by the plaintiff at the trial, duly stamped as a demise. This subject has been already considered (ƒ). The common count for use and occupation is maintainable, although the defendant, to whom the premises were let, did not himself occupy them, but let them to another person (g); or they were occupied only by the servants of the defendant (h). Where the tenant is bound to pay the rent, notwithstanding the destruction of the premises by fire, &c., it is recoverable, even before the premises are rebuilt, by this general form of action (i). Actual occupation is not necessary; a legal or constructive possession suffices (k). This action may also be maintained, without attornment or acknowledgment of title, upon the statute 4th & 5th Anne, c. 16, s. 9, 10, by the trustees of one whose title the tenant (the defendant) had notice of, before he paid over his rent to his original landlord; although the tenant had no notice of the legal estate being in the plaintiff on the record (). And the grantee of an annuity charged on the land; or a mortgagee; after notice to the tenant (m), may also recover rent from the latter, in an action for use and occupation (n). This action is founded upon a contract and unless there be a contract, express or implied, between the parties, the action cannot be maintained (o). Nor is this a proper form of action for the discussion of a doubtful title (p). The declaration may be in assumpsit, or debt. In each the venue is transitory, and it is unnecessary to state where the premises lie (q). (0) Birch v. Wright, 1 T. R. 378, 387; per Bayley, J., Hall v. Burgess, 5 B. & C. 333. See Soulsby v. Neving, 9 East, 310. (P) Woodf. by Harrison, 660, cites MS. Hil. Term, 37 G. 3. (q) King v. Fraser, 6 East, 348. As to a mistake in this respect, Kirkland v. Pounsett, 1 Taunt. 570; Doe v. Salter, 13 East, 9; 1 Chitty Pl. 5th ed. 308, 309, 310. SECTION II. RESPECTING PERSONAL PROPERTY. 1. Of Contracts for the Sale and Exchange of Goods. 1. In general. Of the nature of the Contract; and when the Property in the Goods is thereby altered: -Of a Sale by a wrongful Possessor. 2. Of the Statute of Frauds as it affects an agreement for the Sale of Goods. 1. In general. 2. Of a part Delivery and Acceptance. 3. Of Earnest or part Payment. 4. Of the Contents and Signature of the Memorandum. 3. Of fraudulent Sales. 4. Of illegal Sales. 5. Of the Rights of the Vendor. 5. Of the Rights of the Vendee. 2. Of a Warranty upon the Sale of Goods. 3. Of Contracts for Work and Materials. (See post, 4th Section). 4. Of a Contract for a Composition in lieu of Tithes. 5. Of Bailments: and herein of Carriers. 6. Of Wagers. 7. Of Guarantees and Indemnities. 1. Of Contracts for the Sale and Exchange of Goods (r). 1. IN GENERAL, &c. A SALE OF EXCHANGE, is a transmutation of property from one man to another, in consideration of some price or recompense in value (s). The difference between a sale and exchange is this: the former is a transferring of goods for money; the latter for goods, by way of barter. In either case the same rules of law are prescribed for regulating the transaction (†). (r) See Ross on Vendors and Purchasers; Long on Personal Property; 3 Chitty Commercial Law, 272. (s) Noy's Max. c. 42; Shep. Touch. 224; Denn v. Diamond, 4 B. & C. 246; 6 D. & R. 331, S. C. (1) See 2 Bla. C. 446, 447; Anon. 3 Salk. 157. In general, a contract of To constitute a valid contract for the sale of goods, it must, in general, be mutually binding when entered into. This rule, and its exceptions, have been already fully considered (u). When the Property in Goods is altered by the Sale.—It is certain that, merely by the bargain, the property in the goods may be altered. "If one sell me his horse, or any other thing, for money, or other valuable consideration; and (first) the same thing is to be delivered to me at a day certain, and by our agreement, a day is set for the payment of the money; or (secondly) all or (thirdly) part of the money is paid in hand, or (fourthly) I give earnest money (x), (albeit it be but a penny), to the seller; or (lastly) I take the thing bought by agreement into my possession, where no money is paid, earnest given, or day set for the payment; in all these cases there is a good bargain and sale of the thing to alter the property thereof. In the first case, I may have an action for the thing, and the seller for his money: in the second case, I may sue for and recover the thing bought in the third, I may sue for the thing bought, and the seller for the residue of the money in the fourth case, where earnest is given, we may have reciprocal remedies one against another: and, in the last case, the seller may sue for his money (y)." So, in Noy's Maxims (z), it is said, "If I sell my horse for money, I may keep him until I am paid; but I cannot have an action of debt until he is delivered; yet the property of the horse is, by the bargain, in the bargainor or buyer. But if he do presently tender me my money, and I do refuse it, he may take the horse, or have an action of detainment. And if the horse die in my stable between the bargain and the delivery, I may have an action of debt for my money, because, by the bargain, the property was in the buyer." There is, however, this diversity when the day of payment is exchange should be declared upon specially where the action is to recover damages for not delivering, &c.: but where A. agreed to give a horse, warranted sound, in exchange for a horse of B., and also a sum of money; and the horses were exchanged, but B. refused to pay the money; it was held that the money might be recovered upon the common count, for horses sold and delivered; Sheldon v. Cox, 3 B. & C. 420; 5 D. & R. 277,S. C. (u) See ante, 11 to 13. (x) As to earnest in general, see post. (y) Shep. Touch. 224; Hinde v. Whitehouse, 7 East, 558, 571, per Lord Ellenborough; Tarling v. Baxter, 6 B. & C. 360; Com. Dig. Biens, (D) 3. (z) Page 88; see also Hinde v. Whitehouse, 7 East R. 571. limited, and when not: in the first case, the contract is good immediately, and an action lies upon it without payment; but in the other, not so: as, if a man buy of a draper twenty yards of cloth, the bargain is void if he do not pay the money, at the price agreed upon, immediately; but if the day of payment be appointed by agreement of the parties, in that case one shall have his action for the money, and the other for not delivering the cloth (a)." If a party undertake to repair a carriage for his creditor, upon the terms that he should be paid ready money for the repairs; the debtor has a lien on the carriage for the price of the repairs, for the creditor cannot effectually claim the carriage on a mere offer to set off his debt against the price (b). The right of property (and risk) may thus be in the vendee; the right of possession in the vendor. In Tarling v. Baxter (c), A., on the 4th of January, agreed to sell to B. a stack of hay, for 1457., payable the 4th of February; the same to be allowed to stand on A.'s premises, until the 1st of May. B. stipulated that the hay should not be cut until paid for. It was held, that this was a contract for an immediate, not a future sale, and that the property in the hay passed by it immediately to the vendee; and that the same having been subsequently destroyed by fire, the loss fell upon him. If two are agreed upon the price, and the buyer departs without tendering the money, and comes the next day and tenders it, the other may refuse; for he is not bound to wait, unless a day of payment was agreed between them (d). We must, however, advert in these cases to the Statute of Frauds. If the bargain be not conformable with its enactments, it is void, and no property passes. As to the Sale of Goods, part of a larger bulk :-Although a contract for the sale of goods, be complete and binding in other respects, the property in them remains in the vendor, and they are at his risk, if any material acts remain to be done, before the delivery, to distinguish or ascertain the price thereof. In other (a) Per Curiam, Dyer, 30 a. (b) Clarke v. Fell, 1 N. & M. 244. (e) 6 B. & C. 360. Agreement to take premises, and buy fixtures, &c., at a valuation, where the property in the latter vests; Clayton v. Burthenshaw, 5 B. & C. 41, 46. (d) Bro. Ab. Contract, pl. 26; 5 Vin. Ab. 515. words, where a portion of an entire bulk of goods is sold, the contract is incomplete, and no property in any one particular portion passes, if such part be not in its nature distinguishable or ascertainable, without weighing, &c.; and it has not been distin guished and separated from the entire quantity (e). Therefore, where several bales of skins, (stated in the contract to contain five dozen in each bale), were sold at a certain sum per dozen; and it was the duty of the seller to count over the skins, to see how many each bale actually contained, but before any enumeration took place, the whole were consumed by fire; Lord Ellenborough, and Sir James Mansfield, held that an action could not be maintained against the purchaser, for the value of the skins, and that the loss fell entirely upon the seller (ƒ). So where it appeared, that on the sale of oil, it is the custom, before the delivery, for the casks to be searched by the seller's cooper; and for a broker, on behalf of both parties, to ascertain the foot dirt and water in each, (for which allowance was to be made), and then the casks were to be filled up by the seller's cooper at their expense; it was held, that till such acts were done, and such delivery was made, the contract was not complete to pass the property, and the vendor might, on the insolvency and subsequent bankruptcy of the buyer, countermand the sale (g). The same rule holds in the case of a sale of ten out of twenty tons of flax, the same being in mats of an unequal size and quantity (h) ; or of so many tous of a larger quantity of oil (i). And although the subject matter of the sale be clearly ascertained, yet if the price cannot be calculated until both parties have weighed the (e) By the French law, Code Civil, liv. 3, tit. 6, c. 1, art. 1585, 1586, 1587. 66 Lorsque des marchandises ne sont pas vendues en bloc, mais au poids, au compte, ou à la mesure, le vente n'est point parfaite, en ce sens que les choses vendues sont aux risques du vendeur jusqu'à ce qu'elles soient pesées, comptées, ou mesurées; mais l'acheteur peut en demander ou la délivrance ou des dommages-intérêts, s'il y a lieu, en cas d'inexécution de l'engagement. Si, au contraire, les marchandises ont été vendues en bloc, la vente est parfaite, quoique les marchandises n'aient pas encore été pesées, comptées, ou mesurées. A l'egard du vin, de l'huile, et des autres (f) Zagury v. Furnell, 2 Camp. 240, 242, n. And see Hanson v. Meyer, 6 East, 614; Rugg v. Minett, 11 East, 210. (g) Wallace v. Breeds, 13 East, 522. (h) Busk v. Davis, 2 M. & Sel. 397; Shepley v. Davis, 5 Taunt. 617; see Austen v. Craven, 4 Taunt. 644. (i) White v. Wilks, 5 Taunt. 176; 1 Marsh. R. 258, S. C. |