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Landlord and

Tenant (Market Garden).

CH. XII. s. 12. or business, and also all fruit trees and fruit bushes planted by him and not permanently set out; and he is also entitled to compensation at the end of the tenancy on quitting his holding, for the planting of fruit trees and bushes permanently set out, of strawberry plants, of asparagus, of rhubarb, and of other vegetable crops which continue productive for two or more years, and also for the erection or enlargement of buildings for the purpose of his trade or business (x).

At common law.

Under Dis

tress for Rent Act, s. 14.

If there be a demise it must, in general, be produced. Contract express or implied.

Plaintiff can recover only

according to the contract.

Entry by defendant

necessary.

SECT. 13.-The Action for Use and Occupation.

Debt for use and occupation lay at common law, and was not defeated by proof of a demise not under seal (y). And under the Distress for Rent Act, 1737, 11 Geo. 2, c. 19, s. 14, the landlord may in all cases maintain an action for the use and occupation of the premises, unless there be a demise thereof under seal (z).

Where the demise is in writing, it must still, generally speaking, be produced and proved by the plaintiff at the trial, in order to show the terms of the tenancy (a).

The action is founded upon contract, and unless there be a contract, express or implied, between the parties, it cannot be maintained (b). When, therefore, there is no evidence of a demise to the defendant, there must be some evidence that he held by permission of the plaintiff, and on the terms either express or implied, that he was to pay the plaintiff for the occupation (c). And accordingly, where the person in possession of the land is a mere trespasser, the plaintiff cannot waive the trespass and sue for use and occupation (d).

Where there is a contract, the plaintiff can recover only according to the contract (e).

Entry by the defendant is necessary for the plaintiff to maintain the action (ƒ) except that entry by a testator will support an action against his executor.

(x) Agricultural Holdings Act, 1900 (63 & 64 Vict. c. 50, s. 1), and Sched. I., Part III.

(y) Gibson v. Kirk (1841), 1 Q. B. 850. (z) See, however, as to tenancy from year to year by holding over after an expired lease, Hyatt v. Griffiths (1851), 17 Q. B. 505, and other cases, p. 314, ante.

(a) Brewer v. Palmer (1800), 3 Esp. 213; recognised in Ramsbottom v. Tunbridge (1814), 2 M. & S. 434; 15 R. R.

303.

(b) See Churchward v. Ford (1857), 2 H. & N. 466; Sloper v. Saunders (1860), 29 L. J., Ex. 275; per Ashhurst, J., Birch v. Wright (1786), 1 T. R. 378;

per Bayley, J., Hall v. Burgess (1826), 5 B. & C. 332.

(c) Per Hill, J., Levi v. Lewis (1861), 9 C. B., N. S. 872; and see Salmon v. Matthews (1841), 8 M. & W. 827, 833.

(d) Tew v. Jones (1844), 13 M. & W. 12; and see per Cur., Hellier v. Sillcox (1850), 19 L. J., Q. B. 295; Turner v. Cameron's C. S. C. Co. (1850), 5 Exch. 932, 937.

(e) Collett v. Curling (1847), 10 Q. B. 485.

(f) Per Patteson, J., Woolley v. Wat ling (1836), 7 C. & P. 610; Edge v. Strafford (1831), 1 C. & J. 391; How v. Kennett (1835), 3 A. & E. 659.

CHAPTER XIII.

CONTRACTS FOR SALE OF GOODS.

[See Blackburn on Sale, 2nd ed., A.D. 1885; Benjamin on Sale, 5th ed., A.D. 1904; Story on Sales of Personal Property, 4th ed., A.D. 1871; Chalmers on the Sale of Goods Act, 2nd ed., A. D. 1894; Newbolt's Sale of Goods Act, A.D. 1894: Chitty's Statutes, tit. "Goods."]

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General
Savings.

Sect. 61.
Bankruptcy.

Principal and agent, fraud on.

SECT. 1.-The Scope of the Sale of Goods Act.

(a) Generally.

THE Sale of Goods Act, 56 & 57 Vict. c. 71 (a), has to a very great extent codified the law relating to the sale of goods, as previously gathered from some hundreds of decisions and two or three comparatively unimportant statutory enactments, such as the 17th section of the Statute of Frauds (ante, p. 77), and some scores of decisions thereon. The Act contains few patent alterations of the law.

(b) Continuance of Common Law Rules, and particular Statutes.
Like its predecessors in codifying, the Bills of Exchange Act,
1882, and the Partnership Act, 1890, the Sale of Goods Act is not
exhaustive, the 61st section of the Act declaring that—
(1) The rules in bankruptcy relating to contracts of sale shall continue
to apply thereto, notwithstanding anything in this Act contained.
(2) The rules of the common law, including the law merchant, save in so
far as they are inconsistent with the express provisions of this Act,
and in particular the rules relating to the law of principal and agent
and the effect of fraud, misrepresentation, duress or coercion, mistake,

(a) The Act, by sect. 63, came into operation on 1st January, 1894, and did not receive the royal assent till 20th February,

1894; but by sect. 64 it may be cited as "The Sale of Goods Act, 1893.".

or other invalidating cause, shall continue to apply to contracts for the CH. XIII. s. 1. sale of goods.

Scope of Sale of Goods Act. Bills of sale. Special acts. Mortgages,

(3) Nothing in this Act or in any repeal effected thereby shall affect the enactments relating to bills of sale, or any enactment relating to the sale of goods which is not expressly repealed by this Act. (4) The provisions of this Act relating to contracts of sale do not apply to any transaction in the form of a contract of sale which is intended to operate by way of mortgage, pledge, charge, or other security. (5) Nothing in this Act shall prejudice or affect the landlord's right of Hypothec in hypothec or sequestration for rent in Scotland.

These general savings are very wide.

&c.

Scotland.

The General
Savings by

The principal rules in bankruptcy, saved by sub-sect. 1, may be sect. 61. found in sects. 37, 44 (2), 48 and 55 of the Bankruptcy Act, 1883, 46 & 47 Vict. c. 52.

The general saving for the rules of the common law, including the law merchant, and the law of principal and agent, fraud, misrepresentation, duress, mistake, " or other invalidating cause," is a very comprehensive and indefinite one.

As to principal and agent, see ante, Ch. IX. and post, Ch. XIX., sect. 5.

As to duress, see ante, p. 169.

As to mistake, see post, Ch. XXVII.

As to avoidance of contract for illegality, see post, p. 361, and

Ch. XXI.

Rules of common law,

&c.

The specific savings for the Bills of Sale Acts and "any Bills of sale. enactment relating to the sale of goods" not expressly repealed by the Sale of Goods Act itself, are very comprehensive too, but being savings for statute law only are definite. The Bills of Sale Acts are the Bills of Sale Acts, 1878, 1882, 1890, and 1891, the Act of 1878 requiring and regulating registration of instruments authorising the seizure of personal chattels as security for money, and the Act of 1882 requiring, amongst other things, that such instruments must be in a particular form scheduled to that Act.

Amongst the numerous other enactments relating to the sale of goods not expressly repealed by the Sale of Goods Act, may be mentioned the Sale of Food and Drugs Act, passed for the prevention of adulteration, the Chain Cables and Anchors Acts, passed to ensure the strength of chain cables, and sect. 182 of the County Courts Act, 1888, whereby no action may be brought in any Court for the price of beer consumed on the premises where sold.

&c.

The principal contracts intended to operate by way of mortgage, Mortgagees, pledge, &c., which are referred to and saved by sub-sect. 4, appear to be those which are dealt with by the Factors Act, 1889, or the Pawnbrokers Act, 1872.

The Scots law of hypothec is like the law of distress.

Hypothec.

C.C.

22

CH. XIII. s. 1.

Scope of Sale

of Goods Act.

Act through out United Kingdom.

(c) Scotland and Ireland.

The Act applies to the whole of the United Kingdom with a few Application of savings (see sects. 4 (4), 11 (2), 52, 59, 61 (5), for the Scots law, of which sect. 4 (4) as to the sale of goods for 10l. or more is the most important). The Statute of Frauds neither did nor does apply in Scotland, and the provisions of the 4th section of the Act, which re-enacts the 17th section of the Statute of Frauds (copied in sect. 13 of the Irish Statute of Frauds, 7 Will. 3, c. 12, which is not repealed by the Act), requiring sales for 10l. or more to be in writing, do not apply in Scotland either.

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(d) Repeals effected by the Act.

The only enactments expressly repealed by the Act (sect. 60)

are:

An Act against brokers, already repealed as to Great Britain by the Pawnbrokers Act, 1872.-Sects. 15 and 16 of the Statute of Frauds (commonly cited as sects. 16 and 17, reproduced in sect. 26, p. 350, and in sect. 4 (1), p. 340).— Sect. 7 of 9 Geo. 4, p. 14, reproduced in sect. 4 (2), p. 341.-Sects. 1—5 of the Mercantile Law Amendment (Scotland) Act, 1856-Sects. 1 and 2 of the Mercantile Law Amendment Act, 1856, reproduced in sect. 26, p. 350, and sect. 52, p. 359.

(e) Definitions.

The following is the interpretation clause of the Act (sect. 62), which applies "unless the context or subject-matter otherwise requires":

(1) "Action" includes counterclaim and set-off, and in Scotland condescendence and claim and compensation:

"Bailee" in Scotland includes custodier:

"Buyer" means a person who buys or agrees to buy goods: "Contract of sale" includes an agreement to sell as well as a sale: "Defendant" includes in Scotland defender, respondent, and claimant in a multiplepoinding:

"Delivery" means voluntary transfer of possession from one person to another:

"Document of title to goods" has the same meaning as it has in the Factors Acts: [i.e., it includes any bill of lading, order for delivery of goods, &c. : see p. 236 (t) for full definition].

"Factors Acts" mean the Factors Act, 1889, the Factors (Scotland) Act, 1890, and any enactment amending or substituted for the same:

"Fault" means wrongful act or default:

"Future goods means goods to be manufactured or acquired by the seller after the making of the contract of sale:

"Goods" include all chattels personal other than things in action and money, and in Scotland all corporeal moveables except money. The term includes emblements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale:

"Lien" in Scotland includes right of retention.

"Plaintiff" includes pursuer, complainer, claimant in a multiplepoinding, and defendant or defender counterclaiming :

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