after "other disposition thereof: ""or under any agreement for sale, pledge, and other disposition thereof." See Appendix for the whole Act.

A vendor in possession of furniture under a hire and purchase agreement with the plaintiff, sold and delivered it, before the last payment was due or paid, to the defendant, who received it in good faith and without notice.-Held, that the sale was within section 9 of the Factors Act, 1889,1 and therefore valid (Lee v. Butler).2

In this section the term mercantile agent has the same meaning as in the Factors Acts. "mercantile agent."-Section 1 of the Factors Act, 1889,1 contains the following definition :-The expression "mercantile agent" shall mean a mercantile agent having, in the customary course of his business as such agent, authority either to sell goods, or to consign goods for the purpose of sale, or to buy goods, or to raise money on the security of goods.

Factors Acts.-See section 61.

of execution.

26.—(1.) A writ of fieri facias, or other writ of Effect of writs execution against goods shall bind the property in the goods of the execution debtor as from the time when the writ 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.

This replaces section 16 of the Statute of Frauds, repealed by this Act.

152 & 53 Vict. c. 45.

21893, 2 Q. B. 318; 62 L. J. Q. B. 591; 42 W. R. 88,

3 29 Car. 2, c. 3, s. 15.

Provided that no such writ shall prejudice the title to 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.

Instead of section 1 of the Mercantile Law Amendment Act, 1856,1 repealed by this Act.

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

notice of the writ.-See Gladstone v. Padwick, where the point was raised as to the validity of a bill of sale of farming stock given by an execution debtor after a writ of fi. fa. was actually in the hands of the sheriff for execution. The case was eventually decided upon the point as to whether there had been an actual seizure of the goods under the Mercantile Law Amendment Act, 1856,1 section 1, but the Court made some remarks as to what would constitute notice sufficient to remove the case out of this section. Bramwell, B., stated 2 that notice to the effect that a fi. fa. would probably be delivered to the sheriff did not amount to notice sufficient to take the case out of the section. He said, "A notice of something certain and inevitable-as of the rising of the tide though given beforehand, might perhaps after the event

1 19 & 20 Vict. c. 97, s. 1. Appendix, p. 162.

2 L. R. 6 Ex. 203, 211; 40 L. J. Ex. 154; 25 L. T. 96; 19 W. R. 1064. [1871.]

be treated as notice of the fact, but this cannot be said with respect to what is merely probable."

The decision, therefore, only amounts to this, that even where it is practically certain that execution is about to issue, or has issued, although the writ has not been delivered to the sheriff, the execution debtor can give a perfectly valid title to a sale made bonâ fide and for valuable consideration.

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

80

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.

(Rules as to delivery, wrong quantity, instalments, delivery to carrier, risk, &c. follow below.)

See Calcutta Co. v. De Mattos1 (1000 tons steam coals: Rangoon), where Cockburn, C.J., said, that "if by the terms of the contract the seller engages to deliver the thing sold at a given place, and there be nothing to shew that the thing sold was to be in the meantime at the risk of the buyer, the contract is not fulfilled by the seller unless he delivers it accordingly."

duty of the seller.—Where the goods are in the possession of a bailee, subject to charges in that behalf, there is an implied undertaking on the part of the seller that they shall be delivered to the buyer on his application within a reasonable time, and readiness to pay the charges thereon. Buddle v. Green (slates at Camden wharf).

the buyer.-A buyer of goods acquires a right of property by the contract of sale, yet he does not acquire a right of possession to the goods until he pays or tenders the price. Bloxam v. Saunders.s

See also sections 28, 39 (1), 41 (a), post.

132 L. J. Q. B. 322, 355; 33 L. J. Q. B. 214. [1863.]

227 L. J. Ex. 33; 3 H. & N. 996. [1857.]

3 4 B. & C. 941; 7 D. & R. 396. [1825.]

Example.-A. agreed to sell hops to B., and delivered account of weights and samples: payment by trade custom was to be the second subsequent Saturday, but was not made. On B.'s bankruptcy A. sold without B.'s consent. B.'s assignees could not maintain trover for value of the hops on tender of warehouse dues (Bloxam v. Saunders 1). If the buyer refuses " to accept and pay for" the goods, the seller has a right of action (which is not affected by his selling the goods to another buyer) for damages for breach of contract: Maclean v. Dunn (wool resold at a loss by vendor).

2

The presumption that the seller is to do the first act, i.e. to deliver the goods, may be rebutted by shewing that "by the terms of the contract of sale," something was first to be done by the buyer; so in Armitage v. Insoles it was held that an action for breach of a contract to deliver coal on board a vessel at Cardiff was not maintainable, for want of averment by the plaintiff that he was ready and willing to receive, &c., and had named a ship, &c. Stanton v. Austin was a similar case.

4

delivery are

conditions.

28. Unless otherwise agreed, delivery of the Payment and goods and payment of the price are concurrent concurrent conditions, that is to say, the seller must be ready and willing to give 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.

In Lockett v. Nicklin5 (2 casks of railway grease), Alderson, B. said of the Statute of Frauds, "Under that statute a contract to deliver goods without mentioning a

N.S.G.

2

1 4 B. & C. 941; 7 D. & R. 396. [1825.]

Bing. 722; 1 M. & P. 761. [1828.]

314 Q. B. 728; 19 L. J. Q. B. 202; 14 Jur. 619. [1850.]

G