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 :
See Sect. 14 ante, p. 66.

Sale" includes a bargain and sale as well as a
sale and delivery:

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
upon at the time a contract sale is made:

See Sects. 6, 7, 17, 18, 19. Where the contract is for
specific goods, it will not be fulfilled by delivery of other
goods, though of equal or superior quality.1

"Warranty" as regards England and Ireland

means an agreement with reference to goods
which are the subject of a contract of sale, but
collateral to the main purpose of such contract,
the breach of which gives rise to a claim for
damages, but not to a right to reject the goods
and treat the contract as repudiated.

As regards Scotland a breach of warranty shall be
deemed to be a failure to perform a material
part of the contract.

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.
80, contains criteria as to when a company is to be
deemed unable to pay its debts. Insolvency, in the above
definition, is "practical" as opposed to "absolute." 4
"Notour bankruptcy" applies only to Scotland. It has been
created by statute,5 and has been described as a status
indicating insolvency of a public or notorious description,
and having attached to it certain definite legal effects.
The notour bankrupt is a person who is not only in-
solvent, but whose insolvency is made known to the
public by steps of legal diligence having been taken
against him for the recovery of debt."6 Notour bank-
ruptcy is a pre-requisite of sequestration where the appli-
cation is at the instance of a creditor, and it is constituted
by sequestration where the application is at the instance
of a debtor who is not already notour bankrupt. It is
also a pre-requisite in the process of cessio bonorum. The
period within which preferences to particular creditors
may be reduced, and within which diligences by creditors

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.
ruptcy. It does not, however, of itself effect a distribu-
tion of the debtor's estates, which can only be done by
sequestration, or cessio, or under a voluntary trust-deed
or composition arrangement. In some respects it is
analogous to an act of bankruptcy in England, just as
sequestration corresponds to an adjudication of bank-
ruptcy. Partnerships may be rendered notour bankrupt,
and even public incorporated companies to the effect.
of equalising diligences,1 but such companies cannot be
sequestrated.2

(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.

SCHEDULE.

(See Sect. 60 ante, p. 268.)

This schedule is to be read as referring to the revised edition of the statutes prepared under the direction of the Statute Law Committee.