Hill for him, they should be returned.

This letter

was shown by Hill to Salte, the seller of the goods, on the 18th of May, about nine o'clock in the evening, who then informed Hill that he was ready to take back the goods. On the same day, and on the next day, the goods were attached in the hands of the packer, by several other creditors of Dewhurst. The goods having been demanded by Salte, the seller, and the packer refusing to deliver them up, he brought an action of trover against the packer for the goods. The Court considered that the contract was here put an end to by consent of both parties, and that the property in the goods had revested in the plaintiff (p). Another case came soon after, before the Court, respecting goods sent to the same person Dewhurst, which had also been sent to the same packer. On the receipt by Hill, of the letter of Dewhurst above mentioned, on the 18th of May, he applied to Scott, one of the vendors of the goods, but Scott, supposing that Hill was not authorized in law to deliver the goods back to him, attached them on the next day in the hands of the packer. It was held by the Court that the attachment by the vendors was to be considered as an election by them not to rescind the contract, and consequently, that the goods did not revest in the vendor (q).

It is necessary to observe, that the case of Salte v. Field was decided on the ground, that the authority of the agent had been put an end to by his principal

(p) Salte v. Field, 5 T. R. 211. See Parry v. Dawson, Anstr. 710.

(q) Smith v. Field, 5 T. R. 402.

before the goods were purchased by the agent, and that a delivery to the agent did not, under those circumstances, amount to a delivery to the principal. But where the contract has been completed by a delivery of the goods to the purchaser, he cannot afterwards, on account of being in a state of insolvency, rescind the contract, though the seller agree to take back the goods, because it would be to the prejudice of the other creditors of the purchaser (r). It is observable, that Lord Kenyon, speaking in this case of the decision of the Court in Atkin v. Barwick, adopts the idea thrown out by Lord Mansfield, that the vendee had, before the arrival of the goods, refused to accept them; and on their arrival had sent them to a friend of the consignor for his use. This important fact of the refusal of the vendee, previously to the arrival of the goods, to accept them, does not appear in either of the reports. If the fact were really so, there seems no difficulty in sustaining the case; if, on the other hand, the sale was actually completed by the delivery of the goods to the purchaser before any dissent to the contract expressed on his part, it appears quite impossible to reconcile that decision with Barnes v. Freeland. It is also to be observed, that Mr. Justice Chambre, in a case which will be next adverted to, said, that perhaps, if a case precisely similar to Atkin v. Barwick were now to arise, it would not receive the same decision. The circumstances there were as follow: Goods had been consigned to A. who, previously to receiving them, being in a

"(r) Barnes v. Freeland, 6 T. Rep. 80 and see Harman

v. Fishar, Cowp. 123; Haswell v. Hunt, 5 T. R. 231.

state of insolvency, sent a letter to the seller revoking the order; after which, the goods arrived at a wharf for A., and on the seller claiming the goods, the wharfinger refused to deliver them to him, and claimed, a general lien upon them for a balance due from A. to him. The Court ruled, that by the countermand the goods re-vested in the seller (s).

Where, by the course of dealing between A. and B. the latter was allowed an option either to retain or to return the goods sent by the former, A. sent goods to B. which arrived on the 19th of February. B. after keeping them in his possession till March the 4th, sent part of them back on that day, and the remainder on the next day, he being at that time in a state of insolvency, and committing an act of bankruptcy on the evening of the 5th of March, after the goods were returned. The Court held the transaction an illegal preference in contemplation of bankruptcy, and that the property in the goods remained in B. notwithstanding the return, and on his bankruptcy vested in his assignees (t).

It is not to be inferred from the cases referred to above, that the mere circumstance of the vendee believing himself to be insolvent, will take away his authority to rescind the contract, and return the goods. It is a question for the Jury, whether the return was made bonâ fide, or from any motive of voluntary and undue preference, and if done bond fide the property will revest in the seller by the return (u).

(s) Richardson

3 Bos. & Pul. 119.

(x) Dixon v. Baldwen, 5 East,

V. Goss,

175.

(t) Neate v. Ball, 2 East,

L

A material alteration of the sale-note, made after the sale by the broker, at the instance of the seller, without the knowledge of the buyer, will so far vitiate the contract as to prevent the seller suing on it (x).

The conclusion to be drawn from the cases cited above seems to be this: that a purchaser who is in a state of insolvency may, at any time before goods come into his actual possession, rescind the contract, with the consent of the seller; but when goods have been actually received into the possession of the purchaser he cannot rescind the contract, and by returning them to the seller prevent their being applied in satisfaction of his general debts.

CHAP. VII.

Of the Transfer of the Property in the thing sold from the Vendor to the Vendee.

THE next subject of inquiry will be at what time, and by what means, the property in the thing sold is transferred from the seller to the purchaser, and becomes vested in the latter. The most simple mode of transfer is by the actual delivery of the goods sold by the vendor to the vendee; but it is often a matter of some difficulty to ascertain what particular facts amount to a delivery. It is not in all cases necessary that there should be an actual delivery to the vendee

(x) Powell v, Divett, 15 East, 29.

or if there be any particular reasons why there should not be an actual delivery of the whole, the delivery of a part, or of the key of a warehouse in which the goods are contained, as a symbol or representative of the goods, will have the same effect in law as the actual delivery of the whole; the delivery of goods to a carrier, for the purchaser, will, in general, vest the goods in the purchaser; and an indorsement of a bill of lading will have the like effect as to the person to whom it is indorsed. These different modes of transferring the property in goods will be considered in the present chapter; but we will first turn our attention to certain cases, in which the seller is said in law to have a lien on the goods, that is, a right to detain them till the buyer pays the price.

1. When a contract for the sale of goods is completed by the assent of both parties, the property in the goods is so far transferred to the vendee as to give him a complete right to them on payment of the price agreed upon; but he cannot take the goods until he tenders the price to the vendor. If he tender the price, and the vendor refuse it, the vendee may then seize the goods, or have an action against the vendor for detaining them. The payment of part of the price by way of earnest will also vest the property in the thing sold. Thus, if a man sell a horse to another, and receive part of the price, and the horse die while in the possession of the vendor before delivery to the vendee, or payment of the remainder of the purchase-money, still the vendor is

L 2