Page images

ticular casks for the buyer, which the wharfinger assents to do. Still, however, there is no assent on the part of the buyer. The seller's clerk then goes to the buyer, and, producing the transfer-order he had obtained from the wharfinger, offers to give it to him, subject, however, to the condition that he shall receive a cheque in return. The buyer takes the transfer-order, but declines to give the cheque; he does not assent to the appropriation of the particular casks of oil, as a fulfilment of the contract, upon the terms upon which alone the seller was content to make it. There was no agreement ad idem, as to the appropriation, and consequently no property passed. The law upon the subject of the passing of the property in goods by appropriation is well laid down by Parke, B., in Dixon v. Yates (5 B. & Ad. 34), where he observes upon a note of my brother Manning. 'I take it to be clear,' said the learned judge, that, by the law of England, the sale of a specific chattel passes the property in it to the vendee, without delivery. The general doctrine, that the property in chattels passes by a contract of sale to a vendee without delivery, is questioned in Bailey v. Culverwell (2 M. & R. 566), in a note by the reporters; but I apprehend the rule is correct as confined to a bargain for a specific chattel. Where there is a sale of goods generally, no property in them passes till delivery, because until then the very goods sold are not ascertained; but where, by the contract itself, the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take the specific chattel, and to pay the stipulated price, the parties are then in the same situation as they would be after a delivery of goods in pursuance of a general contract. The very appropriation of the chattel is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel, and to pay the price, is equivalent to his acccepting possession. The effect of the contract, therefore, is, to vest the property in the bargainee.' The property in goods not specific, therefore, certainly does not pass to the vendee until he assents to the appropriation made by the vendor, and upon his terms. An essential ingredient was wanting, - viz., payment. If the seller had no right to impose that condition, the buyer might have had his remedy by action. But, no property passing, the plaintiff retained his right to the oil, and consequently is entitled to a verdict.”

20. SIORDET v. KUCZYNSKI. 17 Com. B. 251. Stamp-Objection as to Sufficiency of Stamp cannot be reserved for the Opinion

of the Court. This was an action on a bill of exchange, and at the trial, before Mr. Justice Cresswell, a question arose, under 17 & 18 Vict. c. 83, as to the stamp. The learned judge ruled that the bill was properly stamped, and admissible; but at the request of counsel, reserved the point for the opinion of the Court. A rule having been obtained accordingly, was discharged, the Court of Common Pleas holding, that, under the 31st section of the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), the question whether or not a document offered in evidence is sufficiently stamped, is to be decided by the judge at Nisi Prius, and cannot properly be reserved for the opinion of the Court.-(See also Tatterseall v. Fearnley, 17 C. B. 368.)

21. KINGSMILL V. MILLARD. 11 Exch. 313. Waste- Inclosure by Tenant-PresumptionDescription of adjoining Waste.

This was action of ejectment. The land sought to be recovered had been inclosed from the waste adjoining the highway, by one Sheppard, from whom the defendant claimed, and who was lessee for three lives under the plaintiff's ancestor, of certain premises, described as “all that cottage or tenement, with the garden thereto adjoining and belonging, situate, &c.; and also a piece or parcel of land lying near to the said cottage or tenement, containing, by estimation, three quarters of an acre (more or less), lately used as garden-ground.” The portion inclosed consisted of an adjoining piece of waste land not theretofore used as an outlet of the garden.

The Court of Exchequer held that the waste land did not pass under the description in the lease, but that the presumption was, that the encroachment made by the tenant was annexed to the holding under the lease.

Short Notes of New Books.

[*** All Law Books and works of interest to the Legal Profession, forwarded to the Editor of the Law MAGAZINE AND Law Review, will henceforth be noticed-either shortly, or at length-in its pages.] Precedents in Conveyancing, with Dissertations on its Law and

Practice. By Frederick Prideaux, Esq., Barrister-at-Law. Second

Edition. London: Wildy and Sons. 1856. This collection of Precedents is in good repute amongst conveyancers and those who have to concern themselves with the transfer of realty or the preparing of wills. It is unnecessary to comment at length upon a work which has already stood the test of criticism ; but we deem it only fair to state that the author's desire on this occasion “ has been to condense into one volume as much of the law and practice of Conveyancing as possible;" and with this view he has " added to the precedents several short dissertations, which may enable the reader to satisfy himself at a glance on many points without further research. The precedents, however, form the chief feature of the work, and in their preparation care has been taken to render each as simple and at the same time as complete as practicable.” We thin! hat this collection of forms may safely be recommended to the Profession.

The Practical Conveyancer. By Rolla Rouse, Esq., Barrister-at-Law.

London : Butterworths. 1856. THE plan of this work is different from that adopted by the author of the collection of Precedents last noticed. The course pursued by Mr. Rouse has been first to present to the reader an outline of the draft of a conveyance, mortgage, or lease, and then to fill up the various clauses which require to be inserted in it; arranging also under consecutive heads, according to the order in which they naturally occur in the deed, the variations which may be necessitated therein by circumstances, as regards either the conveying parties, the parties to whom the conveyance is made, the consideration, the form of conveyance, or parcels and estate conveyed. By following out this plan, the author is enabled to compress within very moderate limits, and to offer at a very moderate price, not fewer than 365 precedents of conveyances, mortgages, and leases, together with a collection of miscellaneous forms, which cannot fail to be of great utility to an adroit practitioner, who has well studied and carefully considered à priori the arrangement of the work before him. There is a full table of contents prefixed to the volume, which will much assist towards mastering its details.

2 G

VOL. I. NO, I.

The Statutes for the Relief of Insolvent Debtors, with Notes of the

Decisions thereon, &c. By Leonard Shelford, Esq., Barrister-at

Law. London: Maxwell. 1856. This volume contains not only the Statutes for the Relief of Insolvent Debtors, but also the Rules of the Insolvent Court, and the forins used both in proceedings for discharge from imprisonment and for protection from process. The plan adopted in this, as in some other similar works by Mr. Shelford, is very convenient for the practitioner. Under each section of the Act wbich he annotates, are arranged the cases (if any) bearing upon it, together with explanatory comments, carefully and skilfully prepared. A good index adds greatly to the value of this book.

Having very frequently consulted with advantage Mr. Shelford's treatises and editions of important statutes, we gladly avail ourselves of this opportunity to bear testimony to their great accuracy, and generally to the excellence of their arrangement.

Besides the above works, and some others which demand lengthened comment, we have received the following books and pamphlets

The Influence of Christianity upon International Law, being the Hulsean prize essay for the year 1854, by C. M. Kennedy, B.A. Cambridge: M‘Millan and Co. 1856.-An Inaugural Lecture on the Study of the Law, &c., by Professor Norton. Madras : Pharoah and Co. 1855. Tables of Investment, Interest, and Commission, by Andrew Wylie. London: Letts and Co.-Papers Read before the Juridical Society. Part II. London: Stevens and Norton. 1856. - Public Prosecutors, by an Attorney and Solicitor. London: Simpkin, Marsball, and Co.-The Present Crisis in Administrative Reform, by J. P. Gassiot, F.R.S. Smith and Elder. 1856.- The Appellate Jurisdiction of the House of Lords in Appeals from Scotland, by Alexander M`Neill, Esq., Barrister-at-Law. London: Butterworths. 1856.—To some, or all of which, as opportunity may present itself, we shall refer hereafter.

* We allude particularly to “ Tudor's Leading Cases on Real Property and Conveyancing ;” “Smith's Compendium of the Law of Real and Personal Property connected with Conveyancing;" and Mr. Phillimore's “ Treatise on the Principles and Maxims of Jurisprudence.

Events of the Quarter.

MISCELLANEOUS. The Right Hon. Spencer Horatio Walpole has accepted the office of Archbishop's Church Estates Commissioner, vacated by the decease of Mr. Goulburn,

We observe that, in an action for libel brought against Mr. Marsball, the Judge of the County Court at Leeds, by Mr. Barrett, a solicitor practising before him, a verdict with 408. damages has passed for the plaintiff. Has the eye of the Lord Chancellor rested upon the report of the case alluded to ?

APPOINTMENTS, &c. We have much pleasure in recording, amongst the events of the past quarter, the appointment of Mr. Russell Gurney, Q.C., to the office of Common Serjeant, in reference to which we extract the following judicious observations from the columns of our learned contemporary the Jurist (March 8) :-“The Corporation of London have shown that they fitly appreciate the services of their public men, by promoting this gentleman (Mr. Russell Gurney, Q.C.) to the office of Common Serjeant. This is bestowing honour where honour is most justly due. Mr. Gurney has filled the office of Judge in the Small Debts Court for the city of London, and of Commissioner in the Central Criminal Court, to the satisfaction of the public and of the Legal Profession. Our own experience enables us to speak more especially of him as Judge in the Small Debts Court-an important and arduous office, which compelled him almost daily to listen for six or seven hours continuously to numerous cases involving small amounts, but not the less fruitful in wrangling of the parties, long speeches of their professional representatives, hard and contradictory swearing, and everything that can try the temper and patience of inan; but we never witnessed on the part of Mr. Gurney the slightest display of ill-temper or of impatience. On the contrary, he has ever been distinguished by a calmness and placidity of demeanour, careful and earnest attention to every part of the case brought before him, and a most anxious desire to do justice between the litigant parties. We remember Mr. Gurney acting as a Judge on the Oxford Circuit, after the sudden death of Mr. Justice Talfourd, and he discharged his onerous and important duties in a manner that won great and general approbation, not only from the public but also from the Bar. He tried civil causes of considerable importance, and among other criminal cases the charges of forgery and perjury against the mock Sir Hugh Smythe. While congratulating Mr. Gurney upon his new appointment, we cannot

« PreviousContinue »