party to whom they are to be delivered. Thus, where a manufacturer deposited goods with a wharfinger at Stockton, to be shipped to the defendant's wharf in London, and took the wharfinger's receipt, describing the goods, and indorsed upon it an order upon the defendants to deliver the goods on their arrival to the plaintiffs, who had advanced money upon them, and the plaintiffs sent the receipt and the delivery order to the defendant, who accepted and retained possession thereof, stating that the goods had not arrived, but that when they did they should be forwarded to the plaintiffs; it was held, that the defendants, having thus assented to the order, and recognised the plaintiff's title to the goods, could not afterwards dispute it, and that when the goods came into their hands, they were bound to deliver them to the plaintiffs. (n)

And it has been held that there was an executed delivery, and consequent consummation of the contract of sale, in the following cases.

The defendants, who were auctioneers, sold by auction two ricks of hay, the produce of certain crops which had been distrained by a landlord for rent. By the conditions of sale the hay was to be removed by and at the expense of the purchaser, and the time specified for its removal being considered too short, the tenant, on the morning of the sale, gave a written permission for the hay to remain on the land for a longer period. The price of the hay was paid at the time of the sale, and a few days afterwards the purchaser received from the auctioneers a written order, addressed to the tenant, requiring him to permit the purchaser to remove the hay, but the tenant then refused, and would not suffer him to come upon the land to take it. The purchaser then brought an action against the defendants for the non-delivery, and the defendants pleaded that they did deliver possession to the plaintiff; and it was held, that this plea was supported by the facts, and constituted a defence to the action. The permission given by the tenant for the hay to remain on the land for the convenience of the purchaser, amounted, it was observed, to an attornment from the tenant to the purchaser, and was equivalent to an express undertaking on the part of the tenant to hold the hay for the purchaser's use and at his disposal, and that there had been an executed delivery, "just as if the auctioneer had, after the sale, in the tenant's presence, pointed out the rick to the purchaser, and the tenant had assented to the delivery. The tenant's subsequent refusal to permit the purchaser to carry away the hay, cannot affect the vendor. The plaintiff might have maintained trover against the tenant for detaining the hay!" (0)

(n) Holl v. Griffin, 3 M. & Sc. 732; 10 Bing. 246, s. c.

(0) Salter v. Woollams, 3 Sc. N. R. 65, 67. See Coe v. Clay, 3 M. & P. 57; 5 Bing. 440,

A number of bales of bacon lying at a wharf were sold and weighed by the vendor, and set apart for the purchaser, and the price was fixed, and was to be paid by bill at two months; and an order was given to the wharfinger to deliver the goods to the purchaser, who went to the wharf, and presented the order, and with the assent of the wharfinger took possession of them, and weighed the whole, and took away part, but became bankrupt before he had removed the residue, whereupon the vendor countermanded the delivery order; it was holden that the order having been executed, and the goods actually delivered under it to the purchaser, they had irrecoverably become the property of the latter, and the vendor had no more to do with them afterwards than a perfect stranger, and could not consequently countermand the order, and prevent the purchaser from taking away the residue remaining in the hands of the wharfinger. (p)

The owner of a quantity of timber which had been felled, entered into the following contract for the sale of a portion of it :-" Bargained and sold Mr. George Jenkins, all the ash at Garmelow, at the price per foot cube, say 1s. 7d. Payment on or before the 29th September, 1834. The above George Jenkins to have power to convert on the land. The timber is now felled."-Six or eight of the trees were measured on the 27th December, and taken away by Jenkins, and shortly afterwards the remainder of the trees were marked and measured, the number of cubic feet in each tree being ascertained, but the total contents were not summed up. Jenkins removed several of the trees, but before the bulk of them was carried away, he became insolvent, whereupon the vendor went and took possession of the residue of the timber, but it was held that he had no right to do so.

"It appears to me, "observes Tindal, C. J., " that the delivery of the timber to the purchaser was, under the circumstances, complete. At the time of the contract the trees were cut down and lying on the land, and the purchaser was to be at liberty to convert on the land. If anything remained to be done (as between the vendor and purchaser) to complete the contract, I admit the property would not have passed. But when I find that the trees were marked and measured, and the length and girth of the several trees having been taken by the servants of the vendor, and by Jenkins the purchaser, the cubic feet were then taken, and the figures put down on paper, it seems to me that there was a perfect measurement and ascertainment of the price; the mere omission to add up the contents is too trifling an incident to warrant us in holding that anything remained

S. C.

Wood v. Manley, 11 Ad. & E. 34.

(p) Hammond v. Anderson, 4 B. & P. 69.

to be done for the completion of the contract. The question then is, whether or not the vendor had a right to stop the goods, the price not having been paid. He would undoubtedly have had such a right, had the delivery not been complete. By the terms of the bargain the land was made a warehouse for the purchaser," (for the cutting up and conversion of the timber.) "It further appears that the purchaser took away several of the trees as he wanted them: this shows that the vendor had given him a general license to carry them away, and that he did not intend to retain any property in them himself; there has been therefore a complete sale and delivery, and the vendor's interference came too late." (q)

When a sale by a bailee or wrongful possessor shall bind the true owner.-Generally speaking, a person cannot convey to another a better right or title to a chattel than he himself has, and a person who has wrongfully obtained possession of goods, cannot transfer them to another except by a sale in market overt. (r) But "if the real owner of property suffer another to have possession of it, and to have those documents which are the muniments of title, a sale by such a person shall bind the true owner." (s) And if the owner of goods voluntarily allows another to treat the goods as his own, whereby a third person is induced to buy them bona fide, the owner is bound by such sale, and cannot afterwards claim the goods from the purchaser. (t)

Before the price has been paid, the owner is entitled to come forward and adopt the contract, and claim the payment of the price to himself, and the payment to such owner is of course in all cases a defence against an action brought by a person who has sold goods, either under a real or under a false and pretended authority. (u)

The right of restitution of the owner of goods and chattels stolen, or obtained by false and fraudulent pretences, with intent to defraud the owner, and sold to third parties, has been regulated by divers acts of parliament, and the owner prosecuting to conviction is now, it should seem, entitled to the goods, even though they shall have been sold in market overt. (x) There are exceptions in the case of valuable securities, and

(2) Tindal and Park, J's., Tansley v. Turner, 2 Sc. 241, 2; 2 Bing. N. s. 151, s. c.

(r) Bristol v. Wilsmore, 1 B. & C. 514; 2 D. & R. 755, s. c. Noble v. Adams, 7 Taunt. 59. Peer v. Humphrey, 2 Ad. & E. 495, 499. Wilkinson v. King, 2 Camp. 335. Loeschman v. Machin, 2 Stark. 311. Lyons v. De Pass, 11 Ad. & E. 326. Williams v. Barton, 10 Moore, 520; 3 Bing. 145, s. c. Littledale, J., Dixon v. Yates, 5 B. & Ad. 339.

(s) Abbott, C. J., Dyer v. Pearson, 4 D. & R. 653; 3 B. & C. 42. Pickering v. Busk, 13 East,

43, 44. Boyson v. Coles, 6 M. & S. 26.
ley, J., ib. 23, 24; 5 & 6 Vict. c 39.

Bay

Dick

(t) Gregg v. Wells, 10 Ad. & E. 90. (a) Post, ch. 9. Principal and agent. enson v. Naul, 4 B. & Ad. 638. Allen v. Hopkins, 13 M. & W. 94; 13 Law J. Rep. N. s. (Ex.) 316, s. c.

(x) 7 & 8 Geo. 4, c. 27, c. 29, s. 57. Gimson v. Woodfall, 2 C. & P. 41; 2 Ad. & E. 449; Kelynge, 480. Foxley's case, 5 Co. Rep. 109; 2 & 3 P. & M. c. 7; 31 Eliz. c. 12; 2 & 3 Vict. c. 71, s. 27, 28, 29.

negotiable instruments transferred bona fide for a valuable consideration, and without notice or suspicion.

Colourable sales to defraud creditors.-By the acts of 13 Eliz. c. 5, and 29 Eliz. c. 5, which are, however, merely declaratory of the common law, it is enacted that all gifts, bargains, and conveyances of goods and chattels, made with intent to defraud or delay creditors, shall be utterly void as against the parties intended to be defrauded and delayed.

Any bargain and conveyance of goods and chattels made by a person in debt, whether it be by deed or simple contract, is primâ facie fraudulent, unless it be accompanied with a transfer of the possession of the things sold. (y) Where, therefore, a debtor by a bill of sale bargained and sold to his creditor all his household furniture, medicines, stock in trade, goods, chattels, and effects in his dwelling-house; and upon the execution of such bill of sale, handed a corkscrew to the purchaser, as a symbolical delivery, and constructive transfer of the possession of the goods and chattels so sold, but the debtor still continued in the actual possession and enjoyment of them, it was holden that the bill of sale was void. (z) But this prima facie presumption of fraud may of course be rebutted by contradictory evidence, and the parties are at liberty to show, if they can, from surrounding circumstances and the general nature of the transaction, that the sale was not merely colourable or fraudulent, or made with a view of delaying or defeating the claims of creditors, but that the transaction was bona fide, and that the party who claims the goods has actually bought and paid for them, or has made himself liable to pay for them with his own money; and the sale and transfer, however fraudulent and void as against creditors, is operative as between the immediate parties to it, and all such persons as are privy and consenting to the transaction. (a)

(y) Twyne's case, 3 Co. 80; Moore, 638, s. c. Meggott v. Mills, 1 Ld. Raym. 286. Wordall v. Smith, 1 Campb. 333. Paget v. Pritchard, 1 Esp. 204.

(2) Edwards v. Harben, 2 T. R. 587.

(a) Leonard v. Baker, 1 M. & S. 251. Dawson v. Wood, 3 Taunt. 256. Kid v. Rawlinson, 2 B. & P. 59. Woodham v. Baldock, 3 Moore, 11. Eastwood v. Brown, 1 R. & M. 312. La

timer v. Batson, 7 D. & R. 106; 4 B. & C. 652, S. C. Reed v. Blades, 5 Taunt. 212. Dewey v. Bayntun, 6 East, 257. Martindale v. Booth, 3 B. & Ad. 498. Benton v. Thornhill, 7 Taunt. 149. Hawes v. Leader, Cro. Jac. 271. Robinson v. M'Donnel, 2 B. & A. 134. Steel v. Browne, 1 Taunt. 381. Doe v. Roberts, 2 B. & A. 367.

SECTION II.

AUTHENTICATION OF THE CONTRACT OF SALE BY WRITING WHEN NECESSARY.

When the subject matter of the sale is of the value of 107. and upwards, and the contract has not been consummated by actual delivery, the legislature has, to the requisites previously mentioned as essential to the due formation and establishment of the contract, superadded the necessity of a part acceptance and receipt of the things sold, or a giving of earnest, or a part payment of the price, or an authentication of the contract by writing.

By the 17th section of the act of 29 Chas. 2, ch. 3, commonly called the statute of frauds and perjuries, it is enacted," that no contract for the sale of any goods, wares, and merchandizes, for the price of ten pounds. sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents unto lawfully authorized.

there

This section was held not to extend to contracts for the making and manufacture of goods, i. e. contracts to make and complete and deliver at some subsequent period goods not in existence, and consequently not capable of delivery, or of part acceptance, at the time of the making of the contract; such as contracts to build a ship, or make a chariot, &c., and which were considered to be contracts for work and labour, and the supply of materials, rather than contracts of sale; (a) whereupon the statute of 9 Geo. 4, c. 14, s. 7, was passed, which extends the provisions of the statute of frauds respecting the sale of goods to all contracts for the sale of goods of the value of 107. and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, and rendering the same fit for delivery."

(a) Groves v. Buck, 3 M. & S. 178.