Blackburn," has been long established, its customs become Sect. 55. known to the law, and are judicially taken notice of as a matter of law."1 56. Where, by this Act, any reference is made to Sect. 56. a reasonable time () the question what is a reasonable REASONABLE time is a question of fact. NOTE. (a) "Reasonable time." The words are used in Sects. 11 (2), 18, Rule 4 (b), 29 (2), 35, 37, and 48 (3). COMMENTARY. TIME A QUESTION OF FACT. jury. In England, the ascertainment of questions of fact by Ascertainment means of a jury is much more general than in Scotland,2 of fact by and the provision of this section is intended to set at rest, so far as regards this Act, certain questions which have arisen in English law. Taylor, in his work on Evidence, says: "The line between law and fact has been very indistinctly drawn in a certain class of cases, and in these cases, therefore, the respective duties of the judge and jury are not yet clearly defined. For instance, if the question be whether a certain party had Blackburn on Sale, p. 80. See Brandao v. Barnett (1846), 12 Cl. & Fin. 787. As to proof generally, see Athya and Co. v. Rowell and Co. (1856), 18 D. 1299 (period of credit), Towill and Co. v. The British Agricultural Association (1875), 3 Ret. 117 ("cash in 14 days as usual"), also Dickson on Evidence (2nd ed.) Sects. 196, 197, (Grierson's ed.) Sects. 1060, 1061. 2 In Scotland, prior to the institution of the Court of Session in 1532, facts in civil as well as in criminal cases were often proved before an assize or jury, but between 1532 and 1815, jury trial was almost entirely confined to crimes. In the latter year a special Jury Court for the ascertainment of facts in civil cases was created by statute (55 George III. c. 42) and continued till 1830, when it was merged in the Court of Session (1 William IV. c. 69). The cases to be tried by jury were at first left entirely to the discretion of the Court (55 George III. c. 42, Sects. 1, 2), and although by subsequent statutes (e.g. 59 George III. c. 35), certain causes were enumerated as appropriate to jury trial, the system of trial by jury in civil cases never took firm hold. In 1866, the growing disinclination to jury trial led to power being given to the Lord Ordinary to take proof of facts before himself "if both parties consent thereto, or if special cause be shown" (29 & 30 Vict. c. 112). "Since 1868, however, a more economical and expeditious mode of conducting jury trials has led to a certain reaction in their favour." See Mackay's Manual of Practice, p. 326, and remarks of Lord Justice-Clerk Hope in M'Celland v. Rodger and Co. (1842), 4 D. 646 at p. 651. Relation of in England. law to fact Sect. 56. Effect of section. Sect. 57. RIGHTS ETC. probable cause for doing an act, or whether he has done an act within a reasonable time, or with due diligence, it is difficult to say whether the definition of what constitutes probable cause, reasonable time, or due diligence, be for the judge or the jury, and specious arguments will not be wanting in favour of the claims of either party. On the one hand, it may be said that these terms are as capable of judicial interpretation as the words conversion, or asportation, which must, clearly, be explained by the judge; while, on the other hand, it may be urged that they seem rather addressed to the practical experience of practical men, than to the legal knowledge of the mere lawyer; that, being terms of degree, their meaning is subject to indefinite fluctuation according to the varying circumstances of each particular case, and that, consequently, they defy all attempts to compress them within exact a priori definitions. In truth, they are neither matters of fact nor matters of law exclusively, but are rather matters of quality or opinion, which, for want of a more appropriate name, have been generally termed 'mixed cases." "1 The effect of the section is that questions arising under the Act as to what is a reasonable time should be submitted to a jury, where the general facts of the case are proved in this way. 57. Where any right, duty, or liability is declared by this Act, it may, unless otherwise by this Act provided, be enforced by action. (a) NOTE. (a) "Action' includes in Scotland, condescendence and claim and compensation" [Sect. 62 (1)]. COMMENTARY. In Scotland, it is scarcely necessary to declare that rights connected with sale are enforceable by action. In 1 Taylor on Evidence, 6th ed., vol. i. pp. 38, 39. action not nised-other this respect the law differs to some extent from that of Sect. 57. England, where by a rule of the common law, when a In England statute provides no express penalty for contravention, such right of civil contravention is punishable as a misdemeanour.1 In Scot- always recogland, no such rule obtains. On the contrary, where in the wise in course of criminal proceedings it appears that the case Scotland. raises a mere question of civil right, it should either be dismissed, or sisted to allow of the fact being clearly ascertained. A civil remedy should be available for the redress of every civil wrong, and accordingly, in Scotland, "there is hardly any combination of circumstances, and no involution of conflicting claims either of right or of status, which may not be explicated in the Court of Session by means of an action founded on the special circumstances of the particular case, and concluding for the proper legal remedy or redress.” 4 3 58. In the case of a sale by auction Sect. 58. SALES. (1.) Where goods are put up for sale by auction in AUCTION lots, each lot is primâ facie deemed to be the subject of a separate contract of sale: (a) (2.) A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner. (b) Until such announcement is made any bidder may retract his bid: (3.) Where a sale by auction is not notified to be subject to a right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to 1 Stephen's Digest of Criminal Law, 3rd ed., p. 87. 2 Macdonald on Criminal Law, 3rd ed., p. 526. 3 "It would import us little that rights belonged to us, or that persons stood obliged to us, if there were no method by which we might make those rights effectual and attain the enjoyment of our property, or compel those who stand bound to us to perform their obligations."-Ersk. iv. 1. 1. 4 Bell's Law Dict., voce "Action." Sect. 58. Law of Scot employ any person to bid at such sale, or for the auctioneer knowingly to take any bid from the seller or any such person: Any sale contravening this rule may be treated as fraudulent by the buyer: (d) (4.) A sale by auction may be notified to be subject to a reserved or upset price, and a right to bid ↔ may also be reserved expressly by or on behalf of the seller.() Where a right to bid is expressly reserved, but not otherwise, the seller, or any one person (1) on his behalf, may bid at the auction. (a) NOTES. "Contract of sale." Defined Sects. 1 and 62 (1). As to each lot being the subject of a separate contract, see Couston, Thomson, and Co. v. Chapman1 (1872); Emmerson v. Heelis? (1809). (b) "Fall of the hammer." See COM. infra. (c) Not lawful for seller to bid. See Coм. infra, p. 265. (d) "Upset price." The words "or upset" were inserted in the bill on a suggestion from Scotland. (e) "Right to bid." This has nothing to do with "reserved price." If the right to bid is reserved, the seller or his representative may bid as often as he pleases. (ƒ) “Any one person." See COM. infra, p. 265. COMMENTARY. The law, or at least the practice, of Scotland is altered land modified. by this section in two particulars— Retracting bid. 1. It is provided [Sub-sect. (2)] that until the fall of the hammer, any bidder may retract his bid. This is consistent with the English principle that an offer may be withdrawn at any time before acceptance, even where the offerer specially agrees to keep it open for a specified time, it being held that there is no "consideration" for the 2 engagement to continue the offer till the expiry of the time Sect. 58. mentioned.1 In Scotland, effect is not given to the doctrine of "Consideration," " and therefore the offer is held to subsist in terms of the arrangement, provided the offerer" continues alive and capable of consent at the time of acceptance.” 3 In regard to auction sales, the rule in Scotland has been in conformity with an interpretation of the Roman law which is thus expressed by Moyle: "If the intention is that the highest bidder is to have the goods without reference to the relation between the amount of his bid and their real value, then the vendor is the proposer, and the contract is concluded by the making of the last bid, each bid being an acceptance conditional on no higher bid being made. . . . The best authorities on the Civil Law . . . seem to be in favour of the view that, in the absence of evidence of a contrary intention, each bid or offer is to be deemed to be withdrawn or to lapse as soon as a higher bid is made, so that the vendor can accept no bid except the highest. It also seems to be very generally held that, even where a bid is a mere offer and not a conditional acceptance, it cannot be retracted, and this is explained by assuming a tacit pactum de emendo,' or an implied undertaking that it shall not be withdrawn." 4 to bid. 2. The right of a seller to bid by himself or by any one Right of seller person on his behalf, provided such right is expressly reserved, is a novelty in the law of Scotland. The distinction, however, need not be put on higher ground than that of practice, for if sufficient intimation be made of the intention of the seller to bid by himself or by another, 1 Cooke v. Oxley (1790), 3 T.R. 653; Dickinson v. Dodds (1876), 2 Ch. D. 463. 2 Law v. Humphrey (1874), 3 Ret. 1192. 3 Bell's Com. i. 344; Bell on Sale, pp. 33, 38. See as to the English doctrine of "Consideration," Appendix III. post, p. 341. Moyle's Sale in the Civil Law, pp. 167-169. The English rule was affirmed in Payne v. Cave (1789), 3 T. R. 148 and Warlow v. Harrison (1858), 1 E. & E. 295. It 5 It was held in a Sheriff Court case, that the seller may bid if he merely holds the goods in security and has not the radical right-Hendry v. Newton, Bennie, and Co. (1874), Sh. Ct. Airdrie, Guthrie's Sel. Cas. 1st ser. 529. is submitted, however, that there is no good reason for this distinction. The rule undoubtedly applies to trustees and other fiduciaries, and, a fortiori, it should apply to a seller having a direct personal interest. |