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as to bind the bargain. Delivery is not necessary in Scotland to complete and render binding this parole contract; but it is required to pass the property from the seller to the buyer. In both systems of law, however, it is necessary to attend particularly to the description of delivery sufficient to produce those several effects. In England, under the statute of frauds, delivery requires to be completed by acceptance on the part of the buyer, in order to prove the mutual assent of the parties by which alone the sale is constituted. In Scotland, the proof of the contract being otherwise supposed complete, the requisite of delivery is referable to another principle, namely, whether the seller having received the price, or being satisfied with the buyer's engagement to pay it, has by an overt act clearly indicated that he has abandoned all right of ownership to the buyer, and given up the commodity to his disposal, without leaving such ground of reputed ownership in himself as to raise a fale credit,
The question of delivery in the English and American *law, under the statute of frauds, has already been considered.(a) The doctrine
[*115] of delivery in Scotland to pass the property will now deserve attention.
As it is not enough to save the goods from the seizure by the creditors of the seller that the price is already paid, it thus becomes a matter very important for the purposes of substantial justice, that the description of delivery, sufficient to change the property, should be as much as possible enlarged, without infringing the principle, that without delivery there can be no transference,
Strictly speaking, the delivery of an article sold implies that it is placed in the actual corporal possession of the buyer. But the impossibility in some cases, the difficulty, or inconvenience in others, is so great, of accomplishing this actual delivery, that, in legal construction, some acts have, in cases where the price is paid or secured, been considered as delivery, though not answering fully to this description. These acts are called acts of constructive delivery, as contradistinguished from those of actual delivery.
It is necessary to prove actual delivery only where the question relates to the seller's lien for the price, or to his right to stop in transitu, and for this purpose to establish that the seller has given up all hold on the goods as already in the buyer's possession and disposal. In questions of ownership, as against the seller or his creditors, it seems unnecessary to go so far, but sufficient to shew such fair indication of the goods being sold, as may avoid any false credit to the seller; and such are these acts recognised as constructive delivery.
Some acts may thus be admitted as delivery by construction of law, *although the goods may still remain within the premises of the sel
[*116] ler, provided they are marked with any badge of transference. Others may be so recognised when the goods have left the immediate possession of the seller, though they have not yet come within the power of the buyer. And,
1. Where the thing sold is so bulky as not to be easily removed on the purchase being made, it is a sufficient delivery to place it in a grange, or warehouse, or cellar, and give or send the key to the buyer. It is so held in England in questions under the statute of frauds. Thus, Lord Kenyon, in a case where a stack of hay was sold, but not removed from the spot, took
(a) Ante, p. 41.
occasion to lay it down : "Where goods are ponderous and incapable, as here, of being handed over from one to another, there need not be an actual delivery, but it may be done by that which is tantamount, such as the delivery of the key of a warehouse in which the goods are lodged, or by delivery of other indicia of property.”(6)
In the Roman law, and in the law of Scotland, it is settled that delivery of the key of a warehouse, in which goods are lodged, is sufficient as a constructive delivery (C)
2. Goods sold, and delivered to a carrier or shipmaster, are held to be delivered to the buyer, so as fully to entitle him, in preference to the creditors of the seller, to demand them from the carrier, on payment of the price, or
during the period of allowed credit, where he *is not vergens ad [*117]
inopiam. This is settled both in England and in Scotland ; and not only where the carrier is selected by the seller, but also where he is appointed by the buyer.(d)
3. Where goods are delivered to a wharfinger to be by him sent to the buyer, or where they are placed in his hands by a shipmaster or carrier, who has brought them from a distance, it is a delivery to pass the property to the buyer, though still the goods may be liable to stoppage for the price. This also is settled in both countries.
4. Where the delivery of a cargo has begun to be made, it is an effectual delivery by construction of law, even of the part still in the course of delivery, to the effect of changing the property.(e)
The cases in which doubts have chiefly been entertained, are those in which the goods still remain in the open possession of the seller, but as to which he has done all that is incumbent on him, or possible, or usual, consistently with the mutual convenience of the parties, to place the goods at the disposal of the buyer; as where goods bought in a shop and paid for are put aside to be sent for by the buyer; or cattle or horses sold are placed in a separate field or stable for the buyer; or wine is placed in a separate binn for the buyer; or goods are measured or weighed and set apart and marked for the buyer.
The difficulty in all those cases is to reconcile the rule to which the prin[*118]
ciples of the Roman law, as followed *in Scotland and in Holland,
plainly lead, with the substantial justice of the case, and with the rule settled in England and America, and now, from its equity, adopted in modern France. While there is nothing which can fairly answer to the description of delivery of the goods, the principle of the Roman and Scottish Law undoubtedly is, that the goods remaining with the seller under an obligation to deliver them, the buyer is a creditor only for the delivery, having a personal action to that effect, but no real right; and the consequence of this is, that, on the seller's bankruptcy, his creditors take the goods as still untransferred. In a case where 98 bolls of wheat were sold to a baker, and being,
(6) Chaplain v. Rogers, 1 East, 192. See also Simon v. Motivos, 3 Bur. 1921. (C) 2 Instit. i. $ 45; Dig. 41, t. 1, 1. 9, 9 6; 2 Ersk. i. 19. More v. Brodie, 3d July 1801; 1 Bell. Com. 175. Maxwell and Co. in the House of Lords, 5 Wilson and Shaw, 269; 1 Bell's Illus. p. 400.
(d) Litt v. Cowley, 7 Taunt. 169; 1 Bell's Illus. p. 192. (e) See Abbot on Shipping (Shee's Ed.,) 468. Slubey v. Heyward, 1793; 2 Hy. Blackst. 504; 1 Bell's Illus. p. 384. Hammond v. Anderson, 1804; 1 Bos. and Pul. New Coll. 69 ; 1 Bell's Illus. p. 384.
with other wheat of the same quality, lodged in the seller's granary, an order was given to the buyer on the servant who had the charge of that granary, to deliver the wheat when called for, it being the established custom of the baker trade so to purchase wheat, and take it out of the granary as required. In the Court of Session there was a difference of opinion on the Bench, Lord President Blair having stated the principles of the Scottish law as leading, in such a case, to the conclusion that there was no delivery, and so, that the creditors of the seller were preferable to the buyer ; but the majority of the Judges held the delivery sufficient.(f)
In another case, where cattle were sold by public sale, in the articles of which it was agreed that the cattle sold should be kept fourteen days without hire, the cattle purchased were accordingly put into a field belonging to the seller, to be kept for the buyer, and *on the bankruptcy of the seller, his creditors claimed them as untransferred. The Judges were equally divided; but it was agreed that judgment should stand for the buyer, in order that the case might be carried to the House of Lords; but it was settled out of Court.(g)
It is much to be regretted that this case was not carried to the House of Lords, so that a question of so much importance, and in which the law of England, America, and France, would have held the property as transferred, might have been decided in the last resort.
In the only case that has since occurred, an act of delivery was held sufficient, although the goods still remained in the premises of the seller. A pipe of port wine had been sold and paid for, was bottled off for the buyer, and placed in a binn appropriated to his use, and so marked in the binn-book. The question arose on the bankruptcy of the wine-merchant, and the delivery was held complete, so as to pass the property to the buyer.(h) In this case the question may be said not to have occurred in a form so pure as to let the decision be considered as settling the point, for there were some other circumstances besides the mere setting apart of the wine, to indicate a change of property. But, upon the whole, it would certainly be a subject of regret,
if, in the abstract question, any other decision were to be pronounced. For, if the point be held as settled according to the decision of this case, the only
very objectionable part of the doctrine *relative to the passing of goods sold, would, in Scotland as well as England, France, and
[*120] America, be entirely reconcileable with the rules of equity.
contract, in that jurisprudence which recognises sale as a contract rather than a transmutation of the subject of the bargain.
But the right of the seller to be secured in payment of the price, may, on the same principle, be carried beyond the mere right of retention, and a power given to him to follow after his goods, and order them to be withheld from the buyer, to the effect of continuing his lien upon them, provided they have not actually got into the power and dominion of the buyer.
In ENGLAND, this doctrine has been long established. It was first introduced in courts of equity, and afterwards received in courts of law. The chief difficulty in thus adopting a plain rule of equity, arose from the principle, that, by sale, the property passed to the buyer ; and when that was completed, by the seller ceding the possession, it was difficult to find a principle on which to admit of stoppage, unless on the ground of an entire voidance of
the sale ; and on this point much *controversy arose, while many [*121]
difficulties were foreseen, from the necessary consequence of holding the sale to be annulled.(i)
In SCOTLAND, while the right of retention was held to be a necessary consequence of the reciprocal engagements of the parties, a rule was adopted from the customs and usage of Holland, that even after delivery of the thing sold, it might be recalled and restored to the seller, if the delivery had been procured by fraud ; and bankruptcy of the buyer following shortly after delivery, was held, presumptione juris, to be fraudulent.(k)
This doctrine was perfectly consistent with legal principle, but in practice it did not answer all the uses of the English doctrine of stopping in transitu ; and a case decided in Scotland on the above principle, having been carried by appeal to the House of Lords, the English law of stoppage was introdu
When thus introduced, the doctrine was found to be quite consistent with
the principle of the Scottish law ; *for, while yet the thing had not [*122]
come into possession of the buyer, the act of delivery was incomplete, and might, fairly on principle of lien be stopped, and the middle men acting as the hand of the seller, be directed to withhold delivery.
Different, however, as 'the course has been in the establishment of the doctrine of stoppage in England and in Scotland, and different, also, in the principle on which it rests, the great lines of the doctrine are the same in both countries.
In AMERICA, the law of stoppage, as well as of lien for the price, has been adopted in all its extent; and all the authorities and precedents in England are daily relied on in the courts of the United States.(m)
In HOLLAND, the same principles which in Scotland had led to the remedy of restitution, on the ground of presumed fraud, as an equitable extension of
(i) See the cases of Wiseman v. Vandeputt, 2 Vern. 203; 1 Bell's Illus. p. 403. Snee v. Prescot, 1 Atk. 246; 1 Bell's Illus. p. 401. D'Acquila v. Lambert, Ambler, 399; 1 Bell's Illus. p. 403. Bloxam v. Sanders, 4 Barn. & Cress. 941; 1 Bell's Illus. p. 92. Clay v. Harrison, 10 Barn. & Cress. 99 ; 1 Bell's Illus. p. 287. 412. Steven Stephens v. Wil. kinson, 2 Barn. & Ad. 323. Edward v. Brewer, 2 Meeson & Welsby, 375. See 6 Rob. Ad. Rep. 321.
(k) Inglis v. Royal Bank, June 16, 1736; Mor. 4936. See 1 Bell Com. 245; 1 Bell's Illus. p. 13.
(1) See Allan, Stewart, & Co., v. Stein's Creditors, Dec. 23, 1790; Mo. 4949. 4951 ; 1 Bell Com. 244, note 3, 246, note 2; 1 Bell's Illus. p. 15, 402.
(m) 2 Kent's Com. 541.
the law of mutual contract, had, under the old law, settled the same doctrine in law and mercantile usage.(n) The matter is now regulated by the new Code de Commerce Hollandois, on the following footing,(0)-1st, That on the bankruptcy of the buyer, the price being unpaid, goods sold and delivered may be taken back by the seller within thirty days, provided they have not passed into the hands of a third party, in bona fide, by sale or pledge, or been confounded with the other goods of the buyer, the seller paying the price of carriage, insurance, &c. 2d, The same rule holds proportionally, when a *part only of the price has been paid. 3d, The seller may stop the goods while still on the way to the buyer. 4th, These remedies are
[*123] not competent if the goods have been sold while on their way to the buyer, by transference of bill of lading, in bona fide ; but if the purchaser from the original buyer have not yet paid the price, the original seller is entitled to claim it.
In FRANCE, the principles of the Roman law were at first followed, and restitution or resolution of the sale admitted, even after the actual delivery of the goods, if still capable of identification, where the price was not paid ; but the legislators who prepared the Code de Commerce, proposed that this law should be altered, and the doctrine of stopping in transitu established. This change, with the reasons on which it proceeded, are explained in the . Discours des Orateurs du Gouvernement.”(P) And in the Code de Commerce, the rules of revendication are laid down nearly upon the same grounds with those already alluded to as forming the foundation of the English doctrine.(9)
There thus appears to be great uniformity of doctrine on this subject, in the several countries to whose jurisprudence it is of the most importance to look. That doctrine seems to be reducible to the following propositions :
1. That the delivery is not complete, nor the possession of the seller terminated, till the goods have come within the power and disposal of the buyer.
2. That till this has taken place, the seller has a right to direct the goods to be withheld by the carrier, wharfinger, or other middleman in whose hands they *may be, for the purpose of being forwarded to the
[ *124] buyer.
3. That the seller's right so exercised is grounded in equity, not on the footing of the contract being dissolved, but as a just security for the price; the goods so stopped being in the hands of the middleman no otherwise than they would have been in the seller's own hands, if they had not left his premises, that is, under lien for the price.
4. That the consequence of this is, to give to the buyer or his creditors a right to insist for delivery of the goods on tendering the price, and to the seller a right to demand the price as a debt secured by real lien on the goods. And,
5. That the right of the seller cannot be exercised to the prejudice of any third party who, in bona fide, has received from the buyer a transference by bill of lading, or other negotiable instrument.
(n) Voet ad Pand. lib. 6, t. 1 $ 14. Van Lleeuwen Censura Forensis, lib. 4, c. 19, $ 20. Bynkershoeck, Ques. Jur. Priv. lib. 3, c. 15.
(0) Code de Com. de Hollande, Art. 230, et seq.