668
THE GREEN BAG
that those not sold may be returned. The author distinguishes this from the contract of sale on approval, and criticises the Sale of Goods Act which treats them together under the head of Transfer of Title by Mere Inten tion. The problem is discussed relating (i) to the effect of reputed ownership and (2) the effect of actual ownership. "The common law of Scotland in regard to reputed ownership differs materially from that of England. It was largely owing to these differences that, as already mentioned, the earlier Factors Acts were not at first supposed to apply to Scotland, and, indeed, the very case in which the House of Lords resolved the doubt had been previously decided in exactly the same manner by the Court of Session on common law grounds. This divergence be tween the laws of the two countries is of old standing, and may be traced to the different development of the law of possession of moveables. In the law of Scotland, as in that of Rome, possession was the badge of ownership. Goods could not be transferred, even in sale, without a transfer of possession; and, on the other hand, the fact of lawful possession by a person not the owner created a presumption of ownership which might be pleaded by third parties against the owner himself. This, how ever, was not the doctrine of English law. The absence of the principle of reputed owner ship in England caused much commercial in convenience, and led to legislation in at least three different directions — (i) in favor of the general creditors of the ostensible owner by means of a special provision in the English Bankruptcy Act; (2) in favor of the general creditors of the actual owner, by preventing a transference retenta possessione without regis tration under the Bills of Sale Acts; and (3) in favor of third parties dealing with the reputed owner by means of the provisions of the Fac tors Acts. "Ihe result, so far as third parties are con
cerned, may be summarized as follows: In Scotland the common law protects third par ties, such as pawnbrokers, by means of re puted ownership. It, however, gives no right to a trustee in bankruptcy acting for the general creditors of the buyer, such trustee not being a third party, but vested only in the estate of the bankrupt tantum et talc. In England, the common law, where it has any effect at all, only protects third parties by laying down a rule as to actual ownership, viz., that the property on 'sale or return' passes when the buyer adopts the transaction, e.g., when he pawns the goods. The same act which passes the property renders the tran sactions of the new owner valid, but this is subject to the intention of the parties to the original contract, and if the wholesale dealer stipulates that the property is not to pass. the stipulation will be effectual, and third parties can acquire no rights from the buyer who has never become owner. The common law rule, with its qualification as to intention, acquired statu tors- sanction in the Sale of Goods Act, 1893, and as this Act applies also to Scotland, its effect was to introduce into that country a statutory actual ownership, which, however, owing to the power of latent reservation, is of no value to third parties. Oh the other hand, the Factors Act, 1889, and the Factors (Scotland) Act, 1890, intro duced a statutory reputed ownership, which is repeated in section 25 of the Sale of Goods Act. This may in Scotland be pleaded by third parties concurrently with the common law reputed ownership which there exists, and in England it may be pleaded by itself as tak ing the place of a common law reputed owner ship." TORTS (See Jurisprudence and Negligence). WITNESSES (Expert Testimony). "Opin ions of Lay Witnesses as to Insanity " Bench and Bar (V. ii, p. 102).
