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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 or sequestration for rent in Scotland.
62.—(1.) In this Act, unless the context or Interpretation subject matter otherwise requires--
“ 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 multiple-poinding :
Delivery” means voluntary transfer of possession from one person to another :
These definitions are taken from the Bills of Exchange Act, 1882.
“ Document of title to goods” has the same meaning that it has in the Factors Acts :
“ Factors Acts mean the Factors Act, 1889, 52 & 53 Viet. the Factors (Scotland) Act, 1890, and any enact- 53 & 5.1 Vict.
54 ment amending or substituted for the same:
“ Fault” means wrongful act or default :
“Future goods” mean 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 :
In the Bankruptcy Act, 1883, “ goods” includes all chattels personal.
things in action, e.g. scrip, shares, bills, notes, and cheques.
“ Lien” in Scotland includes right of retention :
“Plaintiff” includes pursuer, complainer, claimant in a multiple-poinding, and defendant or defender counterclaiming :
“Property” means the general property in goods, and not merely a special property :
In Sewell v. Burdick (10 App. Ca., at p. 93), Lord Blackburn distinguished between “a” property in pledged goods which passes to the pledgee, and “the” property which does not pass.
Quality of goods” includes their state or condition :
“ Sale” includes a bargain and sale as well as a sale and delivery :
“ Seller” means a person who sells or agrees to sell goods :
Specific goods” mean goods identified and agreed upon at the time a contract of sale is made :
“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.
“A warranty is an express or implied statement of something which the party undertakes shall be part of a contract yet collateral to the express object of it.” Per Lord Abinger, in Chanter v. Hopkins? (patent boiler for brewery).
(2.) A thing is deemed to be done in “ good faith” within the meaning of this Act when it is in fact done honestly, whether it be done negligently or not.
This is analogous to the result of Derry v. Peek,” which disposed of “legal fraud” (a phrase invented to signify something that is not “moral” fraud), and settled that a false statement made through carelessness, and without reasonable ground for believing it to be true, may be
14 M. & W. 399, 404 ; 1 H. & H. 377 ; 3 Jur. N. S. 58. (1838.]
? 14 App. Cas. 337; 58 L. J. Ch. 864 ; 61 L. T. 265; 38 W. R. 33 ; 54 J. P. 148. [1889.
evidence of fraud, but does not necessarily amount to fraud.
(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.
In Reader v. Knatchbull) it was held that an inability to pay for goods was such an insolvency as discharged a party from an agreement. In Parker v. Gossage the Court of Exchequer interpreted the expression to mean a general inability to pay debts, and in Biddlecombe v. Bond 3 the judges refused to reduce the meaning to taking the benefit of the Act for Relief of Insolvent Debtors. In Bilton v. Crofts,* a recital in a deed of inability to pay debts in full was held to be conclusive evidence of insolvency.
Notour: well-known, notorious. Bankruptcy, according to the law of Scotland, is public or notorious insolvency. When a debtor in an obligation cannot fulfil his obligation as undertaken-a position which constitutes insolvency --and makes public acknowledgment in manner determined by statute of his inability, the status or condition of bankruptcy has arisen, and the insolvent debtor, is in the language of the statutes, a “notour” bankrupt.
(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.
1 Cited in Tooke v. Hollingsworth, 5 T. R. at p. 218. [1793.] ? 2 C. M. & R. 617 ; 1 Tyr. & G. 105 ; 1 Gale, 288. 3 4 A. & E. 332. [1835.] 4 L. R. 15 Eq. 314. [1873.]
63.—This Act shall come into operation on the Commencefirst day of January, one thousand eight hundred and ninety-four.
Owing to unexpected delays, this Act did not receive the Royal assent until February 20th, 1894, so its operation was unintentionally retrospective.
64.—This Act may be cited as the Sale of short title. Goods Act, 1893.