This action may also be maintained, without attornment or acknowledgment of title, upon the statute 4th & 5th Anne, c. 16, ss. 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 (a). And the grantee of an annuity charged on the land, after notice to the tenant, may also recover rent from the latter in an action for use and occupation (b). So a mortgagee may, after notice to the tenant, maintain an action for use and occupation to recover rent accruing after the mortgage, if the tenancy were created before the mortgage (c); but not where the demise is made by the mortgagor subsequently to the mortgage (d). But it seems that use and occupation does not lie on a parol demise by the assignee of the reversion against the lessee, for the occupation which took place prior to the assignment of the reversion (e).

This action is, in general, founded upon a contract, without which, either express or implied, between the parties, the action cannot be maintained (ƒ); and we have seen that no contract will be implied in favour of one who is not clothed with the legal estate (g). But a contract may be inferred from evidence of title and occupation (h). This is not, however, a proper form of ac

(a) Lumley v. Hodgson, 16 East, 99; Rennie v. Robinson, 1 Bing. 147; 7 Moore, 539, S. C.

(b) Birch v. Wright, 1 T. R. 378; Moss v. Gallimore, Dougl. 279.

(c) Ante, 327, 328; Moss v. Gallimore, Dougl. 279; Rawson v. Eicke, 2 Nev. & P. 423; Rogers v. Humphreys, 4 Ad. & E. 299.

(d) Id.; Evans v. Elliott, 1 P. & Dav. 256; though in an action against a tenant by his landlord, the former may, under a plea of non-assumpsit, show that the occupation was subsequent to a notice from a mortgagee (who had been so before defendant's entry), to pay rent to him; but where the notice is also to pay arrears for occupation ulterior to the notice, the payment, in pursuance of such notice, must be specially pleaded; Waddilove v. Barnett, 2 New Cases, 541; Brook v. Biggs, id. 672; 2 Scott, 803, S. C.; and see Joh Jones, 1 P. & Dav. 651.

(e) Mortimer v. Preedy, 3 Mee. & W. 602.

(f) 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. But see per Patteson, J., in Church v. Imperial Gas Light and Coke Company, 6 Ad. & E. 854; 3 Nev. & P. 40, that use and occupation may arise from a waiver of tort, or from simply letting into possession. And see Mayor of Newport v. Sunders, 3 B. & Ad. 411, where it was held that assumpsit lies by the owner of a market for stallage, without showing any contract in fact between him and the occupier of the stall.

Nor does use and received, lie where

tion for the discussion of a doubtful title (i). occupation, or assumpsit for money had and a wrongful claimant adversely receives rent (k). The declaration may be in assumpsit or debt. In each the venue is transitory, and it is unnecessary to state where the premises lie (l).

SECTION II.

RESPECTING PERSONAL PROPERTY.

I. 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, and of Sales in Market Overt.

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 Pay

ment.

(4.) Of the Contents and Signature of the Memorandum.

3. Of fraudulent Sales.
4. Of illegal Sales.

5. Of the Rights of the Vendor.
6. Of the Rights of the Vendee.
II. Of a Warranty upon the Sale of
Goods.

III. Of Contracts for Work and Mate-
rials. (See post, 4th Section.)
IV. Of a Contract for a Composition
in lieu of Tithes.

V. Of Bailments; and herein of Cur

riers.

VI. Of Wagers.

VII. Of Guarantees and Indemnities.

I. Of Contracts for the Sale and Exchange of Goods (m).

1. IN GENERAL, &c.

A SALE or EXCHANGE is a transmutation of property from one man to another, in consideration of some price or recompense in value (n). The difference between a sale and exchange

(i) Woodfall, by Harrison, 627, cites MS. Hil. Term, 37 Geo. 3.

(k) Clarance v. Marshall, 2 C. & M. 495; 4 Tyr. 147, S. C.

(1) 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; and see Egler v. Marsden, 5 Taunt. 28; Wilkins v. Wingate, 6 Term R. 62; 1 Chitty Pl. 6th ed. As to evidence, see Stevens v. Lynn, 8 Car. & Payne, 389.

(m) See Ross on Vendors and Purchasers; Long on Personal Property; 3 Chitty Commercial Law, 272.

(n) Noy's Max. c. 42; Shep. Touch. 224; Denn v. Diamond, 4 B. & C. 246; 6 D. & R. 331, S. C. A sale imports a purchase. As to the difference between goods sold and work and materials, see per Parke, B., in Pinner v. Arnold, 2 C., M. & R. 616; 1 Gale, 271; 1 Tyr. & G. 1, S. C. ¡ and ante, 132, note (g).

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 (0).

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 (p).

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 (q).

"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 (r) (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 (s)."

So in Noy's Maxims (t) 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

(0) See 2 Bla. C. 446, 447; Anon. 3 Salk. 157. In general a contract of 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.

(q) See in general 2 Stark. Evidenee, 890, 2nd ed.; Gillett v. Hill, 2 C. & M. 535, per Bayley, B.; per Park, J., Dixon v. Yates, 5 B. & Ád. 340; but see Bailey v. Culverwell, 2 Man. & Ry. 566, in notes.

(r) As to earnest in general, see post 396.

(s) Shep. Touch. 224; Hinde v. Whitehouse, 7 East, 558, 571, per Ld. Ellenborough; Tarling v. Baxter, 6 B. & C. 360; Com. Dig. Biens, (D)

3.

(t) Page 88; see also Hinde v. Whitehouse, 7 East R. 571.

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 (i. e. for goods bargained and sold) for my money, because by the bargain the property was in the buyer."

The rule appears to be, that where there is a sale of goods generally (as distinguished from the sale of a specific chattel), no property in them passes till delivery, because until then the very goods sold are not ascertained; but where by the contract itself the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel, and to pay the stipulated price, the parties are then in the same relation as they would be after a delivery of goods in pursuance of a general contract. The very appropriation of the chattel is equivalent to delivery by the vendor; and the assent of the vendee to take the specific chattel, and to pay the price, is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the property in the bargainee (u).

There is, however, this diversity when the day of payment is 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 (x).

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 (y). But even where nothing is specified as to delivery or payment, although every thing may be done to divest the property out of the vendor, so as to throw the risk on the vendee; still there results to the vendor out of the

(u) Per Parke, J., Dixon v. Yates, 5 B. & Ad. 340.

(x) Per Curiam, Dyer, 30 a.
(y) Clarke v. Fell, 1 N. & M. 244;

and see per Bayley, B., in Miles v. Gorten, 2 C. & M. 504, 511; 4 Tyr. 295, S. C., and post.

original contract a right to retain the goods until payment of the price.

The right of property (and risk) may thus be in the vendee; the right of possession in the vendor. In Tarling v. Baxter (z), 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 (a).

We must, however, advert in these cases to the Statute of Frauds; if the bargain be not conformable with its enactments, which we shall presently notice, it is void, and no property passes.

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, either to distinguish the goods or ascertain the price thereof (b).

The cases on the subject may be divided into two classes; one in which there has been a sale of goods and something remains to be done by the vendor, and until that is done the property does not pass to the vendee so as to entitle him to maintain trover. The other class is where there is a bargain for a certain

jusqu'à ce qu'elles soient pesées, comptées, ou mesurées; mais l'acheteur peut en demander ou la delivrance ou des dommages-intèrêts, 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 choses que l'on est dans l'usage de goûter avant d'en faire l'achat, il n'y a point de vente tant que l'acheteur ne les a pas goûtés et agréés."