1. This is a curious, but possibly-important, little point in connection with the United Provinces Cotton Cloth and Yarn Control Order, 1943 (hereinafter called the Order). The facts are simple. It appears from the judgment of the learned Sessions Judge that under the order it became an offence for any person, other than a manufacturer or selling agent, wholesale dealer, commission agent, retailer or hawker registered under the order, to 'sell' cotton cloth or yarn after a certain date. In this case the applicants had, prior to that date, made certain contracts for the delivery of a small number of bales of cotton. There is nothing to suggest that the contracts were not bona fide contracts and, indeed, some of the bales contracted for were actually delivered and paid for before the date when the order came into, force. There were, however, four bales which remained to be delivered after the date when the order came into force, and these were, in fact, delivered and paid for after that date. The question is whether the applicants, in delivering those four bales after the date when the order came into force, in pursuance of an antecedent contract in that behalf, 'sold' them to the purchasers in contravention of the Order, it being admitted that they had not at the date of delivery registered themselves under the Order. In short, the question is whether a 'sale' within the meaning of this provision of the Order takes place on the date on which the contract for sale is made, or does not take place until the date on which delivery in pursuance of the contract is completed.
2. The order is one which appears to regulate and control all classes of dealing in cotton and cotton yarn, both large and small. The learned Sessions Judge and the Magistrate in the Courts below for the purpose of ascertaining the meaning of the term 'sell' in the Order have each applied the test of the Sale of Goods Act, with the result that they have held that sales for the purpose of the Order cannot be said to be made until deliveries are complete. With deference, I do not share that view. What we are really considering here is whether a person-it may even be a retailer who has agreed to sell so many bales of cotton, and in pursuance of that concluded bargain later on delivers the goods, is to be taken to have sold them at the time he entered into the agreement, or at the respective times when in ones or twos he delivers the bales. In my: view, applying ordinary language, it is the time of the agreement that ninety-nine out of a hundred people would suppose to be the time at which the goods were sold. It is perfectly true that, for the technical purpose of ascertaining when property passes so as to regulate the rights of vendors and the purchasers inter se, the Sale of Goods Act has applied certain special tests as to when a sale for purposes of that Act takes place. It may well be that for other special purposes, such as insolvency, other tests might have to be applied for the purpose of ascertaining when property passes. But here we are dealing with a statutory order, which says simply that after a certain date people may not sell cotton and cotton yarn, except in a particular way. Now, there is nothing technical about that. I am, therefore, inclined to the view that the proper, way to read ordinary words in a popular order is in a popular sense and that the words 'sell' and 'sale' in such an order as this ought to be construed in that way and not technically.
3. I am fortified in this view by the only authority that I can find that has dealt precisely with such a question as this. It is true that it is an English case, but it deals with a similar point. In Lambert v, Rowe (1914) 1 K.B. 38, the English Court of Appeal had to construe the word 'sell' for the purpose of the Markets and Fairs Clauses Act, 1847. That Act prohibited the sale of any articles liable to bear toll at any places within the prescribed limits of a market, except of the payment of the toll. What happened was that a person carrying on business within a market made a contract for the purchase of pigs from a farmer outside the market. The contract was made at a farm outside the market limits where the pigs were to be killed and then delivered to, and paid for by, the vendor within the market. It was claimed that they had been sold within the prescribed limits of the market by virtue of their having been delivered there. But the Court of Appeal held that the word 'sell' was to be understood in its popular, and not in its strict legal, sense; and that the pigs were 'sold' where the agreement was made, notwithstanding that the property in them may not then have actually passed. Ridley J. says:,.On those facts the Justices found that the sale took place at Trebble's shop, and not at the appellant's house. They were of opinion that a sale within Section 13 meant a completed sale, one under which the property in the goods passes to the purchaser. But in our opinion that view is wrong. This question arises upon an Act of Parliament the use of the word 'sell' in which is, according to previous decisions, not to be construed with reference to the niceties of the law of contract of sale, or to the distinction between a sale and an agreement to sell, or to the question whether the property in the goods has passed, but is to be understood in a popular sense; and although if a lawyer were asked where the sale of these pigs took place, he might say that in the legal sense it took place at the butcher's shop because until they were delivered there and weighed the sale was not complete, any ordinary person not a lawyer, who was asked the same question would unhesitatingly say that the sale took place on 9th December at the farmer's.
Scrutton J., as he then was, held the same view. He says:
For these reasons I think the Justices in endeavouring to apply the law of the land have applied the wrong law, and that instead of reading the word 'sale' in the sense which it bears in the Sale of Goods Act they should have read it in the popular sense that it bears in the minds of the farmers.
4. With respect, I take the same view as regards the order which is now before me for construction. It is an order which says that every body, whoever he is, dealing in cotton and cotton yarn shall after a certain date sell it only in a certain way. My view is that for this purpose the word 'sell' should be construed according to its popular meaning; and that meaning is, in my opinion, that a 'sale' is made when the agreement is effected. For these reasons I regret that I am not able to agree with the learned Sessions Judge, who has not had the advantage open to me by way of argument and otherwise, I set aside the conviction and direct that the fine, if paid, shall be refunded.