of a contract, that, by the same statute, 29 Car. II. c. 3., no contract for the sale of goods, to the value of 101. or more, shall be valid, unless the buyer actually receives part of the goods sold, by way of earnest on his part; unless he gives part of the price to the vendor by way of earnest to bind the bargain, or in part of payment; or unless some note in writing be made and signed by the party, or his agent, who is to be charged with the contract. And with regard to goods under the value of 101. no contract or agreement for the sale of them shall be valid, unless the goods are to be delivered within one year, or unless the contract be made in writing, and signed by the party, or his agent, who is to be charged therewith. Anciently, among all the northern nations, shaking of hands was held necessary to bind the bargain; a custom which we still retain in many verbal contracts. A sale thus made was called handsale, “venditio per mutuam manuum complexionem ;" (y) till in process of time the same word was used to signify the price or earnest, which was given immediately after the shaking of hands, or instead thereof. As soon as the bargain is struck, the property of the goods is transferred to the vendee, and that of the price to the vendor; but the vendee cannot take the goods, until he tenders the price agreed on. (2)" But if he ten the bargain, and gives the party a right to demand; but then a demand without the payment of the money is void; that after earnest given, the vendor cannot sell the goods to another, without a default in the vendee; and therefore if the vendee does not come and pay, and take the goods, the vendor ought to go and request him; and then if he does not come and pay, and take away the goods in a convenient time, the agreement is dissolved, and he is at liberty to sell them to any other person." 1 Salk. 113. See 3 Campb. 426. Christian. (16) In construing the statute of frauds, the principal difficulty has arisen in determining what acts between the parties amount to a delivery on the one part, and acceptance on the other. An actual delivery by the seller, and acceptance by the buyer, is not necessary in all cases; as where goods are ponderous, delivery of the key of the warehouse in which they are deposited, or by delivery of other tokens of property, is sufficient. 1 Atk. 170. 1 East, 194. Or payment of warehouse rent by the purchaser. 1 Camp. Rep. 452. Where goods are sold by sample, delivery of the sample to the purchaser may be part delivery within the statute, 5 Esp. 267. 7 East, 564; but it is otherwise if the sample be not part of the bulk. 7T. R. 14. Holt's C. N. P. 179. Delivery of an order by the seller, to a wharfinger or warehouseman who has the custody of the goods, to deliver them to the vendee is sufficient to satisfy the statute. 2 Esp. Rep. 598. So, if a purchaser write his name or initials upon the article bought, it will suffice; but other articles bought at the same time will not pass unless the signature is put upon them also. 1 Camp. 233. 235. n. But in the case of Tempest v. Fitzgerald, where the defendant agreed to purchase a horse for ready money, and to take it at a distant specified day, before which day defendant rode the horse and gave directions as to its treatment, but requested that it might remain in plaintiff's possession for a further time, when he would fetch it away and pay the price to which plaintiff assented, and the horse died in the interval, it was held that there was no acceptance of the horse within the meaning of the statute of frauds. In this case there was no earnest given, nor part payment, nor any note or memorandum in writing, which distinguishes it from the case in the text; and as it was a ready money bargain, the purchaser could have no right to take away the horse till the price was paid, and of course there could be no acceptance on the part of the defendant. These cases will illustrate the principle on which the statute of frauds is founded, the object of which (in the language of Mr. J. Holroyd) was to remove all doubts as to the completion of the bargain, and it therefore requires some clear and unequivocal acts to be done in order to shew that the thing had ceased to be in fieri. 3 Bar. & Ald. 684. Chitty. (17) It has long been settled that delivery to an agent of the vendee (and for this purpose common carriers, packers, and wharfingers, are considered to stand in that character) is for most purposes a delivery to the vendee himself. But this species of delivery affords a security to the vendor, upon credit, which does not exist where the delivery is actually made to the vendee himself; for if the vendor discover that the vendee is insolvent, or has become bankrupt, he may seize upon the goods so sold upon credit, and delivered into the hands of such carrier, &c. at any time before their actual and complete delivery to the vendee. This branch of the law is called STOPPAGE IN TRANSITU, and though not referred to in the text, may be properly stated in this place, from its importance in the concerns of trade and commerce. This law is founded upon an equitable right in the vendor to retain the goods until the price be paid or tendered, for stoppage in transitu does not rescind the contract of sale, 1 Atk. 245. 3 T. R. 466. 6 East, 27.; and if ders the money to the vendor, and he refuses it, the vendee may seize the goods, or have an action against the vendor for detaining them. And by a regular sale, without delivery, the property is so absolutely vested in the vendee, that if A sells a horse to B for 101. and B pays him earnest, or signs a note in writing of the bargain; and afterwards, before the delivery of the horse, or money paid, the horse dies in the vendor's custody, still he is entitled to the money, because, by the contract, the property [449] was in the vendee. (a) 18 Thus may property in goods be transferred by sale, where the vender hath such property in himself. But property may also in some cases be transferred by sale, though the vendor hath none at all in the goods; for it is expedient that the buyer, by taking proper precautions, may at all events be secure of his purchase; a Noy. c. 42. the vendor afterwards offer to deliver them, he may, unless he has resold them, recover the price, which he could not do if by stopping in transitu the sale was rescinded, 1 Camp. 109. 6 Taunt. 162. The right extends to every case in which the contract is in effect a sale, and the consignor substantially the vendor of the goods. 3 East, 93. Amb. 399. 3 T. R. 783. It extends also to contracts of exchange, as to an agreement between consignor and consignee that the latter shall return another commodity of equal value in payment, and the fulfilment of which engagement is rendered hazardous by his insolvency. Sittings post M. Term, Guildhall, 1822. 3 Ch. C. L. 346. The consignor of goods for sale on the joint account of himself and the consignee, may exercise this right in the event of the bankruptcy or insolvency of the latter, 6 East, 371.; but it does not arise between principal and factor, for the property is never devested out of the principal, and the factor as against him has only a right of lien upon the goods, and he cannot, after parting with them, repossess himself of them while in transitu, 1 East, 4. 2 New. R. 64. Nor can the surety for the payment of the price of goods by the vendee, though he may have accepted the bills drawn upon him by the consignee for that purpose, stop the goods in transitu. 1 Bos. & Pul. 563. If a party, being indebted to another, on the balance of accounts, including bills of exchange running accepted by the latter, consign goods to him on account of this balance, the consignor has no right to stop them in transitu, upon the consignee becoming insolvent before the bills are paid. 4 Campb. 31. If a sale be legalized by licence, and the vendor be an alien enemy, he may stop the goods in transitu, 15 East, 419.; and any authorized agent of the consignor may exercise the right. See 1 Campb. 369. Though the consignment must be on credit, at least for some part of the price, yet partial payment, acceptance of bills on account of, and not as actual payment, or the vendor's being indebted to the vendee in part of the value, will not defeat the right to resume possession before actual delivery to the vendee. 7T. R. 440. 64. 3 East, 93. 2 Vern. 203. It is necessary that the consignee should become bankrupt or be insolvent, for the vendor to exercise this right. 6 Robinson Ad. R. 321. It is not necessary that the vendor, to exercise this right of stoppage, should actually take possession of the property consigned by corporal touch; he may put in his claim or demand of his right to the goods in transitu, either verbally or in writing, and it will be equivalent in law to an actual stoppage of the goods, provided it be made before the transit has expired, 2 B. & P. 457. 462. 2 Esp. R. 613. Co. B. L. 494. 1 Atk. 245. Amb. 399. 3 East, 394. This right may be exercised by making out a new invoice or bill of lading, Holt, C. N. P. 338.; but such a claim on the part of the consignee would not be sufficient to devest the former of his right. 2 Esp. 613. 5 East, 175. 14 East, 308. The transitus in goods continues till there has been an actual delivery to the vendee or his agent expressly authorized for that purpose, with the express or implied consent of the vendor to sanction such delivery. 3 T. R. 466. 5 East, 181. The delivery of goods to the master on board a ship wholly chartered by the consignee, is not such a delivery to the vendee as to put an end to the transitus; for the master is a carrier of both consignor and consignee ; and till a ship is actually at the end of her voyage, the right of stoppage in transitu continues: and where a ship came into port without performing quarantine, when she ought to have done so, and the assignees of the consignee, who had become bankrupt, took possession of the goods, and the ship was ordered out of port, to perform quarantine, where an agent of the consignor claimed the goods on behalf of his principal, it was held that the consignor had properly exercised and might claim a stoppage in transitu. 1 Esp. 240. And goods deposited in the king's warehouses under 26 Geo. III. c. 59. may be stopped in transitu, though they have been claimed by the consignee. 2 Esp. 663. On the other hand, the transitus may be determined by delivery of the key of the warehouse where the goods are deposited to the vendee, 3 T. R. 464. 8 T. R 199., or payment of rent for such warehouse to the vendor, or to the wharfinger with the vendor's privity, 1 Campb. 452, 2 Camp. 243. 1 Marsh. 257, 8. And in all similar cases of constructive delivery and acceptance, the right to stoppage in transitu is at an end. See 7 Taun. 278. 2 Bar. & Cres, 549. 1 Bayn. & Moody, N. P. C. 6. and 3 Chitty's Com. L. 340. Chitty. (18) When not, see 3 Bar. and Ald. 684, and ante 448. n. 16. 19 otherwise all commerce between man and man must soon be at an end. And therefore the general rule of law is, (b) that all sales and contracts of any thing vendible, in fairs or markets overt, (that is, open,) shall not only be good between the parties, but also be binding on all those that have any right or property therein. And for this purpose, the mirroir informs us, (c) were tolls established in markets, viz. to testify the making of contracts; for every private contract was discountenanced by law: insomuch that our Saxon ancestors prohibited the sale of any thing above the value of twenty pence, unless in open market, and directed every bargain and sale to be contracted in the presence of credible witnesses. (d) Market overt in the country is only held on the special days, provided for particular towns by charter or prescription; but in London every day, except Sunday, is market day. (e) The market place, or spot of ground set apart by custom for the sale of particular goods, is also in the country the only market overt; (f) but in London every shop in which goods are exposed publicly to sale, is market overt, for such things only as the owner professes to trade in. (g) But if my goods are stolen from me, and sold, out of market overt, my property is not altered, and I may take them wherever I find them. And it is expressly provided by statute i Jac. I. c. 21., that the sale of any goods wrongfully taken, to any pawnbroker in London, or within two miles thereof, shall not alter the property: for this, being usually a clandestine trade, is therefore made an exception to the general rule. And even in market overt, if the goods be the property of the king, such sale (though regular in all other respects) will in no case bind him; though it binds [450] infants, feme-coverts, idiots, and lunatics, and men beyond sea or 20 in prison or if the goods be stolen from a common person, and then taken by the king's officer from the felon, and sold in open market; still, if the owner has used due diligence in prosecuting the thief to conviction, he loses not his property in the goods. (h) So likewise, if the buyer knoweth the property not to be in the seller; or there be any other fraud in the transaction; if he knoweth the seller to be an infant, or femecovert not usually trading for herself; if the sale be not originally and wholly made in the fair or market, or not at the usual hours; the owner's property is not bound thereby. (i) If a man buys his own goods in a fair or market, the contract of sale shall not bind him, so that he shall render the price unless the property had been previously altered by a former sale. (k) And notwithstanding any number of intervening sales, if the original vendor, who sold without having the property, comes again into possession of the goods, the original owner may take them, when found in his hands who was guilty of the first breach of justice. (1) By which wise regulations the common law has secured the right of the proprietor in personal chattels from being devested, so far as was consistent with that other necessary policy, that purchasers, bona fide, in a fair, open, and regular manner, shall not be afterwards put to difficulties by reason of the previous knavery of the seller. b 2 Inst. 713. d LL. Ethel. 10. 12. LL. Fadg. Wilk. 180. cc. 1. § S. e Cro. Jac. 68. (19) As to sales in market overt in general, see 2 Chitty's Commercial L. 148 to 154. Com. Dig. tit. Market, E. Bac. Ab. tit. Fairs and Markets, E. 5 B. & A. 624. (20) The owner of goods stolen, who has prosecuted the thief to conviction, cannot recover the value of his goods from a person who has purchased them and sold them again, even with notice of the theft, before the conviction. 2 T. R. 750. Christian. But there is one species of personal chattels, in which the property is not easily altered by sale, without the express consent of the owner, and those are horses. (m) For a purchaser gains no property in a horse that has been stolen, unless it be bought in a fair or market overt, according to the direction of the statutes 2 P. & M. c. 7. and 31 Eliz. c. 12. By which it is enacted, that the horse shall be openly exposed, in the time of such fair or market, for one whole hour together, between ten in the morning and sun-set, in the public place used for such sales, and not in any private yard or stable; and afterwards brought by both the vendor and vendee to the book-keeper of such fair or market; that toll be paid, if any be due; and if not, one penny to the book-keeper, who shall enter down the price, colour, and marks of the horse, with the names, additions, [451] and abode of the vendee and vendor; the latter being properly attested. Nor shall such sale take away the property of the owner, if within six months after the horse is stolen he puts in his claim before some magistrate, where the horse shall be found; and, within forty days more, proves such his property by the oath of two witnesses, and tenders to the person in possession such price as he bona fide paid for him in market overt. But in case any one of the points before-mentioned be not observed, such sale is utterly void; and the owner shall not lose his property, but at any distance of time may seize or bring an action for his horse, wherever he happens to find him. 21 By the civil law (n) an implied warranty was annexed to every sale, in respect to the title of the vendor; and so too, in our law, a purchaser of goods and chattels may have a satisfaction from the seller, if he sells them as his own and the title proves deficient, without any express warranty for that purpose. (o) But with regard to the goodness of the wares so purchased, the vendor is not bound to answer: unless he expressly warrants them to be sound and good, (p) or unless he knew them to be otherwise, and hath used any art to disguise them, (9) or unless they turn out to be different from what he represented them to the buyer. 22 2. Bailment, from the French bailler, to deliver, is a delivery of m 2 Inst. 719. n Ff. 21. 2. 1. o Cro. Jac. 474. 1 Roll. Abr. 90. P F. N. B. 94. q 2 Roll. Rep. 5. (21) See further as to warranties, post, 3 vol. 166. 3 Chitty's C. L. 302 to 308. (22) As to bailments in general, see Coggs & Barnard, 2 Ld. Raym. 909.; Sir Wm. Jones on Bailments; and 3 Chitty's C. L. 354 to 386. The nature of bailments, though not incorrectly, is very imperfectly treated in the text; it has therefore been thought advisable, for the purposes of practical utility, to arrange the law on this subject, more in detail, in a note. Sir Wm. Jones has divided bailments into five sorts, viz. 1. Depositum, or deposit. 2. Mandatum, or commission, without recompense. 3. Commodatum, or loan for use, without pay. 4. Pignori acceptum, or pawn. 5. Locatum, or hiring, which is always with reward. This last is subdivided into, 1 Locatio rei, or hiring, by which the hirer gains the temporary use of the thing. 2. Locatio operis faciendi, when something is to be done to the thing delivered. 3. Locatio operis mercium vehendarum, when the thing is merely to be carried from one place to ano ther. 1. Depositum, or deposits, where the property bailed is to be kept by the bailee, for no particular purpose, without recompense. In this case the bailee must exercise the same degree of care (apportioned to the nature and value) as a man of ordinary prudence would bestow upon his own property under the like circumstances, Willes Rep. 121. 2 Stra. 1099.; and he is not liable for loss, arising from an accident, over which he or his agent had no control. 4 T. R. 581. Selw. N. P. 397. 5th edit. 1 B. & A. 62. 1 Campb. 138. But if the bailee be known to the bailor to be a man of extreme negligence in his own affairs, less than ordinary care will suffice. If the goods bailed be of more than their apparent value, or require a particular kind of care, and that fact be concealed from the bailee, and he has no easy means of ascertaining it, he would not be liable for their loss, provided he used ordinary care, Ld. Raym. 912.; but he is bound by his promise to exercise more than ordinary care. 4 Coke, 83. Or where such promise may be impli ed, as where the bailee officiously proposes to keep the goods of another, by which the bailor is VOL. I. 93 goods in trust, upon a contract expressed or implied, that the trust shall be faithfully executed on the part of the bailee. As if cloth be de prevented from depositing them elsewhere. Jones on Bailm. 50. A bailee is in all cases liable for fraud or gross negligence, but not if the goods be stolen from him. 2 Stra. 1099. Willes, 121. A bailee of this class cannot detain the bailment, or dispose of or pawn it against the consent of the bailor. 15 East, 42. 1 Wils. 8. 9. As against third persons he may maintain sn action for any injury done to the property bailed, though he be not liable over to the bailor. 1 B. & A. 59. If bills deposited with a banker be destroyed by accident without his default, the loss would not fall on him. 2 B. & C. 433. And where A. hired a room in the house of B. at two shillings a week, for the purpose of depositing goods for safety, and kept the key of a padlock by which the room door was fastened, and the goods were stolen by one of B.'s family, it was held that B. could not be sued as bailee, for the value of the goods stolen. 4 D. & A. 636. 2. Mandatum, is where the bailee undertakes to do something to, or simply carry the bailment, without recompense. The duty here lies in feazance, the former in custody, and the same general principles prevail. The bailee is considered as having engaged himself to use a degree of diligence and attention adequate to the undertaking. He is neither to do any thing which may obstruct, or omit any thing (within his usual ability and skill) necessary to accomplish his undertaking in a proper manner, Ld. Raym. 909. Jones, 51. 5 T. R. 245.; but if the task be out of his regular employment or profession, and he undertake it at the request of the bailor, he is not liable, if any damage ensue from his performing it inartificially. 1 H. B. 153. But if a party delude another with false pretentions to skill, then he is responsible for any injury occasioned by such delusion. 8 East, 348. This bailee is at all times liable to re-deliver to the bailor, whe ther the purpose for which the thing was bailed has been fulfilled or not, as in the case of stakeholders, who must be ready to deliver the stake to either party. 7 Price, 540. 3. Commodatum is where property is intrusted to the bailee without pay, to be used by him for his own benefit, and may be termed loan for use, in contradistinction to loan for consumption, where the same quantity or value, as of money, wine, corn, &c. is to be returned to the lender. More care is due from the bailee in this species of bailment, than in either of the preceding, Lecause he is the only party benefitted, and he is liable if it be stolen, unless he shew that he used extraordinary care to prevent its being taken. Jones, 65. Nor will he be excused if it be lost by irresistible force, if he put the property in the way of it, by his own rashness or imprudence. Jones, 67. Ld. Raym. 915. And if the borrower obtained the property by any deceit, he is liable, although the accident or loss be inevitable. But if the property be lent for a purpose in which borrower and lender have a common interest, the former is only answerable for ordinary care, Jones, 72.; and if lent for the sole advantage of the lender, the borrower is responsible for gross neglect only. A person having the gratuitous loan of a chattel, cannot, in general, lend or let it to a third person. 1 Mod. 210. 4. Pignori acceptum, or Pawns, is the bailment of a thing as a security for a debt. Under this head the law for the regulation of pawnbrokers may be considered. The general liabilities and restraints are the same in this and the preceding classes of bailments. A pawnee of goods cannot use them without the consent, express or implied, of the owner; consent is implied where the thing would be the better for using, as a horse, a cow, setting dogs, &c. Bull N. P. 72. a. Jones, 81.; but not where they would be the worse, as jewels, &c. Ld. Raym. 917. Owen, 123. Jones, 80. Pawnbrokers. In addition to the common law liabilities as above detailed, pawnbrokers are regulated in their dealings by the 39 and 40 Geo. III. c. 99. which fixes the rate of interest to be taken by them, and prescribes the mode of disposing of the bailments when not claimed within the year, and the means to facilitate the detection of stolen property which may be offered to them in pledge. A pawnbroker has no right to sell property pledged after the expiration of a year from the time it was pledged, after the original owner has tendered to him the principal and interest due; the intention of the act being that the pawnproker may sell then to reimburse himself, and not by the words " shall be deemed forfeited" to vest the whole property in him. 5 Bar. & Ald. 439. 1 Dowl. & Ryl. 1. S. C. The taking more interest than the statute allows is an offence cognizable by a magistrate. 12 East, 673. The statute provides, that upon the sale of property above the value of ten shillings, according to the act, the surplus beyond principal, profit, and reasonable expenses of the sale, shall be paid to the pawner or his legal representative, upon being claimed at any time within three years. See further the 1 Jac. I. č. 21. 5. Locatum, or Hiring; under which there are, as already stated, three classes of bailments First, When the thing is let to hire for reward, by which the hirer gains a temporary qualified property in the thing hired, and the owner acquires an absolute property in the stipend or price of the hiring. The necessary degree of care will be collected from the following instances: if A. hire a horse he is bound to ride it as moderately, and feed and treat it as well, as any commonly discreet man would his own. 2 Bro. and Bing. 359. 5 Moore, 74. S. C. 5 Esp. 35. If the horse be ill and he does not employ a farrier, but imprudently gives medicines to it himself, 3 Camp. 5., or exhausted, and he still uses it, he is answerable for any injury which may arise in consequence; or if he leave the door of his stable open at night, and the horse be stolen, he will be answerable for it, Jones, 89.; but he would not be liable for any injury or loss occasioned without his default, 3 Camp. 5. in notes; nor would he be liable if he called in a farrier, and he adininistered improper medicines. 3 Camp. 5. If A. hire a carriage and any number of horses, and the owner send with them his postillion or coachman, A. is discharged from all attention to |