Sect. 62. merchandise. "Moveables" in Scotland, correspond to “chattels personal" in England, and "corporeal moveables” to "chattels personal other than things in action" (choses in action). "Things in action" are equivalent to "incorporeal moveables" in Scotland, and include debts, shares, scrip, bills, etc. "Industrial growing crops "1 is the Scottish equivalent for "emblements" (fructus industriales), but, possibly, the phrase though added in Committee in connection with the adaptation of the bill to Scotland, may embrace more than mere emblements," and may thus extend the scope of the original bill as applied to England and Ireland. The word "emblements appears to apply only to the ordinary produce or crop within the year of sowing,2 while "industrial growing crops" may extend to a class of property which, both in England and Scotland, partakes of the nature of both real (heritable) and personal (moveable) estate. "There is," says Benjamin, "an intermediate class of products of the soil, not annual as emblements, not permanent as grass or trees, but affording either no crop till the second or third year, or affording a succession of crops for two or three years before they are exhausted, such as madder, clover, teasles, etc.' "3 Questions, in England, on this subject, have chiefly arisen in connection with the Statute of Frauds, and it is said that "the law cannot be considered as settled." The term "industrial growing crops' seems, however, to comprehend the class of property referred to. "4 "Lien" in Scotland includes right of retention: See COм., Sect. 39 ante, p. 186. "Plaintiff” includes pursuer, complainer, claimant in a multiplepoinding and defendant or defender counterclaiming : Uniformity would have been preserved by inserting the words "in Scotland" before "pursuer," as in the case of "defender" supra, p. 284. 1 Ersk. ii. 2. 4; Bell's Com. i. 187, ii. 2 ; Bell's Prin., Sect. 1473-Grant v. Smith (1758), Mor. 9561; Elder v. Allen (1833), 11 Sh. 902. 2 Per Cur in Graves v. Weld (1833), 5 B. & Ad. 105; Stephen's Com., 10th ed. ii. 231; Williams on Executors, 9th ed. p. 625. 3 Benjamin, p. 125. Benjamin, p. 128. 66 66 66 Property" means the general property in goods, Sect. 62. and not merely a special property: See COM., Sect. 1 ante, p. 5. Quality of goods" includes their state or condition : Sale" includes a bargain and sale as well as a See Sect. 1 note (a) ante, p. 2, and Coм. ante, p. 4. "Seller" means a person who sells or agrees to sell 66 goods: Specific goods" mean goods identified and agreed See Sects. 6, 7, 17, 18, 19. Where the contract is for "Warranty" as regards England and Ireland means an agreement with reference to goods As regards Scotland a breach of warranty shall be See Sects. 11 and 53, and COм., Sect. 11 ante, p. 52. (2.) A thing is deemed to be done "in good faith' 1 Allason v. Watson (1757), Mor. 14246; Thomson Brors. v. Thomson (1885), 13 Ret. 88. Sect. 62. within the meaning of this Act when it is in fact done honestly, whether it be done negligently or not. The same definition forms Sect. 90 of the Bills of Exchange Act 1882.1 It seems confirmed by the House of Lords judgment in Derry v. Peek2 (1889). See Coм., Sect. 61 ante, p. 272. (3.) A person is deemed to be insolvent within the meaning of this Act who either has ceased to pay his debts in the ordinary course of business, or cannot pay his debts as they become due, whether he has committed an act of bankruptcy or not, and whether he has become a notour bankrupt or not. See Sects. 39, 41, and 44. The Companies Act 1862, Sect. 1 45 & 46 Vict. c. 61. See Jones v. Gordon (1877), 2 App. Ca. 616.-Per Lord Blackburn at p. 628. 3 25 & 26 Vict. c. 89. 2 14 App. Ca. 337. See Goudy on Bankruptcy, p. 18. 5 1696, c. 5; 19 & 20 Vict. c. 79, Sects. 7, 8, 9; 43 & 44 Vict. c. 34, Sect. 6. 6 Goudy on Bankruptcy, p. 65. are equalised, is reckoned from the date of notour bank- Sect. 62. (4.) Goods are in a "deliverable state within the meaning of this Act when they are in such a state that the buyer would under the contract be bound to take delivery of them. See Sects. 18 and 29. Compare "fit or ready for delivery" in Sect. 4 (2). 63. This Act shall come into operation on the Sect. 63. first day of January one thousand eight hundred COMMENCEand ninety-four.(«) MENT. NOTE. (a) Owing to unexpected delay in adjusting the respective amendments of the Lords and the Commons, the date for commencement fixed in the bill had passed before the Royal Assent could be obtained. The date could not be altered without a new bill, and thus the Act became unintentionally retrospective. Royal Assent was given on 20th February 1894. 64. This Act may be cited as the Sale of Goods Sect. 64. Act 1893. 1 Clarke v. Hinde, Milne, and Co. (1884), 12 Ret. 347. 2 Standard Invest. Co. v. Dunblane Hydro. Co. (1884), 12 Ret. 328. U SHORT TITLE. |