note (f) supra. Sect. 3. Quinquennial prescription. Triennial prescription. of frequent occurrence. The proof would require to be exceptionally clear to overcome the presumption arising from contrary usage. The contract of sale falls within the quinquennial prescription or limitation introduced by the Act 1669 c. 9, which provides that bargains concerning moveables "shall only be provable by writ or oath of party if the same be not pursued for within five years after the making of the bargain." The Act, however, only applies to verbal bargains, and has no application to sales constituted by writing.2 After the five years the subsistence of the debt as well as the constitution of the obligation must be proved by the writ or oath of the alleged debtor.3 1 The triennial prescription, which is of still older date than the quinquennial, also applies to certain kinds of sales not constituted or evidenced by writing. The words "merchantes compts" in the Act of 1579 "mean primarily accounts incurred to shopkeepers or sellers of wares on credit. The term, in connection with the general phrase of 'the like debts,' embraces accounts to dealers whether wholesale or retail . . . and generally all accounts for furnishings, labour, and the like which are apt to run into credit, and which, being contracted without writing, are likely to be discharged without that formality." 5 But it does not apply to accounts-current between merchants or to accounts for commission charged by mercantile agents on goods purchased by them. It has been doubted whether it includes 6 1 E. Southesk v. Keddy and Simpson (1682), Mor. 11066; White v. Spence (1683), Mor. 11065; Ewart v. Murray (1730), Mor. 11067; Moffat v. Moffat (1737), Mor. 13214; Nobles v. Armstrong (1st June 1813), F.C.; Lawson v. Milne (1839), 1 D. 603. 2 Hunter v. Thomson (1843), 5 D. 1285. "The prescription . . . has evidently been designed to cover those independent mercantile transactions regarding moveables which, from not being parts of current accounts, were not protected by the triennial prescription."-Dickson on Evidence (Grierson's ed.), Sect. 477. 3 E. Southesk v. Keddy and Simpson (1682), Mor. 11066; White v. Spence (1683), Mor. 11065; Nobles v. Armstrong (1st June 1813), F.C.; Campbell v. Grierson (1848), 10 D. 361; Kennard and Sons v. Wright (1865), 3 Macp. 946. 4 Act 1597 c. 83. 5 Dickson on Evidence (Grierson's ed.), Sect. 492. 6 M'Kinlay v. Wilson (1885), 13 Ret. 210. But see Batchelor's Trustees v. Honeyman (1892), 19 Ret. 903. 7 Brown v. Brown (1891), 18 Ret. 889. a claim for the price where the sale is that of an isolated Sect. 3. article, or where a number of articles are sold under one contract, but delivered at different times.2 The prescription, as applied to merchants' accounts, does not run on each separate item, but only on the whole account when closed, so that a new item within three years of the preceding one, if added bona fide and not for the mere purpose of eliding the prescription, will preserve the currency of the account.3 The statute excludes debts founded on " written obligations," but the obligation must be completed in writing so as to bind both parties, and therefore a mere order for goods, or a written order verbally accepted and acted upon,5 will fall within the prescription. It is not necessary, however, in order to exclude the statute, that the writing should be probative in the sense of being either tested or holograph. The effect of the quinquennial and triennial prescriptions Effect of the is not to cut off all claim, but to limit the proof to the prescriptions. "writ or oath" of the alleged debtor in the obligation." The original constitution and also the continued existence of the obligation must in the absence of writing be established by the oath of the other party to the action under a judicial reference. Under such a reference, unless the party examined admits that the obligation was contracted and still exists, or unless he admits circumstances which necessarily infer that result, the oath will be negative.s 1 See Baird v. Montgomery (1688), Mor. 11092; Ewart v. Murray (1730), Mor. 11067; M'Gregor v. Stewart (1811), Hume 472; Smith v. Millar (1827), 5 Sh. 338; Gobbi v. Lazzaroni (1859), 21 D. 801. 2 See Bruce v. Jack (1670), 1 Br. Sup. 609; Macdougall v. Campbell (1830), 8 Sh. 959, H.L. (1833), 7 W.S. 19. In the latter case the Court of Session held that the statute applied, but in the House of Lords the point was considered doubtful. 3 Mason v. E. Aberdeen (1709), Mor. 11094; Fisher v. Ure (1836), 14 Sh. 660; Stewart v. Scott (1844), 6 D. 889; Aytoun v. Stoddart (1882), 9 Ret. 631; Ross v. Cowie's Executrix (1888), 16 Ret. 224. Cheap v. Cordiner (1775), Mor. 11111; Ross v. Shaw (1784), Mor. 11115, Douglas v. Grierson (1794), Mor. 11116. 5 Chalmers v. Walker (1878), Ret. 199. 6 Black v. Shand's Creditors (1823), 2 Sh. 118; Watson v. Hunter and Co. (1841), 3 D. 583; Wood v. Howden (1843), 5 D. 507; Watson v. Johnstone (1846), 18 Sc. Jur. 598; Macandrew v. Hunter (1850), 13 D. 1111. 7 The bargain prescribes quoad the manner of probation by witnesses, and an offer to prove delivery juramento is irrelevant unless the continued restingowing of the price is also referred to oath.-White v. Spence (1683), Mor. 8 Cowbrough and Co. v. Robertson (1879), 6 Ret. 1301. 11065. Sect. 3. applied to foreign obli gations. In the case of an obligation incurred in England or Prescription as abroad the effect of prescription in Scotland has been much discussed. The question may, however, be taken as settled in conformity with Don v. Lippman1 (1837), where in the course of giving judgment in the House of Lords, Lord Brougham laid down the following rule: "Whatever relates to the nature of the obligation-ad valorem contractus -is to be governed by the law of the country where it was made, the lex loci; whatever relates to the remedy by suits to compel performance, or by action for a breach ad decisionem litis is to be governed by the lex fori—the law of the country to whose Courts the application is made for performance or for damages. . . . Assuming this to be the settled rule here, the only question is whether the limitation of action belongs to the contract or the remedy." In reference to the argument that statutory limitations of the mode of proof refer to the contract itself, and not merely to implement, Lord Brougham observed that the parties "looked to performance only, and to the time of performance; the argument supposes them to have looked to a breach. Nothing can be more violent than the supposition that the breach of the contract is in the contemplation of the parties, and indeed nothing more contrary to good faith." 3 Upon the authority of this and other cases it may be held as settled that such prescriptions as the quinquennial and triennial, which only limit the mode of proof and do not affect the obligation itself, are enforceable in Scotland although the contract may have been entered into beyond the limits of Scottish jurisdiction. On the same principle no effect can be given in Scotland to any similar prescription or limitation existing in the lex loci contractus. Sect. 4. ... 4.-(1.) A contract for the sale of any goods of the value of ten pounds or upwards shall not be enforceable by action unless the buyer shall accept part 1 2 Sh. & M'L. 682, reversing Lippman v. Don (1836), 14 Sh. 241. 32 Sh. & M'L. at p. 728. of the goods so sold, and actually receive the same, Sect. 4. or give something in earnest to bind the contract, (c) or in part payment, or unless some note or memorandum in writing of the contract be made and signed by the party to be charged or his agent in that behalf. (2.) The provisions of this section apply to every such contract, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery. S (3.) There is acceptance of goods within the meaning of this section when the buyer does any act in relation to the goods which recognises a pre-existing contract of sale whether there be an acceptance in performance of the contract or not. (4.) The provisions of this section do not apply to Scotland.) NOTES. (a)" Enforceable by action." These words were substituted in Committee for "allowed to be good," but the substitution does not remove the objection long urged against the 17th section of the Statute of Frauds of which this section is practically a reproduction. The words as they now stand suggest that there is nothing illegal in entering into a verbal contract for the sale of goods of the value of £10 or upwards, but that if one of the parties does not keep to his bargain the other has no legal redress. The law, while recognising the right, refuses the remedy. (b) "Accept"—"actually receive." Statutory force is here 1 The change of phrase is in accordance with decision. The contract is "not void, still less illegal." See Maddison v. Alderson (1883), 8 App. Cas. 467.-Per Lord Blackburn at p. 488. |